Sweet Art Special Events Pty Ltd v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sweet Art Special Events Pty Ltd v Workers Compensation Nominal Insurer (iCare) & Ors [2023] NSWPIC 525
APPLICANT:	Sweet Art Special Events Pty Ltd
FIRST RESPONDENT:	Workers Compensation Nominal Insurer (iCare)
SECOND RESPONDENT:	Craig Michaels
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	05 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application by uninsured employer pursuant to section 145(3); applicant disputed date of injury; that employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of a disease; incapacity; and the reasonable necessity of medical treatment; applicant relied on a defence pursuant to section 11A with respect to the provision of employment benefits; consideration of Hamad v Q Catering Limited, Paric v John Holland (Constructions) Pty Ltd, AV v AW, Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd, ACR v Grace Worldwide Pty Ltd, Kooragang Cement Ltd v Bates, Ponnan v George Weston Foods Ltd, Manly Pacific International Hotel Pty Ltd v Doyle, Irwin v Director-General of Education, Murphy v Allity Management Services Pty Ltd, and State of New South Wales (Central Coast Local Health District) v Bunce; Held – second respondent sustained aggravation, acceleration, exacerbation or deterioration of disease, to which employment with applicant was the main contributing factor; second respondent had work capacity during part of period in respect of which payments made; medical treatment, including provision of a support dog, was reasonably necessary; the applicant did not have a defence to the claim pursuant to section 11A; amount payable to first respondent by applicant reduced.
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 145 of the Workers Compensation Act 1987, the applicant is to pay to the first respondent the sum of $168,627.76.

STATEMENT OF REASONS

BACKGROUND

The second respondent, Craig Michaels (Mr Michaels, the worker), was employed by the applicant, Sweet Art Special Events Pty Ltd (Sweet Art).
The applicant concedes that it did not hold a workers compensation policy as at
28 October 2019, the date on which the worker claims that he is deemed to have sustained injury. It does not otherwise concede that it was uninsured.
The worker completed a worker claim form (the claim form) on 10 January 2020. It recorded a claim number, and was headed “Originally Submitted Sept 2019”, but the original document is not in evidence.
The date of injury was claimed to be approximately 26 July [2019], which was the date the worker became aware of his condition. The injury was “mental abuse”. The worker’s pre-existing depression/anxiety was exacerbated by “bullying”.
By letter dated 13 November 2019, Workers Compensation Nominal Insurer (iCare) advised the applicant that, following an initial notification of injury from the worker, it had decided it had a reasonable excuse not to commence provisional weekly payments of compensation.
The date of injury was recorded as 5 August 2019. The injury was described as “workplace bullying, withholding wages, workplace stress”.
ICare had advised the worker that it had insufficient medical information to establish that he had received an injury or that it was related to his claimed employment.
On 23 January 2020, iCare issued the worker with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
ICare disputed liability for the worker’s claim on the grounds that employment was not the main contributing factor to either the contraction of a disease injury, or the aggravation, acceleration, exacerbation or deterioration of a disease injury. It therefore disputed that
Mr Michaels was entitled to payment of either weekly benefits or medical expenses. The deemed date of injury was stated to be 28 October 2019.
By letter dated 17 August 2020, solicitors acting on behalf of Mr Michaels requested that iCare review its decision.
On 31 August 2020, iCare issued the worker with a notice pursuant to s 287A of the 1998 Act, advising that liability for his injury had been accepted.
By letter dated 8 September 2020, iCare advised the applicant that the worker’s claim had been accepted. The date of injury was 28 October 2019, and the injury was described as “aggravation of generalised anxiety disorder (GAD) and major depressive disorder (MDD)”.
ICare advised that it had decided the applicant was not an employer that was exempt from holding a policy for the 2019/2020 financial year; was an employer that should have held a policy as at 28 October 2019; and was an uninsured employer as at 28 October 2019.
ICare had determined the worker’s pre-injury average weekly earnings (PIAWE) to be $1,153.85 per week, based on his contract of employment.
By letter dated 28 February 2021, the applicant queried iCare’s decision and provided further information. I will discuss this letter and iCare’s response below.
On 21 October 2021, iCare issued the worker with a further notice pursuant to s 78 of the 1998 Act. It disputed liability for provision of a therapy dog, on the grounds that it did not constitute medical or related treatment, pursuant to s 59 of the Workers Compensation Act 1987 (the 1987 Act); and was not reasonably necessary medical treatment, pursuant to s 60 of the Act.
On 23 November 2021, iCare issued the worker with a further notice pursuant to s 78 of the 1998 Act. It disputed liability for ongoing treatment by counsellor Mr Jono Derkenne on the grounds that the treatment was not reasonably necessary; and was provided by a person who was not appropriately qualified to provide it.
By letter dated 3 December 2021, iCare advised the applicant that the worker had been assessed as having no current capacity for work.
On 26 July 2022, iCare issued the applicant with a notice pursuant to s 145(1) of the 1987 Act. ICare sought reimbursement of payments of $195,394.61, made from the Workers Compensation Insurance Fund to or in respect of the worker.
On 11 August 2022, the applicant lodged a Miscellaneous Application (the Application), disputing liability for the reimbursement sought by the first respondent.
The first respondent lodged its Reply on 23 August 2022.
The second respondent lodged his Reply on 11 October 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a)    the date of the injury;
(b)    whether the worker has sustained injury;
(c)    if the injury is a disease injury, whether employment was the main contributing factor to the disease or the aggravation, acceleration, exacerbation or deterioration of the disease;
(d)    the worker’s capacity for work;
(e)    the reasonable necessity of medical treatment, and
(f)    the application of s 11A of the 1987 Act, specifically the provision of employment benefits.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (Commission)

The matter was listed for preliminary conference on 12 September 2022. Mr Macken appeared for the applicant; Mr Dolan appeared for the first respondent, instructed by
Mr Butcher of iCare; and Ms Chieffe appeared for Mr Michaels, who was not at that stage a party to the proceedings.
Directions for further conduct of the matter, including the amendment of the Application to join Mr Michaels as the second respondent, and the grant of leave to the applicant for the issue of Directions for Production were made.
By letter dated 5 October 2022, the worker’s solicitors notified the Commission that the worker claimed legal professional privilege over some documents produced by Dr Brad McKay, his general practitioner (GP).
On 6 October 2022, the applicant’s solicitors advised that the claim of legal professional privilege was opposed.
On 12 October 2022, I directed the parties to provide written submissions on the second respondent’s claim of legal professional privilege.
The second respondent provided his submissions on 18 October 2022. Some of his claims were withdrawn. The applicant made no submissions.
The matter was listed for further preliminary conference on 2 November 2022. Mr Macken appeared for the applicant; Mr Dolan, instructed by Mr Butcher, appeared for the first respondent; and Ms Chieffe appeared for the second respondent.
When I enquired of Mr Macken whether the applicant wished to make submissions on the privilege claim, I was advised that it withdrew its objection to the claim. Directions were made as to further conduct of the matter.
The matter was listed for further preliminary conference on 14 December 2022. Mr Macken appeared for the applicant; Mr Dolan appeared for the first respondent, instructed by
Mr Butcher; and Ms Chieffe appeared for the second respondent. Directions were made as to further conduct of the matter.
The matter was listed for conciliation/arbitration hearing on 14 February 2023, by the Teams platform. Mr Macken appeared for the applicant. Mr Doak of counsel, instructed by Mr Dolan, appeared for the first respondent. Mr Moffet of counsel, instructed by Ms Chieffe, appeared for the second respondent. Ms Leonard, director of the applicant; Mr Michaels, his support dog, Jackson, and Mr Butcher were also present. The applicant sought to rely on an Application to Admit Late Documents and attached documents dated 7 February 2023. The respondents objected to the admission of some of the documents.
For reasons that were provided at the hearing, and recorded, the documents were admitted. The respondents were granted an adjournment in order to obtain evidence in response to the late evidence.
The applicant also sought and was granted leave to issue a Direction for Production to NSW Civil and Administrative Tribunal (NCAT) and to extend the time for compliance with a Direction for Production served on AAI Ltd t/as GIO Workers Compensation.
The matter was again listed for conciliation/arbitration hearing on 27 April 2023. The appearances were as before. Ms Leonard, Mr Michaels, and his support person
Mr Derkenne, and Jackson, also attended.
The applicant sought to rely on a statement by Ms Leonard, dated 27 April 2023, which was provided on the date of the hearing. The second respondent wished to obtain further evidence in response.
The matter was once again adjourned, and orders were made for the filing of further evidence and statements of issues and outline of arguments.
The matter was listed for further hearing on 25 July 2023, by the Teams platform. Mr Saul of counsel appeared for the applicant, instructed by Mr Macken. The other appearances were as before. Ms Leonard, Mr Butcher, and Mr Michaels, with Jackson, also attended.
The applicant objected to either the first or second respondents relying on the reports of two independent medical examiners, submitting that it was disallowed by operation of cl 44 of Workers Compensation Regulation 2016 (the Regulation).
The applicant submitted that the reports on which the respondents did not seek to rely could remain in evidence for the purpose of the history only.
The respondents submitted that cl 44 of the Regulation did not apply, because the proceedings were not “on a claim”, referring to the definition of “claim” in cl 43. It was therefore entitled to rely on the reports of both Drs Graham George and Christopher Canaris.
The second respondent submitted that the reports of Drs Thomas Clark and Frank Chow were obtained for different purposes, with Dr Chow providing an assessment of whole person impairment (WPI), in support of the worker’s claim for that benefit.
For reasons that were provided at the hearing, and recorded, I determined that cl 44 of the Regulation did apply to these proceedings, and the first respondent was required to elect between reliance on the reports of Drs George and Dr Canaris.
I accepted the submissions of the second respondent and determined that he was entitled to rely on both Dr Clark’s and Dr Chow’s reports.
The first respondent submitted that, if it had to elect between reliance on the reports of
Drs George and Canaris, it would elect to rely on that of Dr Canaris.
The applicant then submitted that it was improper for iCare to choose Dr Canaris’ evidence over that of Dr George, because it had issued a s 78 notice on reliance on Dr George’s evidence.
The applicant did not withdraw its objection to the first respondent relying on the evidence of both Dr George and Dr Canaris, and the first respondent therefore relied on the latter’s report.
The applicant then advised that it relied on both Dr George’s reports for matters of history, and on his supplementary report.
Mr Saul had been unaware that the matter had been listed for the entire day and had another commitment in the afternoon.
The applicant’s submissions were therefore made by Mr Saul, and by Mr Macken in reply.
After hearing submissions, I reserved my decision.
On 15 August 2023, I issued a direction for further submissions on the issue of the second respondent’s capacity for work during the period from 17 January 2020 to 19 March 2021, and wages schedules for that period.
The parties were requested to agree on a timetable for the provision of further submissions, and to advise the Commission of same on or before 22 August 2023. Those submissions have now been received.
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)    Application and attached documents;
(b)    Reply by first respondent and attached documents;
(c)    Reply by second respondent and attached documents;
(d)    Applicant’s Application to Admit Late Documents dated 7 February 2023 and attached documents;
(e)    Applicant’s Application to Admit Late Documents dated 19 April 2023 and attached documents;
(f)    Second respondent’s Application to Admit Late Documents dated 19 April 2023 and attached documents;
(g)    Applicant’s Application to Admit Late Documents dated 1 May 2023 and attached documents;
(h)    Second respondent’s Application to Admit Late Documents dated 18 May 2023 and attached documents;
(i)    First respondent’s Application to Admit Late Documents dated 22 June 2023 and attached documents;
(j)    Second respondent’s Application to Admit Late Documents dated 22 June 2023 and attached documents (outline of issues), and
(k)    Applicant’s Application to Admit Late Documents dated 10 July 2023 and attached documents.

Oral evidence

There was no application to call oral evidence or cross-examine any witness.

FINDINGS AND REASONS

There are numerous statements from both Ms Leonard and Mr Michaels. Much of the evidence is repetitive, and each has responded several times to the evidence of the other. I do not intend to refer to all their evidence in these reasons.

Evidence of applicant

The applicant relies on documents and statements from Madeleine Anthea Leonard (Ms Leonard), a director of Sweet Art.

Anthea Leonard’s statement dated 25 November 2019

Ms Leonard’s first statement was taken by Mr Robert (Bob) Hall, of B H Investigations Pty Ltd, an investigator retained by iCare.
The second respondent was employed as a sales and customer attendant, but his “first priority mainly” was to commence collection of $100,000 in outstanding debts. The previous bookkeeper had allowed the debts to “balloon out”, and she was not made aware of it until she had left.
Mr Michaels provided her with a resumé, superannuation form, and tax file form, copies of which she provided.
The second respondent was employed on a casual basis to work 9am to 5pm Monday to Friday. He found that was not possible, and worked only 11 hours the first week, 46 hours the second week, and 23 hours the third week.
She had employed the worker at $30 gross per hour. The work times he prepared were different to hers, and he had increased his wages to sometimes $45 to $70 gross per hour in one week. She did not agree to an increase and paid him at the normal rate.
The worker did work more than 40 hours per week but was only paid at the agreed hourly rate of $30 gross.
The worker was not paid weekly by electronic transfer to his nominated account, at his request. He was originally presented with a contract of employment showing he was able to earn $60,000 working to the contract. He declined to sign the contract and said he had a payment from Centrelink.
The worker gave her some documents a month after he started, but she did not really look at them until October 2019, after he had left. Had he continued, he wanted to be paid $30 gross per hour, plus superannuation, and paid in cash out of his debt collections.
The worker told her he was to be paid in that manner so there was no record of the payments and of being employed, because he was getting payments through Centrelink. She declined to do this at first, but he intimidated her so badly that she eventually agreed to do it his way. She did not delete him from her accounts record as he had requested. She finally reported it to an employment lawyer and Employsure.
While the worker was on holidays, he was getting friendly with her accountant, Michelle Forrester. After he left, she believed he went to the country with Ms Forrester to help her set up a bottle shop. He was also engaged to clear out, reorganise, and redesign her home.
Because of his intimidation, as indicated in SMS messages, she made payments in cash, but recorded every payment. She could provide a spreadsheet showing the payments, by either diary entry, a docket signed by the worker, EFT (electronics fund transfer) or cardless cash.
After three weeks, the worker found the job tiring and reduced his hours. He told her he needed some time off and was off work from the end of the third week of his employment for three weeks.
The worker then came back for a short period. Her records indicated she had overpaid him by $2,000. When she called to tell him she had made a mistake, he said she had not overpaid him, “You still owe me $3,000 according to my spreadsheet you bitch and unless you pay me I am going to report you to ASIC for bring [sic] insolvent”. There were numerous threats, as recorded in the SMS messages she provided.
The worker was provided with a contract of employment, but he never signed it. He wanted to be her business development manager. She said if he worked for three months and was able to collect the outstanding debts, she would consider it. He never worked for the three months and never collected close to $100,000 or even $1,000.
The worker had taken over filling out a tender document for her. He informed her he wanted to “own” part of the proceeds if they were successful. She declined to give away part of her business and told him to stop filling out the document.
As a casual employee, the worker was not entitled to annual leave, sick leave, or paid public holidays, but she was going to pay his superannuation.
The worker completed a new employee application form. She met him at a garage sale he was conducting in late June 2019. She formed the opinion from his conduct, and telling his life story to a total stranger, that he had a problem.
The worker said someone living in his building had downloaded all his banking details from his computer, and his identity had been stolen. The camera had recorded him having sex with a male partner, and that was downloaded to the internet. He called it cyber bullying.

When the worker came to her shop a couple of weeks later, and asked her about doing some work, she told him about her debts. He started on 11 July 2019 as an orientation day. She gave him the position because she felt sorry for him and thought she could help him.
The worker worked his last hour on 15 September 2019, when he suggested he would come in and help her clean up. He billed her for one hour. She did not realise he was going to bill her. His last day of work prior to that was 13 September 2019, when he did three hours.
She first became aware of the injury being claimed at around the end of October 2019. The worker had not returned to work and never notified her he was not returning.
The worker never reported an injury to her, and at no time did she bully or harass him. It was the opposite, as she was threatened with physical harm in SMS messages.
On 26 October 2019, she was alone in her shop. The worker started to bang on the front window, so hard she thought it would be smashed.
She went to the front of the shop and saw the worker outside. He was yelling, “You don’t pay your staff, you stole from me, you’re a cunt, I will get everything back, I will kill you.”
Members of the public came to her assistance, and she went to Paddington Police Station and reported the incident.
She never received a WorkCover certificate of capacity (COC). The worker never resigned or provided any indication he was not returning to work. She did not want him back.
Aside from the incident of cyber bullying, she had not been made aware the worker had suffered from stress, anxiety, or depression in the past.
With regard to insurance, she had a policy through Allianz Workers Compensation (Allianz) for years. She was not aware that her bookkeeper had not renewed the policy until she was made aware of this claim being lodged. She immediately arranged for a new policy.
There are additions to, and some repetition of, this statement in a further statement of the same date, headed “Without Prejudice”.
A contract was provided to the worker, but he made changes that alarmed her. In the ensuing difficulties with his performance and behaviour, it was not re-visited.
The worker initially suggested that he be paid through a Centrelink Wage Subsidy Scheme. The paperwork was sent to him, and he did not forward it to her until 12 August 2019 when he was not working for three weeks. She did not view it until 23 October 2019.
The worker attended on 11 July 2019 to orientate himself to the business. She did not recall him doing any work, but he later claimed 11 hours work that week, for which she paid him.
For the period from 21 July 2019 to 2 August 2019, the worker essentially worked full time. During his first two weeks, it was clear he had trouble concentrating. He was often distracted and would sometimes disappear for several hours. He was completely unreliable and unpredictable.
On occasion when she sent the worker to the post office or hardware store, he stopped for lunch or other breaks. She could often smell alcohol on his breath when he returned. When she questioned him about drinking, he said his doctor told him he could drink to reduce stress.
During this time, it was clear to her that the worker was not capable of full-time work. In the week of 25 August 2019, he worked about 20 hours and then said he needed time off. He did not provide a medical certificate at any stage.
In about mid-August, the worker asked her to remove him from her accounting system, Zero [sic: Xero]. He said this was possible because she had not yet reported her BAS (business activity statement) to the ATO (Australian Taxation Office). He told her he had checked.
The worker asked her to call the cash payments her “personal drawings”. He needed her to do that so his income could not be traced. She refused. He then threatened that if she did not, he would “destroy me and my business”. He repeated this frequently. She was afraid of him. He continued his threats with daily texts.
Throughout his employment, the worker’s actions were quite inappropriate. He made unilateral decisions without consulting her. She found him completely unpredictable, and his carelessness with confidential paperwork placed her business at risk. If she corrected him, he became very angry. She became increasingly alarmed by his threats and intimidation.
On 6 September [2019], the worker worked for her at an event at NSW Art Gallery. She allowed him to stay for the opening. He drank excessively and made inappropriate and grandiose statements to the guests.
As he left, the worker told her he was going out to party. She asked him to take care, as he had already had a lot to drink. He became extremely angry, demanding that she retract her statement. She no longer felt safe in his presence.
She was therefore relieved in the following week when the worker started to take other work. It was clear to her he was not yet fit to work. After this event, he worked only four more days for her.
There ensued several weeks of harassment and intimidation via text over wages the worker claimed he was still owed.
She perused the worker’s spreadsheet and discovered he had changed his hourly rate from $30 per hour to $70 per hour in one week. He had also charged some hours at $45 per hour, instead of his agreed rate of $30 per hour. After checking her own spreadsheet, she concluded that she had overpaid him.
The worker had accused her of bullying on 5 August 2019. He was not at work on that day. It was the first day of his break. She did not recollect speaking to him by phone on that day. She corrected him at times but had no recollection of bullying him.
On 19 November 2019, she and her new bookkeeper, Kaye Sydenham, found that
Mr Michaels had been in Xero in October 2019, when he no longer worked for her. Some of his timesheets had been deleted, and other alterations had been made. Ms Sydenham had blocked his access.
She had set out time sheets approved for various dates, most of which had been deleted from Xero. “It appears that Mr Michaels, even though some timesheets have been approved – no payroll ever been processed in Xero” [sic]. (Emphasis in original).
When she refused to pay the worker in cash, he threatened to advise Centrelink, which would fine her for not issuing proper payslips. He kept threatening to “get” her.
Michelle Forrester, who worked for on an ad hoc basis, advised her to pay the worker out of director’s loans, and that she had discussed a “work around” with him. She did not agree and instructed Michelle to pay him through the proper channels. Michelle refused.
The worker made handwritten notes on her first handwritten pay slip, which she had given him so he was across her workings. She hoped this would pass as his first, or a version of, a pay slip, until the bookkeeper did it properly through Xero. This had not happened.
She thought the reason the worker wanted to be paid this way is that “due to some diligent detective work”, she found he was on Centrelink benefits and with Single Touch Payroll they would find out.
The worker started to consistently bully her, sending her daily texts, and insinuating she was living off his money.
The worker sent only two invoices in the entire time he worked. He did not follow up accounts or orders. Her bookkeeper was awaiting the OK to process the payroll after discussion with iCare and the investigation was over.
She was so scared of the worker that she started to pay him as he requested. She believed he had a mental health issue.

Anthea Leonard’s statement dated 19 December 2019

This statement was made in response to the worker’s evidence, and much of it is repetitive.
She had about $180,000 outstanding, and the worker never sent any invoices to any of the clients, which was what he was employed to do. Had he done so, she would have had the money to pay him. He was aware of that and knew when he started that the only way she could afford to have him was if he collected the outstanding money.
She had collected all the hard copies of the job sheets, and all the worker had to do was sit with her, go through and make sure the invoice he was sending was the same as the job sheet.
It is incorrect that she was looking for a part-owner of the business if they could come to a deal. Had the worker worked the three months and it worked well, she was looking for someone to work with her, but he did not.
The worker was employed on a casual basis to work 9am to 5pm, Monday to Friday. She had employed him at $30 gross per hour, plus superannuation, and he did not want tax taken out. She had never agreed to an increase in his hourly rate and paid him at the normal rate. She never offered him a commission on sales over $3,500 a week.
She had a website. The worker wanted to work on it, but she declined because she did not have the money.
It was never discussed that the worker was asked to work on half his base salary of $60,000, agreed commissions would be paid, with the incentive of ownership, and instead of a financial stake, his would be his working capital.
The worker was not paid weekly by electronic transfer, at his request. He demanded to be paid his hourly rate plus his “super” contribution and that no tax be deducted. She originally presented him with a contract of employment showing he was able to earn $60,000 working to the contract. He declined to sign it and said he could arrange a payment from Centrelink. Had he fulfilled the offer in collecting the outstanding debts there would have been the money to pay him regularly. When he started to demand payment and threaten her, she had to pay him what she could, when she could.
The worker had asserted she was overseas at a friend’s wedding and she had accused him of bullying and harassing her and making her sick while she was “dancing at some wedding”.
She paid the worker when she could and had provided proof of the payments. She went to the wedding of a friend’s child in Portugal. The trip was a gift from the child’s parent.
The actual cost of the event at the Art Gallery was $8,667 and the worker’s time was costed at $55 per hour on the invoice. Her costing for his time was $30 plus superannuation, and he charged himself out at $35 gross per hour.
She never promised to pay the worker $10,000 because she did not owe him that much. If she had owed it, she could not have paid it at that time because the invoice had not been paid.
Because of the worker’s intimidation, she made payments to him in cash, but recorded every payment, and could provide a spreadsheet showing the payments, by diary entry, a docket he signed, EFT or cardless cash.
She had employed Chris Chavez as her cake production manager. When he resigned, it came to light that his superannuation had not been correctly paid, and he reported her to the ATO and Fair Work. She had some discussion with the ATO and sorted it out. She wrote to Fair Work, explaining her side and that it had been sorted out, and there was no further action.
The worker never reported an injury to her and at no time did she bully or harass him. It was the opposite. It was all over money. The worker was “always looking to see how he could twist something and make an under the counter dollar”.
She believed she had been fair and reasonable with the worker and had paid him what she could when she could. Had he complied with her instructions and concentrated on collecting the outstanding debts, there would have been sufficient money to pay his wages, but he “went off on tangents” and when she tried to speak to him about it, he got angry, and she felt intimidated.

Text messages

There are copies of numerous text messages between Ms Leonard and the worker. I do not intend to refer to each one. None is dated.
There is reference to the worker borrowing Ms Leonard’s car, to which she agreed.
The worker asked several times about payment to him. He asked that Ms Leonard “please go to the bank first thing this morning as I am coming to collect what is owed”. She responded that she had worked on invoices until 3am and was “moving as fast as I can”. She would see him later but would send him a time as she was fully booked during the day.
Ms Leonard was “dealing with Mum and hospital right now”, had a migraine after work, thought she had written a wrong date, and needed to check the bank against the list. The worker responded that if the dates were wrong, they would need to go through the bank statements together.
Ms Leonard also advised that she had to go to the eye doctor as she was “losing my sight”. She also had a meeting with Westpac, “Peter our SA broker and lawyer”, and “then every working minute is in invoices”. She could see the worker in the early evening on the way to see her sister, who was very ill and could not drive or fend for herself most days.
Ms Leonard asked the worker to send her the petty cash dockets and explanation of what was purchased, as he had said, he was “getting an office together”. She would return all the office things in the white tub, as she did not need or request them. They would be helpful for his new business office set up.
The worker said that if Ms Leonard disagreed with his spreadsheet, he would insist on viewing all bank statements. She “told me you are good for it and help you. You have ignored my requests to settle this in full”.
The worker was sorry Ms Leonard was going through this now, but it was NOT his concern as the funds were owed from months ago. She chose to lie about not having the money but was able to pay both cake decorating people who were owed thousands, “YES my money again.” (Capitalisation in original).
The worker continued that Ms Leonard needed to go to the bank today, as he wanted full payment, “no more excesses” [sic: excuses]. It had “become past a joke telling me how sick you are and all the other things”. It was time for her to step up and pay her debt. He was “over playing games…is that clear.”
The worker said Ms Leonard had failed to show up the last two days after work as promised. He “WILL be coming to work today during business hours to collect my money”. (Capitalisation in original). He suggested she have the cash by 12.
Ms Leonard responded that it was not possible as she had meetings. “Please. Stop bullying me. It’s not fair. I have a life and eyesight that I need. Stop and think beyond yourself.” The worker said “No, make it happen”.
Ms Leonard was sorry she did not have it. She would be “very happy if I could clear you out – and possibly less stressed…” Her eye degeneration was “stress related”. She had a meeting at 11 and no actual money until later, although she had an idea a client could pay direct to the worker.
Ms Leonard asked the worker to “find some patience or nothing can happen as I am now vomiting from your bullying.” The worker said, “Money today or I’m on the phone to all govt department”.
The worker said that $25 was all it cost to lodge a small claim “with my doctors and psychologist reports with you forcing me to work without ever getting a pay slip after numerous requests.” He could not pay his rent or buy food. If she did not want to pay the money owed, he would “fight for every cent”. That would “take it up to almost $7k”.
Ms Leonard was to make a decision. She had an hour to respond. It would also be “a great media story”.
Ms Leonard said that at no time did she say she would not honour what was due. It was “just goal posts keep changing”. She wanted a meeting and agreement and finalisation with a mediator, so they were both happy. Why did the worker “need to kill me?” There was no thought of court. They were both not well. Life was too short for battles and hate.
The worker responded that he wanted “a thousand tonight then we can sort out the rest.” “Kill” was an exaggeration. He just wanted his money. He asked if Ms Leonard was dropping off $1,000 that night, as she was supposed to drop off $2,000 the last two days but had not called or shown up.
Ms Leonard had to “share that you told me to bring that much”, but she had said she did not have that much available, as no one paid. He did not believe her “but is total truth”.
The worker asked for cardless cash, $500, and then another 24 hours again. Ms Leonard responded that the code was only available for three hours.
While the message begins “C”, it appears that it was Ms Leonard who said the worker had called her a “piece of shit”, and he wanted to kill her, her reputation, and Sweet Art’s reputation. She was scared and afraid and had gone to try to heal a bit and hopefully sleep until tomorrow afternoon. She was taking medication.
There is a message “Cash 400” and a code that expired just before midnight. The worker said Ms Leonard was lying. He never threatened to kill anyone. He would collect what cash she had in the morning.
There are further messages about cardless cash and amounts said to be owed to the worker. The worker asked Ms Leonard to arrange cardless cash and advise where she was at with getting a loan to reimburse what she had illegally kept. He was “getting tired of waiting around for you to get your act together and organise funds.”
The worker accused Ms Leonard of insolvent trading and theft. He wanted an outcome today. He had a letter from his doctors for both Centrelink and the tax office if she did not make arrangements.
The worker said Ms Leonard had made a decision to refuse to pay him for work completed. Therefore, he would lodge everything with Centrelink, the tax office, ASIC, social media, and small claims tomorrow.
Ms Leonard advised that the accounts, banks, and diaries were being cross-checked and would be sent to him by “Sian” (Gilbert). He would be paid the balance if there was one. She had “shared” with him that she was ill and away. The illness was not just a cold.
Ms Leonard was “not holding back on you, had the account checked and it seems that you have received more the…”
The worker answered that it was too late. He would get everything he was owed by the government stepping in. He had given Ms Leonard months to sort it out. He did not want “all this drama, just my money.”
Ms Leonard advised that Sian could not check what the worker had done. She had never said or acted like she would not pay. She had continued to pay everyone.
The worker said Ms Leonard was overseas spending his money. She owed $4,009.78. He would send the spreadsheet. She had shown her “true colours”. She went away owing him money and lied about being paid.
Ms Leonard responded that the trip was a gift from a girlfriend and her sister. She was on her way home to “fix this”.
There was some difficulty with a code for cardless cash of $500, which the worker eventually confirmed he had received.
The worker later said he “guess[ed]” Ms Leonard wanted him to put in a small claim lawsuit that cost $25, to have her investigated for unpaid wages. Before she went overseas, she had said she was getting a loan to pay him out. He had spoken to Centrelink and what she had done was illegal.
Ms Leonard advised that she was double checking the monies paid and a “rec” of the spreadsheets, as she had had a few versions from him, all different. They could “settle this once and for all”. The last version was the full amount, “instead of the discounts I was going to give you.”
The worker asked what time today Ms Leonard would have the balance she owed him – “3k”.
Ms Leonard responded that she was not well and would not be able to look at it until tomorrow. The worker was “tired of your excuses” and asked for at least $500 today. The withholding of his wages was risking his eviction for unpaid rent.
The worker said he had been trying to receive his wages for three months. Ms Leonard had not communicated, lied in texts, traded [while] insolvent, breached tax and super laws, and held his wages illegally. He had been “gracious” in trying to help her make the payments, but she lied, pretending she was sick and scared of him while she was overseas relaxing.
Ms Leonard knew of the worker’s mental health problems “and you have been informed…that withholding my wages has had an enormous pressure on my health and being able to pay my rent and bills.” She “turn[ed] up with $200 and 4 mandarins and think it’s OK…to use my money to support your lifestyle.”

The worker said Ms Leonard had used excuses, saying her mother had a stroke and pretending he had threatened her life to get an AVO (apprehended violence order). She had an hour to work out an agreed amount for his payment in full, “or I go to the press with this story”. He had legal advice and “all the medical reports ready”.
Ms Leonard said the worker was making many accusations that were not factual. She had already said she was addressing it tomorrow and would get back to him then.
The worker had all Ms Leonard’s messages. He wanted $500 today and asked if she was doing a cashless transfer now. He asked whether it was court she wanted. She responded that she would be back to him today.
The worker asked what time he should expect her “after all these months of waiting for my wages that you withheld”.
The worker provided the investigator with text messages that he said referred to loans to him while Sweet Art was “illegally holding my wages”.

Anthea Leonard’s letter to iCare dated 28 February 2021

Ms Leonard had been provided with a COC dated 28 October 2019; statements taken by
Mr Hall; and a schedule of payments.
She had been informed by Mr Hall that in his view there was no question she had the backup information and proof in the worker’s handwriting that he was fraudulent, and this would clear his claim against her.
She had phone contact from iCare confirming she had “won the case” and it was over. ICare had “cleared Sweet Art’s and my name”. She assumed there would not be any future requested fees. The first indication that iCare had changed its mind was when she received a demand for payment many months later.
The statutory workers compensation insurance had been in place for almost 40 years. She did not recall receiving any documentation from iCare offering a policy in place of her previous insurer.
“Apparently”, the business did not have a current insurance policy as at 1 July 2019. She had not been able to verify the details of the change from Allianz to iCare because neither would respond to her requests for that information.
The claim was entirely Fraudulent and should never have been considered. (Emphasis in original).
Since the interviews by Mr Hall, there had been no attempt to verify any of the information provided by Mr Michaels. It appeared that the first indication of an injury was in the COC dated 28 October 2019.
ICare’s letters referred to a date of injury of 28 October 2019. That was the date of the certificate. The worker stated that the injury occurred on 5 August 2019. (Emphasis in original).
On 5 August 2019, Mr Michaels informed her he could not work for her for two weeks because he needed to set up his new apartment. He took paint, tools, and other accessories from her storeroom without any request. He was not unwell or suffering from any medical issues. He worked tirelessly, “home, back yard and planting totally transformed.”
The worker was never “employed” by the business and on his own admission never worked “full time”, and only provided services sporadically. He never intended to work a full week. His diary made that very clear.
To suggest that Mr Michaels, whose occupation (on the COC) he described as a “trainer”, “could even remotely be employed ‘full time’ and with the grand title of ‘Business Development Manager’ is ludicrous.”
It was false to state that the worker was not provided with pay slips and his wages were withheld. He was offered part-time work and was to be remunerated at $30 per hour. He would be paid from the monies he collected. She had little extra income to pay him from the business as he well knew.
Mr Michaels demanded that he not be placed on the payroll, that no PAYG tax be deducted, and the superannuation contribution be paid directly to him, also in cash. (Emphasis in original). To suggest that he was not paid, as it appeared he had done, was fraudulent, as it was at his demand that it was not recorded. He was very clear about this.
There were no “wages”. The arrangement was an hourly rate and paid directly in cash from an ATM (automatic teller machine) or by EFTPOS (electronic funds transfer at point of sale), always recorded by her.
The worker insisted that he not be recorded in the company accounts and his payments were made in cash. He informed her he was entitled to earn monies over his pension, and that was why he needed to be paid in cash.
“Of course,” there appeared to be no reference to the “substantial business” being conducted by Mr Michaels, as recorded on his business website, both before and after any contact with Sweet Art.
There was “much more detail and information” about the worker’s behaviour both during his contact with her business and after, with respect to his continued earnings.
She appreciated that fraud was a matter for the regulator but preferred that iCare had the opportunity to review the information. She had not been given any detail other than the allegations made by Mr Hall. She was unaware as to whether any of that information was true.
ICare responded to this letter on 19 March 2021, and I discuss that evidence below.

Anthea Leonard’s statement dated 7 February 2023

The statement is undated, but according to the Application to Admit Late Documents to which it is attached, its date is 7 February 2023.
She had been contacted by Mr Craig Burton, a property developer, who owned a number of properties on Moore Park Road, where the worker lived. He told her he had employed the worker, who had told him he was intent on destroying her.
Mr Burton indicated he had employed the worker to do repairs, maintenance, and some decorating, and show the properties for lease. He had an arrangement with the worker whereby he gave him one week rent-free for every tenant he secured. At the time he contacted her, the worker had tenanted about 40 apartments, equaling approximately $16,000 + in free rent.
Mr Burton also paid the worker for the work he did. Mr Burton instigated proceedings against the worker. The worker produced documents setting out the years he had worked, the work he performed, and the arrangements for payment. Mr Burton won his case.
She was waiting for Mr Burton to provide documentary proof that the worker worked for him during the time iCare was paying him.
Over the period of his casual employment, the worker was paid correctly at $30 per hour at an average of $902 per week. When the overpayment was deducted, his average weekly earnings were approximately $640 per week. She had no idea how the first respondent calculated his PIAWE as much higher.

Statement of Anthea Leonard dated 27 April 2023

The statement was made in response to the worker’s statement dated 19 April 2023.
At no time was a $10,000 bonus offered or suggested. At no time was her business insolvent.
The draft pro forma contract was put forward as an idea of what they might work towards in the future if the arrangement worked out and they enjoyed working together. It had nothing to do with the work they agreed the worker would do when he started. This was to manage overdue invoices and work on new business, none of which he did.
The worker was asked to input the hours he worked into Xero. Anyone working at Sweet Art was required to input hours. It did not give access to company bank accounts, financial statements, super and tax.
The worker input his hours into Xero for some weeks, before asking her to remove his hours of work, TFN (tax file number) and super forms, and be paid in cash. She asked him to provide a statement by supplier form instead, which he refused to do. He was paid in cash at his request.
The worker told her Dr McKay had instructed him to take two weeks off work as he was only capable of working five hours a day, three days a week. He contacted her towards the end of the two weeks to advise he wanted to take another week off to complete work around his apartment and garden.
This was a mistake in the previous statement – the above details are correct from our work diary. (Emphasis in original).
Aside from how they met, the worker’s description of his role at Sweet Art was delusional. They discussed possibilities in the future, but he was unable to do the work they agreed he was to undertake.
All calculations at Sweet Art were done through excel and all payments were ultimately paid to the worker, consistent with their arrangement.
The worker had put up a notice that he called Commission Structure. The first two headings were “Old Invoices – New Business”. This acknowledged that a requirement of his work was to recover old invoices and find new business.
Sweet Art retained records of all payments.
The worker told her that lunch with Ms Forrester was a discussion about her wanting to take over Sweet Art.
The worker was never dismissed/terminated. As a sub-contractor he chose when he worked and did not. He was employed as a casual employee.
She rejected any suggestion that she bullied and/or harassed the worker. His statement was confused. He was “sharing” a story that hurt him a lot and started crying.
She and the worker had never had an argument. She did not make calls or refuse payment as claimed. She had overpaid him.
The worker’s evidence about the incident at the shop was a total misrepresentation. He bashed on the glass of the shop with such force she believed it was going to crack. People came running when they heard him screaming. The police were called, and statements were given by the pub manager and a local café manager. She chose not to pursue an AVO and remained in contact with the police.
In September 2020, Mr Burton contacted her to warn her that the worker had a vendetta towards her and wanted to ruin her.
Mr Burton had been working with the worker for some time. They had regular meetings to cross over on work projects Mr Michaels was working on. The worker had made threats against her.
Mr Burton said the worker had four income streams outside Sweet Art. He was receiving a free week of rent for any tenant he brought to Mr Burton. He did not pay rent for a six-month period in 2020-2021 and Mr Burton had taken him to court seeking payment.
The worker did not disclose this work and gave only limited disclosure after she informed iCare he was working.
She rejected the worker’s assertion that she had bullied him. She had kept staff for a very long time. Many had stayed for up to 40 years and some had multiple long service leaves.
She did not recall when she visited the worker, but again denied underpaying him.
After the window bashing, she started to be concerned for her safety. She contacted Sian for advice. She began parking in very public places and if she worked at night, she moved her car to well-lit areas.
She had recently closed the business to retire after having rotator cuff surgery and had applied for the pension. She had no other properties but her home in Bellevue Hill.
She had offered the worker the opportunity to complete specific tasks on a casual basis. He was unable to complete them. He repeatedly conducted tasks that were not required, consumed alcohol during work hours, and left work for personal errands.
The worker requested that she keep minimal records of his employment, so his Centrelink payments were not affected. He requested that she pay an agreed hourly rate via cash. She did this because she wanted to support him. She realised this had allowed him to make false and misleading statements about her.

Anthea Leonard’s statement dated 30 June 2023

The statement was made in response to the worker’s evidence.
There was never any suggestion of a $10,000 bonus. The worker said he knew about a $10,000 subsidy that could be set up to cover his wages in part. He indicated he would set it up, but it never eventuated.
The initial intention was for the worker to work full time but immediately after he commenced it became apparent he would not be able to do that. He asked for an employment contract. As she did not use them, she obtained one from a friend, filled it out based on the original expectations, and sent it to him.
The worker’s response was to send it back with substantial amendments, none of which was agreed, nor would be agreed. This quickly became irrelevant as it was clear he would never be working full time.
The worker never suggested that his normal rate was $120,000 per annum. At the time she offered him work he was earning nothing like that.

226.She indicated that the worker was to be paid out of money he brought into the company from outstanding invoices or new business, none of which occurred. He was paid cash at his request.

She provided the worker with her card on two occasions. The suggestion that he leave a balance of $100 is not correct. She does not disagree that in the beginning there was a degree of trust.
The excel spreadsheet the worker created showed that between 11 July 2019 and
15 September 2019 (nine weeks) he worked 246.5 hours, averaging 27 hours per week. He was paid an agreed rate of $30 per hour.
The worker did not perform any of the tasks he said he would. The tasks he performed were largely menial. The first time she was aware of a suggestion he should be paid $70 per hour was when she received his spreadsheet sent two weeks after he left Sweet Art. This was never discussed or agreed.
She did not go forward with the idea that Mr Stow would set up an online ordering system.
Part of the worker’s initial role was intended to include the development of new business, but the critical consideration was the retrieval of money on unpaid invoices. Any further roles were only being considered when he had done this.
The worker was overpaid. She referred to the document provided to iCare’s investigator. It showed all payments due to him were paid (and eventually overpaid). It was not as a result of any underpayment that he could not pay his rent. She had difficulty believing this, as he received income from many garage sales.
She received a call from the worker after he had lunch with Ms Forrester and her colleague. He said they were talking about how they could work to take over her business, and he was disturbed by this.
She had discussed with the worker him being a subcontractor, but he refused to provide her with weekly invoices or fill in the statement by supplier.
She did not engage in any activity that would constitute bullying or harassment. The only concerns the worker raised during the course of a meeting were related to a number of personal matters. He made no complaints at that time as to the manner in which he was being treated. Everything she had done had been directed at attempting to help him.
She had attached text messages exchanged with the worker in September and
October 2019, after he had left Sweet Art. They indicated the cordial nature of their relationship and were inconsistent with his later allegations.
There was no withholding of wages. The agreement was very clear. The worker needed to bring in money in order to be paid.
The Art Gallery job had a charge out rate of $50 per hour, and the amount it would pay was capped at $10,000, including GST. The suggestion that she would pay the worker $70 per hour was ridiculous, and his involvement was minimal. He only worked on the job for one week, and it was incorrect that he was required to complete the installation.
Her business was hit badly by the GFC (global financial crisis) and COVID-19. This presented her with some cashflow problems. This was one reason why she engaged the worker to retrieve unpaid invoices.
In response to Ms Forrester’s statement dated 18 May 2023, she agreed Ms Forrester was not her bookkeeper. She was helping with these activities as her bookkeeper had left.
None of her employees had employment contracts. In about 2018, Christopher Chavez was on a one-year contract. No other employees had a contract.
The worker was not her executive assistant, although he changed his title on his emails without her approval.
She did not tell Ms Forrester that the worker would be able to assist her with bookkeeping as it became apparent he was unable to assist her with almost anything.
She never put off speaking to the worker. They worked on the same floor and spoke all the time. He was free to speak to her at any time. He was distressed about estrangement from his family. He did not speak about anything associated with his employment or express the view that he was undervalued.
She had suggested to the worker that if he succeeded in what they were trying to do, this would improve his life generally and be helpful. She tried to convey that she wanted to advance his interests, but she did not offer him ownership or percentages of her business.
Ms Forrester did not take notes during the meeting. It was a casual get together after work, during which the worker became upset about family matters. There was no reason for
Ms Forrester to take notes and she did not see her take notes. (It is apparent from
Ms Forrester’s evidence that she did take notes).
In about October [2019] the worker showed her photos of work he had done for Ms Forrester involving a makeover of a house. He told her he had been paid $500 a week in cash to assist with this work.
She had been shown Ms Forrester’s statement dated 14 December 2019. She had never had a breakdown, or had issues with the ATO, her staff, or the bank. She had not had issues with high staff turnover. She was in no need of being “rescued” by the worker as her 46 years of experience and success spoke for itself.
In 2019, she offered the worker the opportunity to demonstrate that he had the requisite skills to retrieve $100,000 owing to Sweet Art, as he wanted to retrain to be able to work again. It was only after he started work that she learned he was sacked from his last job for drinking, being late, and taking a break and extending it.

Documents produced by NCAT

The second respondent brought proceedings against Mr Burton in NCAT, which produced documents pursuant to a direction for production issued by the Commission.
The second respondent claimed that he was offered the opportunity to “style” Mr Burton’s vacant rental properties and show them to potential tenants. He was offered a week’s free rent or the monetary equivalent if Mr Burton signed the prospective tenant.
Alternatively, Mr Burton offered to hold the monetary equivalent in a “property account” to help the worker buy a studio apartment. From approximately 2019 to 2021, he also did “odd jobs” for Mr Burton at the rate of $50. This would go towards his rent or into the property account.
The documents include details of gifted rent for various periods from 17 January 2020 to
19 March 2021 at the rate of $340 per week. The second respondent also claimed that an amount of $4,000 was deposited into the property account.

Evidence of the worker, Craig Michaels

Statement dated 2 December 2019

Mr Michaels’ first statement was provided to Mr Hall.
He was employed by Sweet Art on 11 July 2019 as a business development manager. He had not resigned or been terminated. He had not been working at the premises since approximately the end of October or the start of November 2019. That was when he was trying to sell two properties in Oxford Street Paddington for Ms Leonard.
He had not been back to work because he was not being paid and was in fear of Ms Leonard making up excuses as to why that was the case.
When he commenced, the business was taking about $2,000 and had $45,000 in outstanding debts for the previous two years. Ms Leonard told him she needed to increase that to an extra $1,500 a week to cover expenses and his wages.
He met Ms Leonard at a garage sale he was conducting on the weekend of 6/7 July 2019. He had met her sister on 29 June 2019, and they got along well. She was in the mental health field, and they discussed his mental health issues of depression and anxiety, and isolation, which had led to an attempted suicide a few weeks before.
The following weekend the sisters came and spent about $400. Ms Leonard asked how much he made from the garage sale, as it was “so well set up and I was a true salesman.” She said she needed someone at Sweet Art, she was no good at sales, and could he come to work.

He told Ms Leonard he was currently working for 20 hours a week at Chambers Cellars, while he recovered from an attempted suicide. She was sympathetic and suggested he see her on his day off the next Tuesday.
On 9 July 2019 he went to Sweet Art. Ms Leonard said she was looking for someone who could become part owner if they could come to a deal. She was not good at sales or paperwork and needed a hand.
He explained that in his previous employment he had transformed businesses and set up his own companies, about his documentary, and the charity he had set up. He suggested she look at his LinkedIn profile and she said she and her bookkeeper would do that.
Ms Leonard asked if he would do a trial on 11 July 2019. He assisted and helped with the design of a cake, and business and administration jobs, including sales. He was cleaning up the courtyard, re-merchandising the shop, and other duties.
The trial was supposed to be three hours. He worked 11 hours without a break. He took public transport to Bondi to purchase lollypops on his own credit card.
At the end of the shift, they talked about his previous salary, which was between $110,000 and $140,000 per annum. Ms Leonard offered him a package deal of turning the business around from $2,000 a week. She would pay commission on any increase when it achieved an additional $1,500 a week. To cover contribution to his wages he would receive 10% commission on sales over $3,500 per week. He disclosed that Centrelink offered a $10,000 wage incentive for people over 50 with mental health issues.
Part two of the package was to follow up and bring in outstanding old invoices of over $45,000, and he would receive 10% commission. The work was to be done after or during business hours, depending on the needs of the business.
Part three of the package was to sell old props from a previous bankrupt company. His idea was to turn the outdoor courtyard and car park into a regular market.
He was asked to develop the social media website and customer relations management system. These files were to be worked on during business hours and his own time. He had an excel spreadsheet and his own computer to use. Ms Leonard approved it and he had not used it for any other purpose.
He was to source any products to help them become owners with a technology-based system. He developed software with Bert’s Technology, a design and ordering system.
He was asked to work on half of his base salary, $60,000, and agreed commissions would be paid, with the incentive of ownership.

271.His wages were not paid regularly, and he was getting small amounts, not the full amount as agreed. He could provide a spreadsheet showing the hours worked and wages paid, and the award rate for the period from 11 July 2019 to 15 September 2019, when he was last paid. At that time he was owed over $10,000. He also had documents written by Ms Leonard showing payments made in cash.

He was receiving Centrelink payments during that period. Because he was being paid spasmodically and could not cover rent or food, he could not tell Centrelink how much he was receiving. He had agreed to repay any overpayments once the matter was settled.
Ms Leonard was strange. One minute she was hugging him and telling him she loved him, and the next was not paying him. In the same breath, she was telling him she could not pay him, and saying she had been out the night before. She would owe him $1,000 and pay $200. She gave him fruit and told him she could not give him money.
Before meeting Ms Leonard he had a pre-existing illness but was coping, working, and having treatment with Mr Derkenne. He was also seeing his GP, Dr McKay. He was still seeing both. He was also seeing “Liselle” from the Langton Institute. He had started drinking to excess to forget whether he was going to be able to keep a roof over his head.
He was going along fine while working at the bottle shop and travelling OK with his recovery. When he went to Sweet Art, the things that happened caused him to go downhill again. He felt angry, betrayed, hurt, and some days did not want to get out of bed.
The text messages from Ms Leonard would show the lies and failure to pay the money she owed him, and her accusing him of destroying her business and threatening to kill her, that she was in fear of her life and in hiding. He discovered within 48 hours that she was overseas at a friend’s wedding.
Two weeks before, they had been at the Art Gallery for an installation that took three 14-hour days with no breaks. Ms Leonard had offered him $100 per hour, and he said he was happy with $70. She received $20,000 for that event.
He had to do the invoice, as the Art Gallery wanted it and Ms Leonard did not know how to cost it. She told him to put his time at $45 per hour and said, “Trust me, I will look after you”. She did the final invoice, so he did not know what she put on it.
His health had gone downhill trying to find other work. His doctor was only allowing him to work 15 hours per week. It was difficult to find work for that period.
He had earned some money from his consulting business, which he started in October/November 2019, earning $25 per hour for 15 hours a week for five weeks. He declared that to Centrelink.
He denied threatening Ms Leonard physically. He told her he would destroy her business legally if she did not pay him what she owed him.
The employment contract was not signed because amendments had to be made in regard to intellectual property he was bringing to the business. The commission structure agreed to was not in the agreement. Ms Leonard was to have it amended and then they were to sign it. It was never amended and never signed.
He was to be paid weekly by electronic transfer or to his nominated account and provided with a pay advice slip. The only payments he received into his account were from Centrelink. The payments he got from Ms Leonard were four payments of $500 into his account. The rest was cardless cash, or she handed him cash at his home. The payments were set out on the spreadsheet.
He could provide a copy of a document written by Ms Leonard showing how much she owed, how much she had paid, and how much she still owed. This was prepared the week before she went overseas. She was quite friendly and promising to pay him.
He was to be entitled to four weeks annual leave after 12 months, 10 days sick leave, paid public holidays and superannuation. He was also entitled to commissions as they had agreed.
His anxiety and depression were initially caused when a neighbour took advantage of him. He overdosed with valium, was taken to Royal North Shore Hospital (RNSH), and admitted. That “got me right” and he started treatment.
He met Ms Leonard about five or six weeks later. He was progressing really well and decided to go with her because of her own experiences. What hurt him was not just her not paying him what he was owed, but that she kept telling him they were soul mates, he was part of her life, she was going to retire, and he would run the business and pay her a pension. He got lots of money in, they went out to dinner and lunches, and then she did not pay him.
On 26 October 2019, at about 9:30pm to 10:30pm, he had been to a bar where he had a panic attack. He was walking home past Sweet Art and was surprised to see Ms Leonard inside.
He knocked on the door and yelled, “I want my fucking money”. Ms Leonard walked from the back of the shop, stood there laughing, and said, “You’re not going to get anything.” He banged on the window, and did not remember exactly, but thought he called her a “bitch”. There was no one in the shop and the street was empty. He had no intention of harming her and walked away.
His depression was getting worse, and his health had been fine before he started with
Ms Leonard. He told his doctor he thought it was all her fault. His GP said he had not thought of that and he should have put in a claim the minute he stopped getting paid. He put the claim in with EML and they found she did not have a policy.
After Ms Leonard stopped paying him, he did some work for Michelle Forrester towards the end of October 2019 for a day here and there styling her house. Ms Leonard was aware of this because he showed her photographs of the house.
He had been issued with two COCs, which he sent to iCare. He did not send a copy to
Ms Leonard. He did tell her he was sending everything to the tax department, Centrelink and WorkCover to deal with it.

Statement dated 13 July 2020

In June 2019, he attempted suicide. After this, he began recovering from anxiety and depression. He was doing well and obtaining treatment from Dr McKay and Mr Derkenne. He re-established himself quite quickly by finding new employment at Sweet Art.
His employer was aware of his previous conditions and promised a safe and nurturing environment whilst he was getting back on his feet. This was not the case, and he was subjected to bullying, stress, withholding of wages, and financial hardship, which resulted in deterioration of his condition.
Throughout his employment, he was not provided with any pay slips and had his wages withheld. This caused a significantly stressful work environment. His relationship with his employer became significantly strained as a result of the inability to pay his wages, and he felt bullied by her. His condition deteriorated and he was unable to participate in any full-time employment.

Statement dated 16 August 2022.

He continued to suffer depression and anxiety.
In 2021, it was recommended that he obtain a support dog. This was initially declined by iCare, causing him significant anxiety. Eventually liability was accepted, and he had a support dog, Jackson.
Jackson had helped his agoraphobia. However, when he had to go out without Jackson, his anxiety significantly increased, and he had panic attacks. He was very fearful in crowds.
He continued to consult Dr McKay, psychiatrist Dr Adam Bayes, Mr Derkenne and an exercise physiologist. He took regular medication.
Prior to his injury, he worked in various roles. He was a hard worker and not lazy, so his inability to work had been difficult. He could not see himself working due to lack of confidence, lack of energy, and poor concentration.

Statement dated 4 October 2022

The statement was made in response to Ms Leonard’s evidence. Some evidence is directed to whether Mr Michaels was a “worker”, which is not in dispute.
There was significant medical evidence to support “injury”, “substantial contributing factor” and “main contributing factor”. His doctors had recommended the reasonable treatment he had undergone. Jackson was supported by his treatment providers as reasonable treatment.

Statement dated 19 April 2023

His wage was agreed at $30 per hour gross, plus super, because Ms Leonard was unable to apply for the $10,000 salary bonus as she was trading [while] insolvent and would have to supply all her paperwork to Centrelink.
A contract for $60,000 per annum was provided by Ms Leonard. It did not set out that he was employed on a casual basis or that his future employment was dependent on him being able to recover some of the debts.
He was not given access to Xero, as this would have given him access to the bank accounts and financial statements of the business. He was never provided with a password to log into Xero.
He filled out a superannuation and tax declaration form, which were annexed to his statement dated 4 October 2022.
He created the excel spreadsheet, as he was not paid regularly, rather “in small dribs and drabs”. He would have preferred to be paid into his bank account and receive a regular payment. He was never provided with a pay slip.
He did not negotiate three weeks off to renovate his new apartment. The new apartment was a studio, which did not require three weeks to renovate.
Ms Leonard offered him a sales job and advised that once he had shown his performance his role would be changed to business developer. This included finding purchasers for the properties she owned on Oxford Street. He did roles above what was required, including working in the kitchen and delivering orders.
Ms Leonard had not paid him completely for his past hours. There was still in excess of $4,000 owing, as per her handwritten statement, annexed to his statement dated
4 October 2022.
It was not agreed that his pay would be subject to the recovery of funds. Ms Leonard made two EFT payments into his account. The rest of the payments were either in cash or Pay ID. He was always paid less than the hours he worked.
He did not take a holiday. He had informed Ms Leonard that he would not return to work until he was paid. Ms Forrester did not offer him any jobs. She suggested he start looking due to the ongoing bullying and unpaid wages. He had to return to work as he had bills. Ms Leonard guaranteed she would pay his outstanding wages through the large Art Gallery job.
He had never resigned or been provided with documentation confirming he had been terminated.
The bullying and harassment to which he was subjected were discussed with Ms Forrester and Ms Leonard on a Friday night where he was crying, very distressed, and Ms Leonard promised to do better.
He and Ms Leonard got into arguments as she would not pay him. She would call in the morning saying she had some money, but at the end of the day refuse to pay him, or promise him $1,000, and give him her bank card and PIN (personal identification number) to get money out of the 7/11 ATM.
Mr Burton was his landlord. As he was not receiving wages, he was behind in his rent.
Mr Burton asked if he would be interested in tidying up his dilapidated apartments to help rent them for a higher amount and assist via Facebook to find suitable tenants.
Mr Burton suggested “taking [him] under his wing as a mentor as he had been treated so badly by Anthea and her business”. As he was on WorkCover, Mr Burton could help him out with one week’s free rent.
Any work he did for Mr Burton was declared to iCare. He attached a copy of a statutory declaration dated 29 April 2021.
When he left as a tenant, Mr Burton refused to pay out his previous three bonds. This was his NCAT hearing against Mr Burton. He had annexed a Notice of Order dated
8 October 2021. Mr Burton had to pay him $276.87 for overpaid rent.
He and Mr Burton had had issues in the past. It seemed Mr Burton had become involved in these proceedings to try and ruin his reputation.
He had not asserted that the bullying only occurred on 5 August 2019. As he had stated all along, it occurred during the course of his employment.
He had contacted Ms Leonard on 5 August 2019 as he had no money for food. She agreed to drop around after work. He was still owed wages. She offered to drop off $500. When she arrived, she came with $100 and a bag of oranges.
He had a contract that set out he was to be paid $60,000 per annum. The way in which iCare calculated his weekly payments was set out in its letter to Ms Leonard dated 8 September 2020.

Statement dated 17 May 2023

The statement was made in response to further evidence from Ms Leonard.
The contract for $60,000 per annum was provided by Ms Leonard. He had discussed with her that his normal rate was $120,000 per annum, but due to his mental state, they settled on $60,000 per annum for the first year and would negotiate after that. She refused to sign the contract after he submitted the tax and super forms.
He was never given access to Xero. It was meant to be used to enter his hours so his wages could be processed. Ms Leonard refused him access so he was reliant on her handwritten timesheets. Her timesheet was completed at the end of his time at Sweet Art due to payment discrepancy.
They had an agreement that he would be paid weekly. Ms Leonard would tell him she didn’t have cash in the business and personal accounts, and he would have to wait for a cake purchase “etc” and the funds to clear before she could pay him something.
At times Ms Leonard would give him her bank card and PIN to go to the 7/11 to collect whatever was available. This allowed him to check the amount in the account, leaving her with $100, as she had requested, in the account.
His role was set out in the employment contract. He was always employed as a business development manager, which was evidenced in the work he was performing.
He had asked Martin Stow to assist in developing an online ordering system. He arranged for Mr Stow to travel from Victoria to discuss this. He was disappointed that Ms Leonard did not want to pursue this due to not having the funds, under $500 per annum.
Ms Leonard had not paid him completely for his past hours. There was still over $4,000 owing, as per her handwritten statement, including superannuation and tax.
He put up the commission structure notice two months after he started working for
Ms Leonard, due to the state of Sweet Art and trying to find ways for her to pay him, as he could not pay his rent. This was when Craig Burton offered to help him from becoming homeless.
At no time did Ms Forrester tell him she wanted to take over Sweet Art.
The bullying and harassment he was subjected to was discussed with Ms Forrester and
Ms Leonard on a Friday night. He was crying, very distressed, and Ms Leonard promised to do better. She showed them a little Buddha as a reminder to do better, for the previous ways she had treated people inappropriately. It is incorrect that the discussion was purely about family issues. The cause of his distress was the way in which Ms Leonard was treating him and how he felt as an employee.
He was never overpaid. He was underpaid. He referred to his statement dated
4 October 2022.
He understood Ms Leonard reported the incident at the shop to Surry Hills Police. No further action was taken. He was never contacted about it or interviewed by police.
He knew of various other unhappy employees. Withholding his wages was a form of bullying. He could not afford rent or food.
He was promised $70 per hour with respect to the installation at the Art Gallery. They raised $18,000 which Ms Leonard spent on an overseas trip. He invoiced the job as she had no idea how to do it. He was responsible for at least 70% of the three installations.
He was not heavily medicated whilst working at Sweet Art. He was reviewed by a psychiatrist, who increased his medication, following that employment.
He understood that Ms Leonard owned two other Oxford Street properties. He was asked to find a way to re-mortgage them so they would have money to “take Sweet Art back to its glory days”. Due to her age, Ms Leonard was unable to get further loans. He was asked to find the best sale. Three agents came in at $4,000,000, but Ms Leonard wanted $4,250,000. He was unsure what happened to these properties.

Evidence of first respondent, iCare

Mr Butcher wrote to Ms Leonard on 19 March 2021, in response to her letter dated
28 February 2021.
ICare noted that the worker’s claim was declined on 20 January 2020. It had received further information and a request for a review. This led to liability being accepted on 31 August 2020. Ms Leonard was advised of this by telephone on 31 August 2020.
Mr Butcher was unable to comment on why there was not an active policy. He pointed out that it was an employer’s responsibility to ensure it had a valid policy.
As regards the date of injury, Mr Butcher advised that a psychological injury is considered a “disease” injury. It is deemed by s 15 of the 1987 Act to have occurred on either the first date of incapacity or when a claim was made. As Ms Leonard had pointed out, the COC issued on 28 October 2019 was the first period of incapacity and was the deemed date of injury in accordance with the legislation.
The worker’s title was not significant when considering his employment. Ms Leonard’s statement and other evidence confirmed that she employed Mr Michaels in some capacity. This was sufficient to allow him to make a claim.
Regarding the issue of not being paid, it was not significant whether it was considered “wages”, “salary” or an hourly rate of pay. The main issue was whether the worker was paid for the work he completed and as agreed.

Period

WC Weekly

Payment Amount

Ability to Earn

Gifted Rent

17 January 2020 to 8 May 2020 (17 weeks)

$923.08

$0.00

$5,780

11 May 2020 to 3 July 2020 (8 weeks)

$923.08

$0.00

$2,720

18 December 2020 to 1 January 2021 (3 weeks)

923.08

$0.00

$1,020

12 February 2021 (1 week)

$923.08

$0.00

$340

26 February 2021 to 19 March 2021 (4 weeks)

$923.08

$0.00

$1,360

The second respondent submitted that he set out in his statutory declaration dated
29 April 2021, which he provided to iCare, payments he received for expenses incurred whilst assisting Mr Burton.

764.The second respondent submitted that the gifted rent of $340 per week did not demonstrate a capacity for work earning $340 per week. The amount gifted is not the reflection of the actual ability to earn by the second respondent.

The second respondent relied on the evidence of his treatment providers in relation to his capacity for work.
The second respondent disagreed that the work he carried out in the relevant period was the work of a real estate agent and he was able to earn $1,588 per week. He submitted he did not participate in real estate agent work. He was providing assistance to Mr Burton through showing apartments and tidying them up. This was completed via Facebook and showing the apartments was for no more than 15 minutes each, with no more than three per week.
The second respondent submitted that he did not have any real estate qualifications or licence, as required to perform this work. It could not be regarded as suitable employment, given he had no previous education, skills, or work experience as a real estate agent.
The second respondent submitted that, in accordance with the ongoing COCs, he had no capacity for work for the period from 17 January 2020 to 19 March 2021.

SUMMARY

Both the second respondent and Ms Leonard have given contradictory and to some extent self-serving evidence. It has been necessary to analyse their evidence in some detail. There is documentary evidence of some events, and evidence of other witnesses, some of which was of little assistance.
Ms Leonard has provided references as to her character and the manner in which she ran her business. While I have reviewed that evidence, I ultimately found it of little assistance in determining the issues in dispute.

Did the worker sustain injury arising out of or in the course of employment with the applicant; and if so, what was the date of the injury?

I am satisfied that the worker has sustained a psychological injury arising out of or in the course of his employment with the applicant. He need not establish that he was “bullied and harassed” by Ms Leonard, and it is in some respects unfortunate that that terminology is often employed in circumstances where a worker has sustained a psychological injury. I do, however, accept the second respondent’s submission that promises, which were not fulfilled, to pay his wages, could in themselves be seen as a form of harassment.
I accept the first respondent’s submissions about the basis on which the worker was employed. It is consistent with the evidence of Ms Leonard’s first statement, with the contract of employment (which she prepared, albeit that it was never signed), and with Ms Forrester’s evidence.
The worker was to be employed full time, and his salary was to be $60,000 per annum.
Ms Leonard said in her first statement that she did not agree to an increase in his hourly rate and paid him at the normal rate. She said she employed him to work Monday to Friday, from 9am to 5pm, at the rate of $30 gross per hour, plus superannuation.
Ms Leonard later attempted to resile from this evidence, telling iCare that the worker was never “employed” by the business, at the same time saying he was offered part time work. She later stated that he was a sub-contractor, and in her final statement that the initial intention was for him to work full time, and they had discussed him being a sub-contractor, which was the first time she had given this evidence.
I accept the first respondent’s submission that the evidence of Ms Leonard’s first statement is more likely to be accurate, and she has not contradicted Ms Forrester’s evidence about the basis on which Mr Michaels was employed.
Ms Leonard’s evidence is that, if the worker did not recover monies owed to the applicant, he would not be paid. She said he needed to bring in money in order to be paid. She seemed to believe that it was appropriate in the circumstances to withhold his wages.
I accept that the worker was paid sporadically, and he had to consistently request payment of his wages. The text messages, Ms Forrester’s evidence, the clinical records of Dr McKay, Open Dialogue Psychotherapy, and Ms Leonard’s evidence, confirm this.
Ms Leonard, for example, said that had the worker collected outstanding debts, she would have had the money to pay him, and he knew that she could only afford to have him if he collected the outstanding money. She also said when he started to demand payment and threaten her, she had to pay what she could, when she could.
The applicant maintains that the worker has in fact been overpaid. Whether or not that is the case, it is clear that he was not paid on a regular basis, as an employee could expect to be paid, not “what [the applicant] could, when [it] could.” He had to repeatedly request that he be paid, albeit often in an inappropriate manner, including banging on the window (on Ms Leonard’s evidence) or door (on his evidence) of the shop, and demanding his money, and swearing at Ms Leonard.
The worker clearly had a longstanding psychological condition and had in fact attempted suicide only some weeks before he met Ms Leonard. He was, however, employed in a bottle shop even after this attempt. He was not incapacitated for work. I do not accept the applicant’s submission that he was already incapacitated when he commenced work for Sweet Art.
The medical evidence is consistent in supporting that the worker’s condition was aggravated, accelerated, exacerbated or deteriorated by employment with the applicant, pursuant to
s 4(b)(ii) of the 1987 Act. I will use the term “aggravated” for convenience.
I have discussed the medical evidence in some detail above.
As the first respondent submitted, the only medical evidence relied on by the applicant is that of Dr George in his second report. Dr George accepted that the worker’s employment with Sweet Art aggravated his condition but did not feel that he was able to state whether employment was a substantial contributing factor or the main contributing factor to that aggravation.
The first respondent submitted that, against that evidence, there is the evidence of
Dr McKay, Dr Clark, and Dr Canaris. I would add to that the evidence of Mr Derkenne and
Dr Chow.
I do not accept the submission that the worker’s condition somehow improved while he was employed by the applicant because his medication was decreased. The medical evidence is overwhelmingly to the effect that he sustained an aggravation of his condition as a result of his employment with the applicant.
I also do not accept the submission that the various practitioners did not obtain a proper history and their evidence should not therefore be accepted. There were certainly some differences in the histories they obtained, which is to be expected. However, in my view, their opinions were provided in a “fair climate”[6] and I see no reason not to accept their conclusions on the issue of “injury”.
[6] Paric v John Holland (Constructions) Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58: (1985) 62 ALR 85.
I accept that the deemed date of injury was 28 October 2019. The COC issued on
28 October 2019 was the first period of incapacity in respect of which compensation was claimed. The worker’s perception of the date of injury, or the date initially recorded by iCare, are not relevant to the deemed date.
The applicant submitted that the second respondent was not employed on 28 October 2019. That is irrelevant to a deemed date of injury. In any event, Ms Leonard’s evidence is that he had never been dismissed or terminated, and his evidence is that he had not been notified of the termination of his employment, nor had he resigned. Ms Leonard stated that he never resigned or provided any indication he was not returning to work.
The applicant submitted that it did not concede that it was not insured on any date other than 28 October 2019. That is not consistent with Ms Leonard’s evidence in any event. She stated that she became aware that the applicant was not insured when she was made aware that the claim was lodged and arranged for a new policy.
Ms Leonard also gave evidence that apparently the business did not have a current insurance policy as at 1 July 2019, and she had not been able to verify details of the change from Allianz to iCare. ICare advised her that the applicant was not insured for the 2019/2020 financial year.

Was employment the main contributing factor to the aggravation, exacerbation, acceleration or deterioration of the worker’s disease?

The definition of “main contributing factor” was discussed by Deputy President Snell in AV v AW.[7]
[7] [2020] NSWWCCPD 9 at [66] – [78].
After considering the various authorities, Snell DP said:
“It follows that the test of ‘main contributing factor’ involves consideration of whether there were competing causal factors (both work and non-work related) of the aggravation, and whether on a consideration of relevant causal factors the employment represented the main contributing factor.”
The following may be taken from the above:

(a)The test of ‘main contributing factor’ in s 4(b)(ii) is more stringent than that in s 4(b)(ii) in its previous form, which applied in conjunction with the test in s 9A. There will be one ‘main contributing factor’ to an alleged aggravation injury.
(b)The test of ‘main contributing factor’ is one of causation. It involves consideration of the evidence overall, it is not purely a medical question. It involves an evaluative process, considering the causal factors to the aggravation, both work and non-work related. Medical evidence to address the ultimate question of whether the test of ‘main contributing factor’ is satisfied is both relevant and desirable. Its absence is not necessarily fatal, as satisfaction of the test is to be considered on the whole of the evidence.
(c)In a matter involving 4(b)(ii) it is necessary that the employment be the main contributing factor to the aggravation, not to the underlying disease process as a whole.” (at [77]-[78]).

The lay and medical evidence supports the conclusion that the worker’s employment was the main contributing factor to the aggravation of his disease.
The only medical evidence against that conclusion is that of Dr George, in his supplementary report dated 17 December 2019.
Dr George was asked whether the worker’s employment was the main contributing factor to his psychological injury. He was not asked whether it was the main contributing factor to aggravation of his psychological condition (disease), which would have been the appropriate question.
Dr George responded that he did not believe he was in a position to state that employment was the [sic] substantial or main contributing factor to the worker’s psychological injury. He had indicated that the worker had an exacerbation of an underlying condition, which tended to acknowledge the existence of a pre-existing condition.
Dr McKay opined that the second respondent’s employment was the main contributing factor to his injury, as did Dr Clark. Dr Canaris opined that the history suggested a major worsening of the worker’s mood disorder in response to workplace difficulties.
Bearing in mind that employment need only be the main contributing factor to the aggravation of the disease, and not to the underlying disease, I am satisfied that employment with the applicant was the main contributing factor to the aggravation of the second respondent’s disease.
As I have determined that the worker sustained a “disease injury”, it is unnecessary that I consider the application of s 9A of the 1987 Act. In any event, as it provides that employment must be a substantial contributing factor to an injury, it is a less stringent test than that of main contributing factor.

Was the worker’s injury wholly or predominantly caused by the applicant’s reasonable action with respect to the provision of employment benefits?

The applicant submitted that, if the worker had sustained an injury, it was wholly or predominantly caused by its reasonable action with respect to the provision of employment benefits, that is, payment of wages.
An employer that seeks to rely on a defence pursuant to s 11A of the 1987 Act bears the onus: Pirie v Franklins Ltd;[8]and Department of Education and Training v Sinclair.[9]
[8] [2001] NSWCC 167; (2001) 22 NSWCCR 346.
[9] [2005] NSWCA 465; 4 DDCR 206.
The applicant submitted that if the worker asserted that his injury was caused by not being paid in accordance with his understanding of the contract, then its action was in respect of provision of employment benefits and was reasonable. The submission was not explored further.
The first respondent submitted that avoiding paying the worker had nothing to do with the provision of employment benefits. The second respondent submitted that the provision of the contract was not an employment benefit, and the whole or predominant cause of his injury was the non-payment of wages.
There is little appellant authority on the meaning of “employment benefits”.
In Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd,[10] Roche DP considered whether the worker’s psychological injury was wholly or predominantly caused by his receipt of a letter from his employer that advised him that his employment, in which he was paid at above the award rate, was to be terminated. However, at the same time he was offered what was essentially the same position, at which he would be paid in accordance with the award, so his wage would be reduced.
[10] [2008] NSWWCCPD 96 (Temelkov).
The appellant (Mr Temelkov) submitted that the letter he received was not a provision of employment benefits, but “rather the non-provision of employment benefits wrapped in the threat of cessation of employment for non-acceptance”.
Roche DP held that Mr Temelkov’s injury was wholly or predominantly caused by action taken or proposed to be taken by the employer with respect to “retrenchment or dismissal” or the “provision of employment benefits”. It “included the terms of the letter of 3 March 2007 and the manner in which the Club’s decision or proposal was communicated to Mr Temelkov…” (at [112]).
Roche DP did not expand on his reasons for determining that the employer’s action was one with respect to the provision of employment benefits, perhaps because he found it had also taken action with respect to retrenchment or dismissal, so that s 11A was in any event engaged.
In ACR v Grace Worldwide Pty Ltd[11] the employer had stood down some of its employees in an attempt to qualify for the JobKeeper benefit during the COVID-19 pandemic.
[11] [2021] NSWPICPD 44 (Grace Worldwide).
After referring to the Member’s determination, Wood DP said (at [276]):
“…It is common knowledge that the JobKeeper scheme was implemented by the Australian Government to help support businesses and keep workers in employment during the COVID-19 crisis. That is, it was a benefit provided to employers which was passed on to their employees and was intrinsically linked to ensuring that workers remained in employment. The benefit was not payable outside of an employment relationship and was not reward for work done. The scheme was of limited application. In my view, it cannot be argued that the JobKeeper payment did not constitute an employment benefit.” (Emphasis added).
It seems to me that the payment of Mr Michaels’ wages was “reward for work done” and was not the provision of an employment benefit. A contract of employment necessarily involves the exchange of a worker’s labour for payment by the beneficiary of that labour. The payment of his or her wages does not somehow represent some additional benefit bestowed by the employer.
In the event that I am wrong in determining that payment of the worker’s wages did not constitute action with respect to provision of employment benefits, I will consider the other components of s 11A of the 1987 Act.
In order to satisfy the requirements of s 11A of the 1987 Act, the worker’s injury must have been wholly or predominantly caused by the applicant’s action with respect to payment of his wages.
The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused”.
The test of causation to be applied is that described in Kooragang Cement Ltd v Bates;[12] Ponnan v George Weston Foods Ltd;[13] and Temelkov.
[12] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[13] [2007] NSWWCCPD 92.
Fitzgerald JA in Manly Pacific International Hotel Pty Ltd v Doyle[14] said that whether actions, in respect of one of the specified matters, were the whole or predominant cause of psychological injury was “a question of fact and degree, which involves consideration of all the factors which produced (the worker’s) condition” (at [8]).
[14] [1999] NSWCA 465; (1999) NSWCCR 181.
His Honour said the two questions to be decided were whether:
“(i) the whole or predominant cause of Mr Doyle’s psychological injury was the appellant’s action with respect to Mr Doyle’s transfer from one position to another, and, (ii) if so, whether the appellant’s action with respect to Mr Doyle’s transfer was reasonable.” (at [4]).
Snell DP discussed the issue of causation in Hamad. He said in that matter:
“…There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.” (at [88]).
I am satisfied that the applicant’s action with respect to payment, or more accurately, non-payment, of the worker’s wages was at least the predominant cause of his injury. Mr Michaels was certainly in a vulnerable state when he commenced employment with the applicant, but I have determined that his employment was the main contributing factor to the aggravation of his psychological condition.
The worker had difficulty paying for his accommodation, which was a factor of the non-payment of his wagers. There were also fallings-out with friends and neighbours, but in my view, these matters were outweighed by the work-related matters, and the medical evidence is to that effect.
As to the reasonableness of the applicant’s action, Geraghty CCJ considered the meaning of reasonableness in Irwin v Director-General of Education.[15] His Honour said:
[15] NSWCC 14068/97, 18 June 1998 (Irwin).
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than 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.”

I do not believe it was reasonable action by the applicant to pay the second respondent what it could, when it could, which is Ms Leonard’s own evidence, rather than on a regular basis. It was not reasonable for the worker to have to regularly approach his employer and request to be paid, so that he could pay his living expenses.
The applicant was clearly in financial difficulties, but that does not make its actions towards the second respondent reasonable. As the first respondent submitted, it could not possibly be said that it was reasonable that the applicant was not paying the worker for the work he was doing.
The applicant has therefore failed to establish that the worker’s injury was caused by its reasonable action with respect to the provision of employment benefits.

Incapacity

The worker gave brief evidence in his first statement of having done some work for
Ms Forrester towards the end of October 2019. Ms Forrester said he was not paid for any work.
The worker gave no evidence of having undertaken any work for Mr Burton until Ms Leonard made a statement about this. He did, however, provide iCare with a statutory declaration in April 2021 that confirmed some work he had done for Mr Burton, and that he was sometimes gifted rent. This may have been in response to an enquiry prompted by Ms Leonard’s letter to iCare.
ICare had advised Ms Leonard that it would review the worker’s earnings and business activities and consider whether any further action was required. It said it continued to manage the claim and regularly review his work capacity and ongoing entitlements.
I requested that the parties address in their submissions the worker’s capacity for work from from 17 January 2020 to 19 March 2021, during which period he was being gifted rent and doing some work for Mr Burton. The applicant submitted his capacity during that period is relevant to the entire period in which he has been in receipt of weekly benefits, and to the entire period subject to the dispute. Only the second respondent provided a wages schedule.
The first respondent submitted that the second respondent’s ability to earn from
17 January 2020 to 19 March 2021 was $340 per week.
I do not accept the second respondent’s submission that, in accordance with the COCs issued, he had no capacity for work for the period from 17 January 2020 to 19 March 2021. Whatever the COCs may have said, he demonstrated some capacity during that period.
In July 2020, Dr Clark, who was qualified by the worker, opined that he was capable of part time work, but not for the applicant.
By 23 March 2021, when Dr Bayes reviewed him, the worker’s condition appears to have deteriorated, and I have referred above to Dr Bayes’ report dated 6 April 2021. By August 2021, the worker had “struggled with agoraphobia”.
In my view, the worker had a limited capacity for work during the period from
17 January 2020 to 19 March 2021, but from about that time, the medical evidence suggests that he has had no work capacity.
I do not accept that the work the second respondent did for Mr Burton means that he could have, or could, work as a real estate agent. He lacks the qualifications to do so. He was not working on a full-time basis, and I do not believe he had the capacity to work full time. It appears that, at least initially, he was on good terms with Mr Burton, and it is likely that the latter tried to assist him by offering small tasks and gifted rent. This is unlikely to have been the case with other employers.
I do not accept the applicant’s submission that the second respondent demonstrated an earning capacity of over $400 per hour because he earned at least $340 per week by working for 45 minutes per week. It does not logically follow that because a worker is able to earn a certain amount for what may be less than an hour’s work, spread over a week, he or she is capable of doing the same work or earning the same amount for the rest of the hour, or the rest of the week.
The definition of suitable work in s 32A of the 1987 Act does not permit me to take into account whether employment was available to the worker, the nature of his pre-injury employment, or his place of residence. I am to have regard to the nature of his incapacity, his age, education, skills and work experience.
The worker was 52 years old in 2019. His experience appears to have been mainly in sales, but there is not a lot of evidence about his pre-injury employment, apart from his charitable endeavours.
The worker’s psychological condition was such that, in my view, he would have difficulty in performing sales work. He was isolated, becoming agoraphobic, and abusing alcohol. The work he was doing for Mr Burton represented his work capacity.
I am satisfied that, during the period from 17 January 2020 to 19 March 2021, the second respondent had the capacity to earn $340 per week, received as gifted rent.
The second respondent’s statutory declaration dated 29 April 2021 also disclosed payment of $478.02 between 15 July 2020 and 11 November 2020, which appears to have been in addition to the gifted rent. That amounted to $28.11 per week.
I accept that the second respondent also had the capacity to perform those small “odd jobs” during the period from 17 January 2020 to 19 March 2021. That provided an ability to earn of $368.11 per week during that period.
During the period from 17 January 2020 to 19 March 2021, the worker was in the “second entitlement period” and his weekly payments would be calculated pursuant to s 37 of the 1987 Act.
As the worker had current work capacity but had returned to work for less than 15 hours per week, his entitlement to weekly payments is calculated as 80% x PIAWE, less his current weekly earnings.
The worker’s PIAWE were $1,153.85 per week. The calculation is therefore $1,153.85 x 80% = $923.08, less current weekly earnings of $368.11 per week. He should therefore have been paid $554.97 per week.
The worker was paid during the period from 17 January 2020 to 19 March 2021 on the basis that he had no capacity for work, at the rate of $923.08 per week. The difference is therefore $368.11 per week, over a period of 72 weeks and 5 days. That amounts to $26,766.85.
The applicant is entitled to a reduction of $26,766.85 in the amount payable to the first respondent.

Medical expenses

I do not accept the submission that the applicant is not entitled to payment for psychological treatment because he was receiving treatment before the injury occurred.
As the first respondent submitted, there was a need for treatment, based on the medical evidence that there had been an exacerbation of the worker’s condition; and as the second respondent submitted, the need for treatment does not have to have only one cause.[16]
[16] Murphy v Allity Management Services Pty Ltd [2015] NSWWCCPD 49.
Dr Canaris opined that the worker’s treatment was reasonable and appropriate; and the need for it arose from the compensable workplace injury.
The applicant directed particular submissions to the provision of a “puppy dog”, that is, a support animal.
Snell DP held in State of New South Wales (Central Coast Local Health District) v Bunce[17] that:
[17] [2020] NSWWCCPD 48.
“Without seeking to set the outer limits of the phrase, the term ‘therapeutic treatment’ in para (b) of s 59 [of the 1987 Act] is, in my view, sufficiently broad to encompass the provision of an assistance dog in an appropriate case” (at [74]).
The medical evidence with regard to the provision of the animal is all one way in supporting the possible efficacy of such treatment. Dr Canaris, who was qualified by iCare, fairly opined that the provision of a dog might help the worker, and his own experience bore that out, although it did not greatly influence impairment.
There is evidence that the provision of the support animal did in fact assist the worker. I do not accept that its cost was excessive. I am satisfied that the criteria discussed by Roche DP in Diab v NRMA Ltd[18] are satisfied in respect of the provision of the animal.
[18] [2014] NSWWCCPD 72.
I have determined the following:
(a)    the second respondent sustained injury, that is, aggravation of a disease, pursuant to s 4(b)(ii) of the 1987 Act, deemed to have happened on
28 October 2019, in the employ of the applicant;
(b)    the applicant does not have a defence to the claim pursuant to s 11A of the 1987 Act;
(c)    the second respondent’s PIAWE were $1,153.85 per week;
(d)    the second respondent had work capacity from 17 January 2020 to
19 March 2021, but has otherwise had no capacity for work during the period in which the first respondent has made weekly payments of compensation;
(e)    the medical treatment provided to the second respondent, including the provision of a support animal, was reasonably necessary treatment, and
(f)    the applicant, which has conceded that it was not insured at the relevant time, is to reimburse the first respondent for payments made to, for, or on behalf of the second respondent, subject to a reduction of $26,766.85.

855.The orders are set out in the Certificate of Determination.

Period	WC Weekly Payment Amount	Ability to Earn	Gifted Rent
17 January 2020 to 8 May 2020 (17 weeks)	$923.08	$0.00	$5,780
11 May 2020 to 3 July 2020 (8 weeks)	$923.08	$0.00	$2,720
18 December 2020 to 1 January 2021 (3 weeks)	923.08	$0.00	$1,020
12 February 2021 (1 week)	$923.08	$0.00	$340
26 February 2021 to 19 March 2021 (4 weeks)	$923.08	$0.00	$1,360

[2023] NSWPIC 525

05 October 2023