Sydney South West Area Health Service v Sharma
[2009] NSWWCCPD 90
•4 August 2009
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Sydney South West Area Health Service v Sharma [2009] NSWWCCPD 90 | |||||
| APPELLANT: | Sydney South West Area Health Service | |||||
| RESPONDENT: | Sanjay Sharma | |||||
| INSURER: | Employers Mutual Ltd | |||||
| FILE NUMBER: | A2-8835/08 | |||||
| ARBITRATOR: | Ms M Trenerry | |||||
| DATE OF ARBITRATOR’S DECISION: | 6 March 2009 | |||||
| DATE OF APPEAL DECISION: | 4 August 2009 | |||||
| SUBJECT MATTER OF DECISION: | Psychological injury; Sections 9A and 11A of the Workers Compensation Act 1987; discipline; reasonable action by the employer. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | DLA Phillips Fox | ||||
| Respondent: | Gajic & Co | |||||
| ORDERS MADE ON APPEAL: | 1. Time to appeal is extended to 17 April 2009. 2. The decision of the Arbitrator dated 6 March 2009 is confirmed. 3. The Appellant is to pay the Respondent’s costs of the appeal. | |||||
BACKGROUND TO THE APPEAL
The worker, Mr Sharma, claimed that he suffered a psychological injury in the course of his employment with the Appellant, Sydney South West Area Health Service, at the Fairfield Hospital (‘the Hospital’), as a result of false complaints, allegations, harassment and bullying between 2004 and 6 August 2007.
The Appellant denied liability on the grounds that:
· Mr Sharma did not suffer a psychological injury arising out of or in the course of his employment;
· any injury suffered was as a consequence of serious and wilful misconduct by Mr Sharma;
· if Mr Sharma suffered a psychological injury, his employment was not a substantial contributing factor to that injury;
· if Mr Sharma received a psychological injury, the injury was wholly or predominantly caused by reasonable action taken by it with respect to discipline within the terms of section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’), and
· Mr Sharma was not incapacitated, or if he was, it was not as a result of his employment.
On 5 November 2008 Mr Sharma filed an ‘Application to Resolve a Dispute’ (‘the Application’) in the Commission seeking weekly benefits, medical expenses and lump sum compensation for the psychological injury he claimed he suffered as a consequence of the nature and conditions of his employment between 2004 and 2007.
The matter was heard before a Commission arbitrator on 17 February 2009. In a reserved decision delivered on 6 March 2009, the Arbitrator found in favour of Mr Sharma. The Certificate of Determination with an accompanying ‘Statement of Reasons’ (‘Reasons’) issued on 6 March 2009 records the following orders:
“1. The Respondent to pay the Applicant’s weekly benefits compensation pursuant to s.40 at the maximum statutory rate for worker with two dependant children from 7 August 2007 to date and continuing.
2. The Respondent to pay the Applicant’s reasonable and necessary medical expenses pursuant to s.60 upon production of accounts and / or receipts;
3. That the claim for lump sum compensation for psychological injury arising out of the nature and conditions of employment between 2004 and 6 August 2007 to be remitted to the Registrar for referral to an AMS.
4. That the Respondent to pay the Applicant’s costs as agreed or assessed.
5. For the purposes of Schedule 6 of the Workers Compensation Regulation 2003 I certify this matter as complex pursuant to Table 4, Item 4 and certify that there is to be a 20% increase for the Applicant and Respondent of the costs otherwise available at Item F of Table 1 for the following reasons:
(a)This was a psychological injury case where injury, s.9A and s.11A were in dispute. I am satisfied that the preparation of this matter required additional work over and above what is normally required.”
It is from this decision that the Appellant seeks leave to appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount at issue on appeal satisfies the monetary threshold set out in section 352(2) however, the appeal was not lodged within 28 days of the Arbitrator’s decision in contravention of section 352(4) of the 1998 Act.
Rule 16.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) permits the Commission in ‘exceptional circumstances’ to extend the time for filing an appeal. The onus of proving ‘exceptional circumstances’ rests with the Appellant.
The Rules do not set out the factors to be considered in the exercise of the discretion to extend the time for filing an appeal against the decision of an Arbitrator. However, this issue has often been the subject of judicial consideration. In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 Justice McHugh set out a number of guiding principles. He emphasised that the discretion to extend time should only be exercised where strict compliance with the rules will lead to an injustice for the applicant. In so deciding, regard should be had to (i) the history of the proceedings, (ii) the conduct of the parties, (iii) the nature of the litigation, (iv) the consequences for the parties of the grant or refusal of the application for extension of time, (v) the prospects of the applicant succeeding if leave is granted, and (vi) the respondent’s right, after the expiry of the time for appealing, to rely upon the decision made. These principles have been applied in a number of Commission decisions: see, for example, Howell v Stringvale Pty Ltd [2004] NSWWCCPD 22, and Alexandru v State Rail Authority of NSW [2004] NSWWCCPD 54.
In the present case, the Appellant claims that the Arbitrator’s decision was received on 9 March 2009. The appeal was filed at 4.48 pm on 6 April 2009, eighteen minutes late. The Appellant’s solicitor provided a detailed explanation for the delay in a letter to the Commission dated 16 April 2009. In short, instructions from the client were apparently received at 3pm on 6 April 2009, and the appeal hastily prepared and filed at 4.48 pm. The appeal was rejected on 8 April 2009 and ultimately accepted by the Commission on 17 April 2009. The Appellant submits that a substantial injustice would arise were it not granted an extension of time, “given the vast amounts in issue in the claim…”
Similar issues were recently considered by the Court of Appeal in Andrew Bryce vDepartment of Corrective Services [2009] NSWCA 188 (Bryce). (See also Bryce vDepartment of Corrective Services [2008] NSWWCCPD 116). In that case, the worker appealed the decision of Deputy President Roche to grant an extension of time to the employer for filing the appeal. The appeal was filed one day out of time. DP Roche said at [23]:
“Whilst the Department’s explanation for the appeal being filed out of time is far from satisfactory, I have determined, not without considerable reluctance, that exceptional circumstances exist that justify the extension of time to appeal in this matter. My reasons are as follows:
(a) the discretion to extend the time to appeal must be exercised in order to do justice between the parties;
(b) the appeal was filed only one day out of time;
(c) Mr Bryce has pointed to no prejudice he will face if time to appeal is extended by one day;
(d) the appeal raises issues that are strongly arguable and, in these circumstances, strict compliance with the time limit will work demonstrable and substantial injustice to the Department, as it will lose the opportunity to have the matter determined according to its substantial merits, and
(e) the Department’s solicitor acted with reasonable promptness, once instructions to appeal were given.”
In considering this paragraph, Allsop P said:
“9. … whether or not there are exceptional circumstances and whether or not to lose the right of appeal would work demonstrable and substantial injustice, were conclusions which were substantially factual conclusions. What must be shown therefore on this application is that the conclusions to which the learned Deputy President came were simply not open to him or were reached by him in error in application of principle.
10It was put that each of the five matters referred to by the Deputy President was not a consideration relevant to the conclusion of exceptional circumstances. I disagree. Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction, and all of the matters identified by the Deputy President in [23] can be seen as relevant to the consideration of that composite expression.
11There was no error of principle, in my view, in the Deputy President’s approach to the application and the operation of the composite phrase in subr (11). He did not misdirect himself as to the relevance of each of the matters in [23]. Bearing in mind the matters the Deputy President took into account in [23], the conclusions that he reached were, in my view, open to him given the relevance of those considerations to the various matters within the composite rule. In those circumstances, in my view, there is no legal error shown in either the approach or the conclusions of the Deputy President, his conclusions being open to him.”
In the present case, I accept Mr Sharma’s submission that there is no real explanation as to why “the client” (presumably the insurer) failed to provide instructions to appeal until 3pm on the last day for filing. Mr Sharma’s submission that this shows “indifference’ to the Commission’s practices and procedures is not without merit. I also accept his submission that the extent of the award itself does not amount to ‘exceptional circumstances.’
Like Deputy President Roche in Bryce, I have concluded, also with some reluctance, that exceptional circumstances exist that justify an extension of time to appeal. I have come to this view for the reasons enunciated by DP Roche at [23] of his decision. Mr Sharma has not identified any prejudice he would suffer were time extended: the appeal was filed just eighteen minutes late, and the Appellant’s solicitor acted promptly once instructions to appeal were received. The appeal also raises significant issues to which I will refer in due course.
For the reasons stated, time to appeal is extended to 17 April 2009.
THE ISSUES IN DISPUTE
Although the Appellant has identified eleven grounds of appeal, they really fall into four categories as follows:
1. The Arbitrator’s refusal to admit a document attached to the Reply titled “Confidential Investigation – Incident between 2 Security Officers…occurring 24 June 2007.”
2. The findings on the issue of ‘injury.’
3. The treatment of the medical evidence.
4. The finding that section 11A did not apply to the circumstances of this case.
THE EVIDENCE
Mr Sharma’s Evidence
Mr Sharma prepared a detailed statement dated 29 October 2008. He said that he came to Australia from India in about 1996. He commenced employment as a security officer at the Hospital in 1999.
Mr Sharma’s duties involved conducting security patrols both inside and outside the Hospital. He was also required to respond to alarms activated by medical staff and to secure restricted areas of the Hospital.
In 2004 an allegation was made that he was looking at female body parts on the CCTV at the Hospital which Mr Sharma denied. He was ultimately terminated from his job in February 2005.
In 2006 he brought proceedings for re-instatement in the Industrial Relations Commission [IRC]. He was successful, received monetary compensation, and returned to work at the Hospital in early 2007. The Hospital initially appealed that decision, but it was withdrawn. Mr Sharma claimed that he was visited at home by “Adam” from the Human Resources section of the Hospital who tried to persuade him to resign.
Mr Sharma claimed that his return to work was very stressful, and that he was “always looking over my shoulder.” He was involved in an incident with a fellow security guard on 24 June 2007. On that occasion, he started his shift at around 6pm with two other security officers, Thomas Pantelis and Marwan Salah. At around 9pm, Mr Sharma entered the office where Mr Pantelis was working. He claimed that Mr Pantelis started yelling and abusing him for no apparent reason. Mr Sharma felt distressed, upset and frightened: his heart “was racing.” Mr Pantelis later claimed that Mr Sharma threw a bunch of keys at him: Mr Sharma said he threw them on the desk. Mr Pantelis reported to the security manager that Mr Sharma had an argument with him. Mr Sharma told the security manager that there was no argument but that Mr Pantelis had simply started swearing at him.
Mr Sharma completed his shift but said he found it difficult since he was feeling very stressed and tense. The next day he attempted to consult his general practitioner, Dr Shah, but he was not available, and Mr Sharma was told to return the next day. He did not report to work the next night. On 26 June 2007 he consulted Dr Shah who put him off work for a few days.
When Mr Sharma resumed work he was contacted by Mr Pantelis who apologised for the incident and claimed that he was only joking. Mr Sharma said that he was astonished by this remark and felt very stressed since he had been informed that the Hospital intended to investigate the matter further.
A few days later, Mr Sharma was asked to attend an interview on 19 July 2007 with Ms Daena Wilson, the Human Resources Manager. He said that he told Ms Wilson that Mr Pantelis had already apologised to him to which Ms Wilson responded: “Well I have been told to take action.”
Mr Sharma attended the interview with a colleague “Tim” but was told that Tim could not accompany him. He subsequently received a “transcript” of the interview, a document titled “Summary of the Fact Finding Interview with Sanjay Sharma held on 19 July 2007.” He noticed some errors. He made some amendments then took the document to Ms Wilson who said “I will change it…this matter is finished…just sign it and I will make the amendments later on and give you a copy.”
Some days later Mr Sharma was asked to attend another meeting on 6 August 2007. Up to this time, he had continued to see Dr Shah. Following the meeting on 6 August 2007 Mr Sharma ceased work at the Hospital and has not resumed since. He subsequently separated from his wife in about September 2007.
Mr Sharma was referred to a psychologist, Dr Metry, and to a psychiatrist, Dr Sharah for treatment.
Dr Shah certified Mr Sharma unfit to work from that time due to “Depression, Anxiety and Insomnia.”
In a report dated 17 August 2007 addressed to the Appellant’s insurer, Dr Shah made the same diagnosis, noting the cause of it as “…a result of cumulative events.” When asked the question: “In your diagnosis did you consider the employment to be the most significant contributing factor?” Dr Shah replied: “YES – due to harassment and bullying at work as per patient history.”
In a report dated 2 October 2008 addressed to Mr Sharma’s solicitors, Dr Shah stated:
“Mr Sanjay Sharma presented to me on 26.06.07 complaining of headaches, stressed and not feeling well.
On history he mentioned that his problem at work started in 2004 and was unfairly terminated from work in 2005. He won the court case against the employer and regained his job with all his entitlements.
He said one of his colleagues abused him at work for no reason on 24.6.07. Later the colleague apologised. However the Human Resources Manager was instructed to investigate the matter. When he tried to attend the interview with a colleague, management refused it as he was from his department.
When patient had to attend a disciplinary interview on 06.08.07 by management without telling him who the witnesses were, he became very upset, angry and depressed.
On 07.08.07 he presented feeling very depressed, crying, helpless and reported suffering harassment at work. Again, I counselled him and advised to start anti-depressants and report the incident to the union.”
Thereafter Dr Shah described the treatment, referrals and certification. He concluded that Mr Sharma remained unfit for work.
Dr Shah’s notes were attached to the Application. They are difficult to decipher, but there are references to symptoms of stress, anxiety and depression in 2006.
Mr Sharma consulted Dr Leonard Lee, consultant psychiatrist, at the request of his solicitors on 18 December 2007. In a report of the same date, Dr Lee noted:
“Mr Sharma suffers from depression with insomnia, loss of appetite, impaired concentration, anhedonia and anxiety. He is also irritable. He occasionally assists a friend at a service station about once a week, but is incapable of doing any more work than this due to the above symptoms.
His problems began sometime in 2004 when he was investigated because of allegations that he was looking at female body parts on [CCTV]. He believes that this apparently false complaint occurred because the security manager…might have had personal issues with him, and also because management saw him as a threat because he had helped other people fight for their rights as a union member.
In 2005 he was unfairly terminated…
In June 2006 [the IRC] found in Mr Sharma’s favour…A senior Human Resources officer kept trying to get him to resign…”
Dr Lee then set out the history of events following the incident on 24 June 2007, consistent with the claims made by Mr Sharma in his statement. He then noted:
“Because of the false allegations against him that he had been looking at women inappropriately, his ex-wife distrusted him. She recently applied for a divorce and gained it…”
Dr Lee concluded:
“On the basis of the history obtained and his description of symptoms, it appears that Mr Sharma has a major depressive disorder which has not responded to treatment. It appears that his condition has been substantially caused by work, although I do not have any collaborative information at this stage. However, I note that the employer’s previous claim against him was dismissed by the Industrial Relations Commission which tends to support his version of events.
The injuries have caused him severe chronic depression. His prognosis is guarded and he has not responded to treatment. It has also caused the break up of his marriage, which further contributes to his depression. His present condition is poor.
He is unfit for his pre-injury occupation and is only fit for very restricted duties about once a week. He would be unable to work as a security guard.”
Clinical notes from Dr Sharah were similarly difficult to decipher, but it appears that Mr Sharma consulted him on referral from Dr Shah initially on 30 October 2007 and thereafter at regular intervals to January 2009.
The Appellant’s Evidence
The Appellant relied upon a detailed report titled “Pre-Liability Stress Assessment” under the hand of Greg Anning, clinical psychologist, dated 25 September 2007.
Mr Anning concluded that, although Mr Sharma presented with a number of depressive and anxiety symptoms consistent with a psychological condition, he was exaggerating his symptoms such that Mr Anning could not confirm whether or not he was suffering from such a condition.
Mr Anning set out the history of events commencing with Mr Sharma’s termination of employment on 11 February 2005 for misconduct. Mr Anning noted that on 30 November 2006 the IRC ordered that Mr Sharma be re-instated, that this decision was appealed, and the appeal withdrawn in February 2007.He noted that Mr Sharma did not receive back pay as ordered by the IRC until mid March 2007, and that in April 2007 Mr Sharma returned to the IRC in relation to his entitlements. He then said:
“On Sunday 24 June 2007 Mr Sharma was involved in an altercation with another Security Officer, Mr Tom Pantelis. Mr Sharma attended a fact finding interview on 19 July 2007.
On Monday 6 August 2007 Mr Sharma attended a disciplinary interview with the General Manager, Mr Anthony Schembri and Ms Wilson present. Mr Sharma was given a first and formal warning for aggression towards a co-worker. Mr Sharma ceased work following this meeting.”
Mr Anning concluded as follows:
“I am of the opinion that Mr Sharma’s emotional stress is directly related to and prompted by disciplinary action taken against him by his employer. Mr Sharma alleges that disciplinary action has been used to bully and harass him. I believe that these claims cannot be substantiated. A viewing of the employer’s statements would indicate that this action was warranted…
There is evidence to suggest that Mr Sharma continues to be affected by the termination of his employment in February 2005. He reported that he has experienced marital difficulties, resulting in divorce, since that time. It is noted however that he commenced antidepressant medication for the first time in August this year thus suggesting that his present psychological status is directly contributed to by his current situation.
I am of the opinion that Mr Sharma’s current emotional distress is on a background of his being terminated in November 2005 and reinstated in January 2007. I would consider the issues arising from this to be industrial in nature.”
Included in Mr Anning’s report were statements from two other employees of the Hospital, Mr Veljovic, the security manager, and Daena Wilson, the acting Human Resources Manager.
Those two people were apparently interviewed by another clinical psychologist, Michael Kirton, on 27 August 2007. They were apparently provided with a “questionnaire” which was “discussed at interview.” Mr Veljovic said that he had known Mr Sharma for six years and that his work performance was “very good.” He was aware that there was a disciplinary procedure “currently in process” and noted that “Initially the injured party wanted to pursue the matter however after two or three days he completely changed his attitude and refused to give further information to [the Appellant].”He said that immediately after the disciplinary interview Mr Sharma telephoned and said that he was stressed and going on sick leave. When asked in the questionnaire:” What specific incident/issue do you believe led the injured worker to proceed on stress related leave?” he responded: “I have to presume that it was the disciplinary interview which brought on the stress leave. I must say that he did not appear to show any stress at the interview and he did not seem to be stressed when I saw him the day prior to the interview.”
Curiously, Mr Anning did not mention that Mr Veljovic was present at the disciplinary interview in his comments referred to in [41] above, and there is no evidence to suggest that Mr Veljovic was in fact present.
Ms Wilson in her statement also did not mention the presence of Mr Veljovic at the disciplinary interview. Ms Wilson first met Mr Sharma at the ‘fact finding interview’ held on 19 July 2007. She said that she was unable to make “…any valid comment about his work performance except to say that he was terminated in February 2005 due to serious misconduct. He was re-instated in January 2007 by the [IRC].”Ms Wilson said that she was also aware of current disciplinary matters involving Mr Sharma. She said that present at the disciplinary interview were herself, Mr Schembri, the acting general manager and a Ms Chris Wright, a support person for Mr Sharma who was not employed in the security department. She made the following comments:
“We advised Mr Sharma that…he was receiving a first warning and that this would go on his personnel file as a consequence of his unacceptable and unprofessional behaviour…
Mr Sharma’s personal reaction to this outcome was not good and he started raising his voice and insisted we were bullying and harassing him.
Mr Sharma signed [the summary of the fact finding interview on 19 July 2007] after making two amendments to the document which I agreed to. Mr Sharma stated in that signed summary that he did throw keys at the other officer…
In the disciplinary interview he accused me of getting him to sign the document on false pretences and did not agree that he had thrown anything…He said that he was not in a sound state of mind during the signing of the transcript of the interview because he was going through a divorce and he had received the divorce papers during that time. He mentioned this fact a number of times and looked upset and worn out…
In the disciplinary interview Mr Sharma mentioned the previous matter when he had been terminated from his employment and suggested that he had been bullied and harassed since he had returned to work and he implied that we were “up to something’ again. We strongly stated that this was not the case and that the disciplinary interview currently being held stood on it’s own in relation to his behaviour towards the other security officer.
At the interview Mr Sharma also inferred that because of the termination matter in 2005 his marriage had been ruined due to the stress associated with that matter.”
Ms Wilson said she also believed that it was the disciplinary interview which had caused “…the stress which Mr Sharma had experienced prior to his claim.”
Mr Anning interviewed Mr Sharma at this consultation and his “statement” is included in his report. It contains more details of the events occurring at work prior to June 2007. Mr Sharma told Mr Anning of his termination in 2005 following the allegations over the CCTV incident then said:
“Prior to these allegations being made, I experienced difficulties with the then security manager, Mr Trevor Thompson who I believe was giving me a difficult time because I was actively involved in the Union…Mr Thompson had threatened me on a number of occasions re disciplinary action.
At that time, Mr Thompson was treating Security Officers with an etnic background unfairly. I approached the Union on their behalf and was advised to lodge a claim with the Professional Practice Unit (PPU). In June 2004 I wrote a letter to the PPU that was signed by seven or eight Security Officers.
In October 2004 someone from the PPU came to Fairfield Hospital and we were told that Mr Thompson had done nothing wrong and that [we] were troublemakers and we required further training.
One to two weeks later I was informed that I had to come to a fact finding interview as I was working on the day that the CCTV had zoomed in on female body parts.
Following this, I attended several interviews in which they did not listen to my side of the story and on 11 February 2005 I was terminated on the grounds of misconduct.”
Mr Sharma then went on to describe in detail the events over the next two years in the IRC, his financial difficulties during this time, and the problems he experienced in obtaining the compensation awarded by the IRC. He also said that:
“In the meantime, a couple of security officers, Les and Marwan, were talking to people in the hospital saying that I was a pervert. I believe that both these officers gave false evidence that led to my termination.”
A signed summary of the ‘fact finding interview’ conducted on 19 July 2007 was included in Mr Sharma’s Application, but I thought it appropriate to refer to it at this juncture because of the statement of Ms Wilson referred to above. Relevant ‘facts’ reported therein include:
“• Sanjay stated that he picked up the key from switch, and then went to the security office. He saw Thomas [Pantelis] sitting inside at the computer. Sanjay asked Thomas:’What are you doing mate?’ Sanjay then said that that Thomas started swearing at him. Ealier in the shift, Thomas had been ok according to Sanjay as they had had a coffee break together. Sanjay then asked Thomasif he was ok and Thomas replied:’I’m writing a report, cant you see?’ Sanjay reported that Thomas kept swearing at him and asked him to go away.
• Sanjay stated that because Thomas was treating him so badly, he threw the keys on the table and walked out of the office.
• Sanjay reported that Ned Veljovic (Security Manager) rang him to see how he was. Sanjay reported that he told Nedthat he was angry and that Thomas had treated him badly.
• Sanjay advised that he and Thomas have had contact since this incident – on Sunday 30 June 2007. Sanjay maintains that Thomas told him that he had been joking at the time. Sanjay stated that that it did not seem like a joke at the time as Thomas’ face was red.
• Sanjay stated that Thomas told him to ‘fuck off’ four times. (The four was crossed out by hand and the numeral 3 added).
• Sanjay stated that the security department used to be helpful and work in a team manner. He has noticed that since returning to the workplace in late March 2007, the department does not work like a team and coordination between security staff is poor….he has brought this matter to Ned’s attention…
• Sanjay stated that he did not raise his voice at Thomas, but did acknowledge that he was angry and walked away so as to diffuse the situation. Sanjay maintains that he was polite to Thomas, spoke in a quiet voice and did not swear.
• Sanjay stated that he did throw the keys on the bench, they did not hit Thomas…
• Sanjay reported that his working relationship with Thomas is very, very good, and that Thomas is usually jovial, and normally a good person.
• Sanjay stated that he felt that the problem had been sorted out.
• Sanjay stated that neither of them had really [argued] previously and that they both usually get on well.”
The Appellant arranged for Mr Sharma to be examined by Dr Doron Sammuell, clinical psychiatrist, on 17 July 2008. In a report dated 30 July 2008, Dr Sammuell noted that he had available various documents, including the reports of Dr Lee and Mr Anning. Dr Samuell took a history generally consistent with the facts as stated by Mr Sharma in his statement. Dr Samuell noted that it was “irksome” to Mr Sharma to receive a warning in August 2007 for rudeness, when his co-worker did not have any adverse warnings. He noted that this made him upset and angry. Dr Samuell concluded:
“Mr Sharma is a security guard who works at Fairfield Hospital who says that he was psychologically injured due to mistreatment that he experienced in the workplace. I note that he had previously been dismissed and reinstated.
I also noted that Mr Sharma has had a significant relationship breakdown and he has been prescribed antidepressants by his GP.
Whilst I do understand that Mr Sharma was disaffected by the alleged misbehaviour of his co-worker, it appears strongly to be the case that the prominent emotional response that he has experienced followed him being disciplined by his employer. As such, in my opinion, his emotional difficulties fall within the meaning and spirit of section 11A of [the1987 Act].
I listened closely to Mr Sharma’s complaints and whilst my colleague, Dr Lee, in his extremely brief report…opined that Mr Sharma suffered from major depression, I did not share that view. In my opinion, Mr Sharma is not psychiatrically unwell. He is embittered, disgruntled and angry at his strong sense of injustice. This is perhaps why despite taking antidepressant medication what my colleague considers to be symptoms have remained unchanged.”
Also attached to the Appellant’s Reply was the investigation document referred to in [18] above which was ruled inadmissible by the Arbitrator and to which I will refer more fully below.
THE ARBITRATOR’S FINDINGS AND REASONS
After summarising the evidence of both parties, the Arbitrator then said at [38]:
“I accept, and it was not challenged that Mr Sharma had problems in the workplace going back to 2004 or 2005 when the allegations in respect to the CCTV incident occurred. I accept the history in respect to the IRC proceedings and Mr Sharma’s problems with respect to obtaining his back pay entitlements. I also accept that there may have been some pressure on him to resign rather than return to the hospital. Although there are different versions of the incident on 24 June 2007 and the resulting disciplinary process I accept as do the medical specialists that an incident occurred with Mr Pantelis and that there was an investigation into the incident by the Respondent. The question is did these incidents constitute bullying and harassment leading to a psychological or psychiatric injury?”
The Arbitrator then considered a number of authorities dealing with the matters required to establish ‘injury’ in such cases, in particular, Department of Corrective Services v Bowditch [2007] NSWWCCPD 244 (‘Bowditch’). She then said:
“41. The Respondent submitted that there was no evidence of bullying and harassment. It was not until the incident with Mr Pantelis that Mr Sharma visited his doctor [and] complained of stress and headaches. There were no complaints between March and June 2007 following his return to work.
42. It appears on the material I can decipher from Dr Shah’s clinical notes that Mr Sharma did not complain to his GP specifically about bullying and harassment until 26 June 2007. Although there are some references to some stressful incidents at work in 2006 it does not appear to be with Fairfield Hospital as Mr Sharma appears to have won his case in the IRC in 2006 but did not recommence work until 2007.
43. However the events which Mr Sharma complains of which he alleges have led to his injury are not disputed. In my view there is no misperception of actual events, rather there is a lack of complaint of symptoms over the period when the injury is alleged to have developed. In my view it is entirely understandable that Mr Sharma would perceive his experiences with the Respondent going back to 2004 as bullying and harassment. The incident and subsequent events surrounding the Pantelis incident can also be categorised as bullying and harassment in my view. It is unchallenged that Mr Sharma and Mr Pantelis had a dispute and that Mr Pantelis withdrew his complaint. However it appears that the Hospital was of the opinion that there needed to be an investigation into the incident notwithstanding that the parties patched up their differences. I can accept that Mr Sharma would have perceived the attitude of the Hospital as bullying and harassment, particularly given the history of the dismissal and reinstatement.
44. Whilst I am satisfied that the events surrounding Mr Sharma’s dismissal, reinstatement and battle to obtain his proper entitlement’s can be seen as bullying and harassment I am not satisfied that there is evidence to support Mr Sharma’s complaints that hospital staff were spreading rumours about him and complaining that he was going through files. He made no such complaints to any of the medical experts who saw him and without any other corroboration, I am not satisfied that there is evidence to support those complaints as contributing to his condition.
45. The fact that Mr Sharma did not complain to his treating GP about his mental state between 2004 and 2007 is not fatal to his claim. I accept on the evidence before me that Mr Sharma did not require medical treatment for his work related stress and depression until after the incident with Mr Pantelis. He was commenced on antidepressants and referred to a psychiatrist. It is not unusual in psychological injury cases for there to be a particular incident which triggers the symptoms which then require treatment. In Mr Sharma’s case, it appears that that incident was the Pantelis argument and subsequent events including the fact finding investigation and disciplinary interview.
46. In my view the most persuasive medical evidence is that of the treating GP, Dr Shah. Dr Shah had the opportunity of treating Mr Sharma only two days after the precipitating event on 24 June 2007 with Mr Pantelis. On that date he records his complaints of headaches, stress and not feeling well. On 7/8/07 he presented feeling depressed, crying and helpless and commenced taking antidepressants. On 13 August 2007 Dr Shah issued Mr Sharma with a Workcover Medical Certificate diagnosing depression and anxiety. In his handwritten response to the insurer to assist them in managing the claim Dr Shah records his opinion that the cause of Mr Sharma’s current condition is ‘As a result of cumulative events’. In response to a question about whether he considers employment to be the most significant contributing factor, Dr Shah responds, ’Yes – due to harassment bullying at work as per patient history.’ This response is dated 17 August 2007. The history that Dr Shah takes on 26/6/07 is that his problem at work started in 2004 and includes the unfair termination in 2005 and the court case which he won regaining his job and all his entitlements.”
The Arbitrator then noted that Dr Lee also accepted that Mr Sharma had major depression. She accepted that his report, on the face of it, did not satisfy the test for expert opinion set out in Makita, but went on to add at [47] that:
“…the PIRS scale attached to the report does provide a basis for his diagnosis. Dr Lee lists the six categories and provides a reason for each class of category that he has placed Mr Sharma into. The history provided in the main body of the report is therefore supported by reasons that formed a basis for his diagnosis…”
The Arbitrator rejected the opinion of Dr Samuell principally on the basis that it’s focus was on the incident in June 2007, and made only passing reference to the events over the three years leading up to that incident.
She noted that, notwithstanding his reservations as to whether Mr Sharma was in fact suffering from a psychological condition, Mr Anning accepted that there was evidence to suggest that Mr Sharma continued to be affected by the termination of his employment in February 2005. As the Arbitrator pointed out, the fact that Mr Anning could not provide a diagnosis did not mean that Mr Sharma did not have a psychological injury, only that in Mr Anning’s opinion he was exaggerating his condition.
The Arbitrator concluded:
“50. In my view the diagnosis of Dr Shah and Dr Lee should be preferred. Mr Sharma’s GP is in the best position to assess his ongoing psychological condition as he has seen him on a regular basis and has provided contemporaneous support for his mental state which I see no reason not to accept. That diagnosis is confirmed by Dr Lee and I am satisfied on the evidence before me that ‘ the nervous system was so affected that a physiological effect was induced, not a mere emotional impulse.’
…
52. For the reasons above, I find that Mr Sharma has suffered a psychological injury arising out of the nature and conditions of his employment with the Respondent from 2004 to 6 August 2007.”
The Arbitrator then turned to consider the impact of sections 9A and 11A. She concluded that employment was a substantial contributing factor to the injury and rejected the argument that Mr Sharma’s injury was wholly or predominantly caused by the disciplinary action taken by the employer, notwithstanding “the strong temporal connection” between the disciplinary interview and the development of the injury. She then considered the issue of incapacity and weekly benefits. This issue is not the subject of appeal, and I do not propose to comment on it further.
THE SUBMISSIONS AND DISCUSSION
The Investigation Report
The Appellant submits that the Arbitrator erred and denied it procedural fairness in refusing to admit the document titled “Confidential Investigation – Incident Between 2 Security Officers – Sanjay Sharma and Thomas Pantelis, occurring 24 June 2007.”
The Arbitrator determined that the report fell within the types of reports set out in Clause 37 of the Workers Compensation Regulations 2003 (‘the 2003 Regulations’), and held that it was inadmissible by reason of section 73 of the 1998 Act.
Clause 37 provides as follows:
“(1) This clause applies to the following types of reports that an employer or insurer has in the employer’s or insurer’s possession
(a)medical reports, including medical reports provided pursuant to section 119 of the 1998 Act (Medical examination of workers at direction of employer),
(b)medical certificates,
(c)clinical notes,
(d)investigators’ reports,
(e)occupational rehabilitation providers’ reports,
(f)health service providers’ reports,
(g)reports of assessments under section 40A (Assessment of incapacitated worker’s ability to earn) of the 1987 Act,
(h)reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made,
(i)wage details required to be supplied under section 43 (2) of the 1987 Act where a decision has been made to decline payment of, or reduce the amount of, weekly benefits, but only if such details have not already been supplied to the worker”
Clauses 37(3) and (4) provide:
“(3) If an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under section 74 of the 1998 Act, section 54 of the 1987 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 15 (1) (c) or 34 (1) (d).
(4) The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision”
Section 73 of the 1998 Act provides as follows:
“(1) The regulations may make provision for or with respect to requiring an insurer to provide a worker, a worker’s legal representative or any other person with a copy of a specified report, or a report of a specified kind, obtained by the insurer in relation to a claim by the worker.
(2) Without limiting subsection (1), the kind of reports to which the regulations under this section can apply include investigators’ reports, rehabilitation providers’ reports and reports of assessments under section 40A…
(3) If an insurer fails to provide a copy of a report as required by the regulations under this section:
(a)the insurer cannot use the report to dispute liability to pay or continue to pay compensation…and cannot use the report for any other purpose prescribed by the regulations for the purposes of this section, and
(b)the report is not admissible in proceedings on such a dispute before the Commission, and
(c)the report may not be disclosed to an approved medical specialist or an Appeal Panel…”
The effect of these provisions was considered recently by his Honour Judge Keating in Beale v Walgett DistrictHospital & Anor [2009] NSWWCCPD 60 but in that case, the dispute arose as to the service of a medical report. In considering the obligations imposed by section 73 and clause 37 of the 2003 Regulation, his Honour said at [41]:
“The Regulation expressly applies to reports obtained under section 119 of the 1998 Act, and makes the provision of those reports to injured workers a mandatory requirement on employers or insurers, to provide a copy of any relevant report to which the clause applies (clause 37(3)) and the obligation extends to the provision of reports relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reason for the decision (clause 37(4)). This is subject only to the exception in clause 37(5) (where the provision of a report would pose a serious threat to the life or health of the worker or another person).” (emphasis added)
These provisions were also discussed by Deputy President Fleming in Chown v TonyMadden Refrigeration Transport Ltd [2005] NSWWCCPD 159. This decision of course predates the amendments made on 1 November 2006, and again related to provision of medical reports, but her comments are timely. She said at [17]:
“There is no doubt that a purposive approach to statutory interpretation is the correct way to consider the relevant provisions. However, in my view section 73 of the 1998 Act and clause 37 of the Regulation are unambiguous in their language and the serious consequence of non-compliance is exactly what those provisions intended. They have a broader, underlying purpose, not referred to by the Arbitrator, but consistent with the objectives of the Workers Compensation Acts, namely to ensure a timely, effective and transparent determination of a workers entitlement to compensation as a result of a work injury. Where a worker is not informed of the basis of a decision to deny compensation, the obvious questions of whether to accept or appeal that decision, and how and when to return to prior employment may remain unresolved. The consequence of non-compliance with section 73 and clause 37 is that the reports of Dr Van Der Rijt and Dr Mills are not admissible in the proceedings before the Arbitrator. The Arbitrator has no discretion to avoid the consequence of these provisions. Section 74 of the 1998 Act provides that insurers are to give notice and reasons when liability is disputed. Relevantly, section 74(2)(e) provides that the notice must contain “such other information as the regulations may prescribe…”
The Appellant submits that the Arbitrator erred in rejecting the report as an “investigator’s report.” This point was raised by Counsel for the Appellant at the hearing [T10]. In the Appellant’s submission, the report was more properly categorised as a factual investigation into the incident involving Mr Sharma and Mr Pantelis.
I accept this submission to an extent, however, that is not an end to the matter. The term ‘investigator’ is not defined in the Act such that it may be possible to categorise the report as an “investigators’ report” under Clause 37(1)(d). But even if I am wrong in that approach, the report in my view certainly falls within the category of reports referred to in Clause 37(1)(h), as opposed to 37(1)(d). It certainly contained information “relevant to the claim on which the decision to dispute liability is made.”
The Appellant submits that the words ‘obtained by an insurer’ must refer to the purpose for which the report was brought into existence, and further, the report must be brought into existence ‘in relation to a claim.’ In other words, the claim must have been made at the time the report was brought into existence.
In my view, this is a too restrictive an interpretation of the terms of section 73. To read it otherwise would be inconsistent with the purpose of the 1998 Act and, more particularly, the terms of clause 37 of the 2003 Regulations.
Consistent with the views expressed by his Honour Judge Keating and Deputy President Fleming, I regard the terms of section 73 and clause 37 as mandatory requirements. Regardless of either the categorisation of the report or its origin, if it is relevant to any aspect of the claim, it must be provided to the worker.
In the present case, the section 74 Notice stated that one of the reasons for declining liability was because the alleged injury arose as a consequence of reasonable action taken by the employer in relation to discipline. The document was clearly relevant to this issue.
At the hearing before the Arbitrator, Counsel for the Appellant sought to have the document admitted on the basis that section 354 of the 1998 Act allowed a broad discretion to admit material to enable the Commission to inform itself on any matter [T7]. This again is an inappropriate interpretation of the terms of that section. It is well established that rules of procedural fairness must apply in order to do justice between the parties. ( See Inghams Enterprises Pty Ltd v Zarb [2003] NSWWCCPD 15 and Round the Clock Transport ServicesPty Ltd v Flynn [2007] NSWWCCPD 204).
Counsel for the Appellant also submitted that the document was not available at the time the section 74 Notice was served. Since it was dated 30 July 2007, this seems rather unlikely.
The Arbitrator ultimately determined that, given the terms of Section 73 and Clause 37, she had no discretion to admit the document. For the reasons stated, I agree with her conclusion.
Even if I am wrong, the document is of limited evidentiary value in any event. It confirms that an incident took place involving Mr Sharma and Mr Pantelis. It was prepared by two people and contained the results of “fact finding interviews” with six people, including Mr Sharma and Mr Pantelis. It concluded:
“It was substantiated that there was a verbal disagreement/altercation between Sanjay Sharma and Thomas Pantelis on 24 June 2007…
It was also substantiated from the fact finding process that Sanjay Sharma threw the keys in an aggressive manner and spoke with a raised voice on 24 June 2007. It could not however be substantiated whether the keys were thrown at Thomas Pantelis or at the desk in the office where Thomas was sitting attending to a report on the computer.”
Although it did not add a great deal to the evidence before the Arbitrator as to this event, Mr Sharma’s evidence differs somewhat from the conclusions made in that report, and it should have been given to him. Having said that, the document in any event was flawed. Significant parts had been ‘blacked out’, in particular, the results of the interviews with two people, Craig Lawson and Marwan Salah. At the hearing, Counsel for the Appellant cited privacy reasons for the omission of this material. While there may be merit in that submission, it would nonetheless be improper to admit the report in its expurgated form. As Mr Sharma submits:
“To receive the report into evidence in its expurgated form would have involved the unsubstantiated assumption that the material deleted by the Employer was not relevant to the issue of reasonableness within section 11A. Further, to accept the report in its expurgated form into evidence could have denied the Worker procedural fairness in that he could, depending upon what the deleted material was, have made forensic use of it.”
Ultimately, it was not necessary for the Arbitrator to rule on this point since the document was rejected for the reasons stated. However, if it were necessary, I would reject the document in its expurgated form.
Finally, the Appellant submits that the Arbitrator failed to give any adequate reasons for rejecting the report. I reject this submission. Detailed reasons for her decision are contained at [T 8-12]. I am also not persuaded that “The refusal of the Arbitrator to admit the report in the proceedings was a denial of natural justice which prejudiced the Respondent’s defence of the proceedings” given the legislative requirements to which I have referred.
The ‘Injury’ Issue
The Appellant submits that the Arbitrator’s finding that Mr Sharma suffered an injury as a result of the nature and conditions of his employment between 2004 and August 2007 as opposed to arising out of the disciplinary process subsequent to the incident on 24 June 2007 was incorrect, and against the weight of the evidence.
Reference is made to the notes of Dr Shah which disclose prior symptoms of “headache, stress, depression, insomnia, nervousness…” in 2006.The Arbitrator summarised this material at [32] of her Reasons. The notes I regard as almost impossible to decipher. The Arbitrator said, for example, that there was a reference on 24 May 2006 to “…wrong allegation by boss City Rail, Stressed Nervous.” I have scrutinised the notes carefully, and have been unable to locate this reference. The Appellant submits that: ”The notes of Dr Shar (sic) erroneously refer to an allegation made by management at City Rail, which led to the Applicant complaining generally of insomnia, nervousness, anxiety and depression.” I do not know what is meant by “erroneous.”
The notes are made more difficult to decipher because many of the dates are unintelligible, and do not appear to be in chronological order. The only thing that seems clear is that there are references to the symptoms I have noted in the preceding paragraph in 2006. But there are also references at that time to “…how to resolve the problems at work…” Mr Sharma was off work in 2006 and pursuing his claim in the IRC.
The notes are really rather unhelpful, but I do not believe that they support the Appellant’s submission that, given this background of symptoms, employment did not contribute to his condition.
The Appellant submits: “That the parties were involved in unrelated litigation before another jurisdiction at that time is not evidence that the worker sustained a psychiatric injury arising out of the nature and conditions of his employment, to which his employment was a substantial contributing factor.” I disagree. There was clear evidence (particularly from Mr Anning) that the events occurring particularly following his wrongful dismissal in 2005 caused Mr Sharma significant distress and concern. The Appellant’s submissions are predicated on its assertion that Mr Sharma’s condition resulted from the disciplinary process subsequent to the incident with Mr Pantelis on 24 June 2007, and ignore these events.
Many of the Appellant’s submissions on this issue focus on the absence of any complaints made by Mr Sharma following his re-instatement in March 2007, both as to symptoms and to incidences of bullying or harassment. I accept, as did the Arbitrator, that there were no complaints made to Dr Shah between March and June 2007. But like the Arbitrator, I also accept that this is not fatal to Mr Sharma’s claim. There were certainly complaints in 2006 during the time of the IRC proceedings but it is not clear if complaints made at that time relate to that. In cases such as this, it does not follow that the absence of treatment means that there were no symptoms. In my view, the Arbitrator correctly concluded that it was the incident with Mr Pantelis that was “the trigger” for the need for treatment.
As to the absence of any complaints about bullying or harassment, the Arbitrator dealt with this submission at [43] of her Reasons. Her conclusion that: “In my view it is entirely understandable that Mr Sharma would perceive his experiences with the Respondent going back to 2004 as bullying and harassment” was appropriate, and consistent with the evidence.
The Appellant’s submission that: ”The worker did not admit to any of his doctors that he had thrown keys at a co-worker, which was the act which triggered the disciplinary interview process” is not only factually incorrect but completely unhelpful on the issue under review.
The same must be said of the submission that because Mr Sharma did not take time off work prior to the disciplinary interview, nor take antidepressant medication until that time, he did not suffer an injury.
The Appellant also submits that Mr Sharma’s marital difficulties following his termination in 2005 are indicative of factors “extraneous to the work environment and the incidents of July/August 2007” which contributed to his condition. I do not accept this submission. A proper analysis of the evidence shows that Mr Sharma’s marital problems were a direct consequence of allegations made in 2004 leading to his wrongful dismissal in 2005.
The Appellant submits that “…on the proper reading of sections 4 and 16 of the Act, what occurred was that the Appellant (sic) was aggrieved by the disciplinary process and interview, which process led to an aggravation of his psychological condition and ultimate cessation of work.” There was no evidence that Mr Sharma suffered from a disease process, nor that the events at work precipitated an aggravation of an underlying psychiatric condition. This may well be the Appellant’s own interpretation of events, but it is not supported by the evidence.
Having carefully reviewed the evidence, I am satisfied that the Arbitrator was correct in concluding that Mr Sharma suffered a psychological injury resulting from the nature and conditions of his employment from 2004 to August 2007. She carefully considered the test enunciated by Judge Neilson in Stewart v NSW Police Service [1998] NSWCC 37 referred to by Deputy President Roche in Department of Corrective Services v Bowditch [2007] NSWWCCPD 244 relating to proof of a psychological injury as opposed to an emotional response or mere anxiety state. At [43] she excluded the possibility that Mr Sharma was acting upon a misperception of events (Townsend v Commissioner of Police (1992) 25 NSWCCR 9). As Deputy President Roche said in South Eastern Sydney and Illawarra Area Health Service v Nikolis [2009] NSWWCCPD74 at [119]:
“The decision of Yeo must now be read in the light of Chemler. In Yeo, the trial judge held that “a misperception by a worker of otherwise innocuous matter, which misperception leads a worker to develop a psychiatric condition, does not constitute injury arising out of or in the course of employment.” Spigelman CJ observed that that statement stated the principle in Townsend too broadly and (at [54]) that:
‘As McGrath CJ Comp Ct indicated, as quoted above, a ‘perception of real events’, which are not ‘external events’, can satisfy the test of injury ‘arising out of or in the course of employment’.’
Similar issues were considered by Deputy President Roche in Callingham v Tophos Pty Ltd t/as Central Coast Easy Care [2008] NSWWCCPD 140 where he said at [77]-[78]:
“77. Basten JA noted (at [69] of Chemler):
‘If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it was open to the Commission to conclude that causation was established. Accordingly, no error in point of law was identified by this ground.’
78. A worker’s perception of an event will naturally involve his or her subjective assessment of the particular event. A worker’s perception of real events, which are not external, can satisfy the test of causation in a claim for compensation under the 1987 Act. In the present matter, the critical events that caused Ms Callingham’s injury (see [58] to [62] above) were real events that happened at work during working hours over work issues. Whilst to characterise those events as “harassment, bullying and victimisation” was, arguably, not necessarily accurate, the use of that terminology was of no consequence, as the employer was not misled as to the nature of the case it had to meet. Those work events caused Ms Callingham’s psychological injury…”
The events complained of by Mr Sharma were real, and not external. Even if the Arbitrator’s characterisation of those events as ‘bullying and harassment’ was similarly arguably not accurate, it was immaterial since the Hospital was well aware of the allegations made by Mr Sharma commencing in 2004.
I am satisfied on all the evidence that the Arbitrator’s findings on ‘injury’ were correct.
The Medical Evidence Issue
The Appellant submits that the Arbitrator was wrong to accept the opinion of Dr Lee in preference to Mr Anning and Dr Samuell. The main criticism of his report seems to be that he did not have “…any corroborative information.” That fact of itself does not invalidate the report, but does impact upon its weight. The Arbitrator quite properly identified its flaws at [47]. The Arbitrator said that the “most persuasive medical evidence” was that of Dr Shah, and that his opinion was supported by that of Dr Lee. The Arbitrator carefully analysed all the medical evidence at [33]-[37] and again at [46] –[49]. I agree with her conclusion that support for Mr Sharma’s claim was given by Mr Anning to the extent that he said: “There is evidence to suggest that Mr Sharma continues to be affected by the termination of his employment in February 2005.”
The Appellant’s submission that “Any contribution allegedly made by the dismissal and reinstatement is immaterial…as the plain fact is that the worker continued employment until the time of the disciplinary process” is plainly wrong, and completely ignores the nature of the claim made by Mr Sharma, that is, that the nature and conditions of employment from 2004 caused his condition. It also flies in the face of Mr Anning’s observations.
The Appellant reiterates the assertion that Mr Sharma did not tell Dr Lee that he had thrown keys at Mr Pantelis and that in those circumstances, Dr Lee’s opinion “…is internally flawed and ought not be accepted.”
I reject this submission for the reasons previously stated.
The Arbitrator was entitled to accept the opinion of Dr Lee given that it was consistent with the opinion of Dr Shah, the notes of Dr Sharah and to some extent with that of Mr Anning. Her analysis of the medical evidence was sound, and her reasons clearly explained. In the absence of any reasons put forward by the Appellant as to why the reports of Dr Samuell and Mr Anning should be accepted, I am satisfied that her decision was correct.
The Section 11A Issue
Having accepted the Arbitrator’s findings that Mr Sharma’s injury was wholly or predominantly caused by the nature and conditions of his employment with the Appellant, it is not necessary to consider the Section 11A defence, but some observations on the Appellant’s submissions are appropriate.
The Appellant submits that: “…the only finding that can be made from the whole of the evidence is that the worker’s present psychological condition was predominantly caused by the reasonable action taken by the employer in relation to the disciplinary interview.”
Section 11A(1) provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The onus of establishing a section 11A defence is on the employer (Ritchie v Department of Community Services [1998] NSWCC 40; (1998) 16 NSWCCR 727; Department of Education and Training v Sinclair (2005) 4 DDCR 206; [2005] NSWCA 465 (‘Sinclair’)).
In a claim for compensation for psychological injury, the Commission has to decide two questions: firstly, whether the whole or predominant cause of the psychological injury was the employer’s action or proposed action with respect to, in this case, discipline, and secondly, if so, whether the action or proposed action with respect to the disciplinary procedure was reasonable (see Manly Pacific International Hotel Pty Limited v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 at [4]).
The Arbitrator concluded at [59]:
“I have already accepted that Mr Sharma’s injury was caused by the nature and conditions of his employment with the Respondent from 2004 to 2007 and that it was predominantly caused by bullying and harassment. I accept that there is a strong temporal relationship between the incident with Mr Pantelis, the subsequent fact finding interview, the disciplinary interview and the development of Mr Sharma’s psychological injury. However, for the reasons already discussed above under injury I have accepted that his psychological condition is caused by the nature and conditions of his employment with the Respondent and I do not accept that his psychological injury was wholly or predominantly caused [by] the disciplinary action of the Respondent. Rather, I accept that the incident with Mr Pantelis and the subsequent action by the employer triggered his psychological condition which was caused by the cumulative effect of bullying and harassment from 2004 to 2007.”
The test of reasonableness is objective. As Geraghty J said in Irwin v Director General of Education NSWCC 14068/97 (unreported):
“The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the objective of employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
And as Basten JA said in Jeffery v Lintipal Pty Ltd [2008] NSWCA 138:
“In my view, if, in the view of the Commission, the action taken by the employer in transferring an employee is not reasonable in all the circumstances, the employer cannot rely upon s11A because it held a genuine belief, based on reasonable grounds, that its action was reasonable.”
In the present case, the Appellant’s submissions focus on its own perception of ‘reasonableness’. That belief is no doubt genuine, but the comments made are either inaccurate or without any evidentiary basis. For example, the Appellant submits that:
“The fact that Mr Pantelis withdrew his complaint is immaterial to the question of whether or not the employer’s actions were reasonable… “
On the contrary, I regard that fact as crucial in assessing the ‘reasonableness’ of the subsequent actions taken by the Hospital. The Appellant goes further and submits:
“In this case, the Appellant had little option other than to fully and comprehensively investigate the claims made both by Mr Pantelis and the worker. A complaint was made of criminal conduct (the throwing of the keys constituting the criminal offence of common assault), and regardless of whether the complaint was withdrawn, the Appellant employer was duty bound to investigate the allegation so as to ensure that it discharged its non-delegable duty of care to all employees.”
This submission is nonsense, and completely ignores the Appellant’s own evidence that the investigation into the ‘keys’ incident was inconclusive. There was simply no evidence that an “assault” of a criminal nature was committed.
The same must be said of the submission that: “There is no way that the employer could or ought to have been aware of the circumstances leading up to the withdrawal of the complaint by Pantelis.” Mr Sharma clearly said that he informed Ms Wilson of this fact. This evidence was not contradicted.
The Appellant submits that “the catalyst was the disciplinary interview.” This was not disputed by the Arbitrator. This is followed by the submission that:
“Simple logic would then dictate that at least a predominant cause of the worker’s condition was the interview process, which, having regard to the serious allegations of assault being investigated, would lead to the conclusion that the employer’s actions were reasonable in all of the circumstances.”
I accept that the disciplinary interview played some part in the development of Mr Sharma’s condition, but it was not the predominant cause. Given the background of events from 2004, in my view, it was inevitable that the Hospital’s actions consequent upon what appears to be have been a minor flare up in an otherwise sound relationship between Mr Sharma and Mr Pantelis, were bound to have significant psychological consequences for Mr Sharma.
Were it necessary, I would conclude that the action taken by the Hospital with respect to discipline was not reasonable in the circumstances of this particular case.
CONCLUSION
Having conducted a review on the merits (per Spigelman CJ in Chemler at [28]), I have concluded that the Arbitrator’s decision is correct and I agree with her conclusions. Her reasons were thorough and well considered, and I can see no basis upon which to disturb her findings.
DECISION
The decision of the Arbitrator dated 6 March 2009 is confirmed
COSTS
The Appellant is to pay the Respondent’s costs of the appeal.
Deborah Moore
Acting Deputy President
4 August 2009
I, MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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