Symons v Jaybro Group Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Symons v Jaybro Group Pty Ltd [2024] NSWPIC 34
APPLICANT:	Lavinia Symons
RESPONDENT:	Jaybro Group
MEMBER:	Diana Benk
DATE OF DECISION:	29 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; claim for weekly compensation; causation; whether injury the result of discipline and/or retrenchment; section 11A; Held – the respondent has not satisfied its onus; the definition of discipline in Kushwaha v Queanbeyan City Council also not relevant in the circumstances of this case; the evidence on balance discloses the applicant remains totally incapacitated for employment; respondent ordered to pay the applicant weekly compensation pursuant to section 37.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a psychological injury in the course of her employment with the respondent with a deemed date of injury of 6 September 2022. 2. The injury referred to [1] above, was not caused by the reasonable actions of the respondent with regards to discipline or retrenchment. 3. As at the date of injury, the applicant’s pre-injury average weekly earnings (PIAWE) were $1,600 per week. 4. As a result of the injury referred to in [1] above, the applicant has and continues to be totally incapacitated for employment from 14 June 2023. 5. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act 1987 from 14 June 2023 to date and continuing.

STATEMENT OF REASONS

BACKGROUND

Lavinia Symons (the applicant) was employed as a senior accounts payable officer between March 2017 until October 2022 with the Jaybro Group (the respondent). She claims a work related psychological injury resulting in total incapacity. The respondent accepts that the applicant has sustained an injury, does not dispute pre-injury average weekly earnings (PIAWE) but maintains employment was not the main contributing factor to the psychological condition, and that if it was, the injury resulted wholly or predominantly by the respondent’s reasonable actions with respect to discipline and/or retrenchment, thereby denying liability. By way of these proceedings, the applicant seeks the payment of weekly compensation from 14 June 2023 to date pursuant to s 37 of the Workers Compensation Act 1987 (the 1987 Act) along with treatment expenses (s 60 of the 1987 Act).
The matter underwent the usual case management pathway eventuating in arbitration after conciliation impasse. The applicant was represented by Mr Hickey of counsel instructed by Ms Panju. The respondent was represented by Mr Adhikary of counsel instructed by
Mr Stringer. The applicant and an insurer representative were also present.
Prior to arbitration, following an objection raised by the applicant, the respondent withdrew its reliance of a statement made by Caroline Tenoria dated 23 February 2023. No oral evidence was given. The evidence in this matter was limited to;
(a)    Application to Resolve the Dispute (ARD) and attached documents;
(b)    Reply and attached documents, and
(c)    the balance of the respondent’s Application to Admit Late Documents (AALD) dated 8 December 2023.

ISSUES FOR DETERMINATION

Essentially, the following issues remain in dispute:
(a) whether the applicant’s employment with the respondent was the main contributing factor to her injury, and
(b) if so, whether the injury was wholly or predominantly caused by the respondent’s reasonable actions with respect to discipline and or retrenchment.

EVIDENCE

Applicant’s statement[1]

[1] Folio 2 ARD.

Much history is given and it is noteworthy that there were multiple stressors which varied prior to 2022 but which increased following new management in around March - May 2022.
The applicant confirms she commenced employment in 2017, was proficient in her role as a senior accounts payable officer where her job description[2] required her to supervise two team members and induct new staff in the accounts payable team, despite not being formally trained or guided in doing so. She reported a high workload between March 2020 and
[2] Folio 56 Reply.
August 2020 which was to be relieved by the commencement of a new hire, James, who unfortunately the applicant had to terminate in January 2021, before the expiry of his probationary period which caused her significant distress. James was not the right fit, had poor attention to detail, made significant financial mistakes and had poor time management resulting in an increased workload for the applicant. Despite this, in September 2021 she was awarded the Most Valued Employee in the Finance Division.
A new chief financial officer was appointed in March 2022, Renee Van Vugt followed shortly thereafter by a new accounts payable and master data manager, Pamela Ahumada on
11 May 2022. Ms Ahumada had discussions with the applicant about her ‘communication style’ on 26 July 2022 and potential changes to the workplace at which point the applicant felt she was being ‘pushed out’ and enquired about redundancy. It was at this point that the applicant noticed that staff started to treat her differently and very rarely was she approached, whereas previously there had been regular communication. She felt that there was a change in her duties which were not made official. She was somewhat ‘encouraged’ to work from home on a full-time basis when other staff were required to come into the office on at least two days. In the interim, the workload had increased with the applicant being required to manage three inboxes all with time sensitive activities.

Medical evidence

Dr Dave 6 September 2022

With regards to injury, Dr Dave, general practitioner reported (unedited);
“Lavinia was accompanied by her husband today she works as a senior AP officer in a company called Jay Bro group she has been in this company for five years earlier this year it was taken over by a new management. Since May this year there has been unacceptable behaviour towards her from the management she was singled out by the manager and told she was aggressive. She was also told not to talk loudly on the phone. She was given unacceptable work deadlines and tasks to do.She was left out of conversations and made to feel isolated and alone her stress and anxiety at the workplace has been caused by the behaviour of the management towards her and it is bullying and harassment that she has endured Lavinia has been advised to do the following 1. she will need time off away from the toxic workplace 2. Mental health care plan completed for the patient to see psychologist mariel gadea 3. mindfulness strategies including exercise and relaxation techniques 4. started on sertraline 50 mgs daily 5. sleep hygiene 6. follow up with GP in one week”[3]

Mariel Gadea, psychologist[4]

[3] Folio 83 ARD.

[4] Folio 54 to 78.

Ms Gadea in a comprehensive report dated 8 August 2023, nominates a number of stressors including recruiting trainees, training, excessive workloads, reaching out to colleagues, seeking training on how to do training, approaching HR, and emphasises that the training and subsequent termination of James had a significant impact on the applicant’s mental health. She reported the applicant felt ignored, overlooked for promotion and marginalised. She had to give up her workstation to make room for other staff and she was specifically told that she could not train new staff, resulting in a moving of the goal posts regarding her base line job description which did not instil confidence that she had a place in any pending restructure. There is a record of increasing workloads during the COVID-19 pandemic.

Dr Nagesh, consultant psychiatrist

In a detailed report dated 16 February 2023, it was recorded (unedited):
“Your client’s depressive and anxiety symptoms stem from the increased workload, bullying, harassment, being excluded, verbally abused, and being targeted by her employer which have led to the alleged psychological conditions. Since I could not identify any other contributing factors, which have given rise to the injury, your client’s employment has contributed to the development of her alleged symptoms, and hence, I believe there is a real and substantial connection between your client’s employment and the alleged psychological injuries she is suffering from.[5]
In my opinion, your client remains symptomatic and has no capacity for any sort of work, and hence, she is totally incapacitated from work.”

Dr Zarrar Chowdary, consultant psychiatrist[6]

[5] Folio 47 ARD.

[6] Folio 111 Reply.

Qualified by the respondent, this specialist concluded on 4 January 2023 (unedited):

“From her perspective, with the new management starting, there has been a change in attitude, and she alleges that there have been belittling and humiliating comments targeted at her, and that they picked on her for little things where nobody has ever directly made any complaint against her except the new manager and the CFO have been very critical of her. She did reach a point where she believed that she would no longer be working for this organisation, and once her request for redundancy was approved, she took that option. She felt that there was more increased workload at the end rather than a clear handover process. She was given more tasks to complete, which also contributed towards her anxiety and restlessness. I do make a note and record employer perspective that gives a rather different picture. On balance, I believe that she has developed an Adjustment Disorder with Anxiety and Depression with Panic Attacks, and currently, she has no capacity for employment’
On the balance of probabilities, the factual investigation report gives a very different picture to what the person is telling, and on the balance of probabilities, there is an alleged sense of being bullied and harassed with an increased workload working through COVID and carrying that extra burden during that time and feeling a sense of being overwhelmed, and from her perspective, there has been a polarised view from being the valued member, someone who was also given a 7% pay rise and with the new management starting, she felt being humiliated, targeted, and belittled, leading to sense of powerlessness over her role and feeling very overwhelmed and anxious. On balance, work appears to be the significant contributing factor to the Adjustment Disorder with Anxiety. Work and the stress originating from the work appears to be the whole cause for the Adjustment Disorder with Anxiety and Depression.
One needs to take in the overall global context. As I have mentioned in the overall conclusions, as there has been a period of increased workload during COVID, another situation where she had to take the lead on terminating employment while she did not carry a management role in the organisation. She felt quite pressured at that time. Later on, she was appreciated and acknowledged for being a valued member, and she got a pay rise. From her perspective, with the new management starting, she felt quite belittled and humiliated by some of the comments made to her. I do note there are polarised views and based on her alleged sense of bullying and harassment, stress originating from the employment is materially contributing towards her Adjustment Disorder with Anxiety and Depression.”

In his report on 8 December 2023:[7]
“She mentioned with the new management taking over, there had been a change, and she alleges being bullied and harassed, a sense of being micromanaged all the time, and she was afraid that she was going to get the sack anytime. She felt powerless in her role. It was around the time that she initiated the discussion around a redundancy, and she was quite shocked when they put some difficult conditions that added to her symptom burden. Around September, she felt that she just could not carry on as emotionally she just broke down. When I saw her the first time, I gave her a diagnosis of Adjustment Disorder with Anxiety and Depression along with panic attacks, and she did not have any capacity for employment. Now seeing her for the second time after a gap of a year, it is appropriate to reclassify her condition as Major Depressive Disorder with Anxious Distress. Overall, I maintain the view that this lady does not have any capacity for employment.”
[7] AALD Folio 20.

Witness statements

Pamela Ahumada[8]

[8] Folio 1 Reply.

There are multiple statements which deny workplace bullying, allegations of overwork and a lack of complaints generally made by the applicant.
In the initial statement dated 10 October 2022, Ms Ahumada recorded she was receiving feedback from other staff members as to the applicant’s communication style; (however staff and specific instances are not recorded).
On 26 July 2022, she felt she needed to address the communication style with the applicant in a ‘chat’ where the applicant admitted that she was passive/aggressive with a team member the day before, “she told me she was tired and frustrated and didn’t want to answer questions pit [sic] to her by the team”. [9]
[9] Paragraph 17 of the statement – folio 2 Reply.
Ms Ahumada admits to discussing restructure and that the applicant informed her that she would not ‘be up to the challenge’ of the role following restructure. The applicant asked whether she would be considered for a redundancy but the respondent was not in a position to offer a redundancy at that stage as there would need to be a process put in place.
In a further statement dated 9 May 2023,[10] Ms Ahumada stated she always encouraged staff to finish work on time and that as far as she was aware, the applicant did not work overtime and if she did it was so that “she could flex her” hours to attend to other matters. She states that she offered a work from home arrangement to the applicant and that it was also offered to other staff members. She understood the applicant was happy with the arrangement. Workload increases were disputed. Ms Ahumada denied she bullied the applicant; that there was a ‘whispering culture in the workplace, adding the applicant never informed her that she was ‘overwhelmed or losing trust’ and the potential redundancy arose only after the discussion with the applicant.
[10] Folio 18 Reply.
Further, she states:
“Again, I am disappointed to hear that Lavinia believed there was a "whispering culture" which I had no knowledge of. Lavinia had a style of communication which impacted her approachability with her peers with no doubt; she often expressed frustration in her voice and body language when communicating with the team specially when they were asking her questions on a particular task. Therefore, to reduce any friction, I did ask all team members if there were any queries; or questions to raise it with me to help find a solution or reallocate/reduce/ automate task when possible.”[11]
[11] Paragraph 27 folio 21 Reply.
In a further statement dated 28 November 2023,[12] Ms Ahumada repeats the workload was reasonable and that it was spread evenly over the team. Further (unedited) paragraph 8 of the statement says:
“That she had never been taught how to train staff. I started my employment with Jaybro on 11 May 2022 but during my time working with Lavinia she didn't train anyone. I am not aware of her doing any training of anyone in the team to my knowledge. I can't comment on whether she was provided with, or asked for, in regards to being provided with any training on how to train people but she was the senior person in the team, she had the most experience”
Paragraph 15 continues:
“…I agree that I asked her to a meeting on 26 July 2022. It was an informal meeting and just a chat so no formal warning was to be given, it was to find out some information to find out what had happened. There was no need for the offer of a support person or to give her notice. It was just a one on one with her to have a chat and talk about what had been brought to my attention. If there was to be any disciplinary process then I would need to get HR involved and offer notice and support person for that type of meeting but it was just an informal conversation.”
[12] Folio 2 AALD.
Contemporaneous notes attached to the statement record;
“26.07.22 Chat with Lavinia regarding the way she communicate with Caroline. She agreed that she has an issue with the way she communicates with the team; she is frustrating sometimes when the team ask same questions over and over again. She told me the story about James; and the way she mentored him but at the end she had to fire him because of poor performance. It was really upsetting. She also told me that she requested so many times to her previous manager to have a training in Leadership so it can help her to deal with people. She never was offered that. She frequently ask herself if there is a job for her in the future; she can see many changes happening at the moment. I responded to her that yes the team is going through a change in structure; AP team needs to have a AP analyst specially when we need to introduce new systems for better solution and automation. She asked if would be possible to get a Redundancy; if this is something that can be discussed. She would like to receive a redundancy specially knowing that her skills are not right for the Analyst Positions. Going to this challenging role would it be exhausted and it will take so much energy from her. She took the rest of the day off.”[13]
[13] Folio 5 Reply.
Paragraph 20 of the statement says:
“on 8 August 2022 all of the training responsibilities were transferred to Carolyn because Lavinia didn’t want to do any training.”

Statement of Renee Van Vugt[14]

[14] Folio 9 Reply.

This witness is the chief financial officer of the respondent. In the initial statement dated
10 October 2022 she provides a history of the process of redundancy and she states that she had two or three conversations with the applicant regarding her “willingness to engage in the restricted change”. During these conversations the claimant demonstrated "mixed messages". The applicant volunteered for redundancy clearly indicating she was not willing to engage in a ‘process change’. She continues by adding that she had never witnessed the applicant being bullied or harassed by staff and that interactions have always been ‘fair reasonable and supportive’.
In the further statement dated 9 May 2023[15] Ms Van Vugt states (unedited):
“…. the applicant had issues coming into work….
…I did however communicate that it was necessary that service to the business from this department improve as I had received many complaints and feedback from both internal business stakeholders and suppliers around errors, delays in response time and communication.”
[15] Folio 23 Reply.
Careful review of the multiple statements confirms that instances or examples of complaints and feedback referred to above are not nominated but stated generally. It is unknown who made the complaints and in any event, the applicant has not been given an opportunity to respond to them.

Statement of Alison Passey[16]

[16] Folio 13 Reply.

Ms Passey is the group HR manager. In her statement dated 10 October 2023 she raises no issues regarding work performance. Claims of workplace bullying are denied. The statement continues by saying that the offer of redundancy was considered at the request of the applicant and the terms of the redundancy entirely reasonable including an offer of an ex gratia payment was made as part of the redundancy package if the applicant met benchmarks and assisted with the transitioning of the team and handover of tasks.[17]
[17] Folio 85 Reply.

Further statements by respondent

Additional statements were provided by various staff members. None refer to specific complaints relating to communication or feedback, errors, delays in response time etc, although emphasise the applicant was not bullied and had not made any contemporaneous complaints.

Respondent’s submissions

The submissions were extensive but when summarised are as follows;
(a)    injury is not in dispute. The respondent accepts the applicant sustained an injury within the definition of s 4 of the 1987 Act but seeks to rely on the defence found in s 11A of the 1987 Act particularly with regard to discipline and/ or retrenchment;
(b)    the respondent understands that it bears the onus of establishing that employment was the whole or predominant cause to injury and also that its conduct was reasonable and is satisfied that it can easily meet that onus;
(c)    the evidence is inconsistent with the applicant’s statement she sustained multiple stressors during her employment as treating doctor’s notes suggest the first complaint was on 6 September 2022 commencing in May 2022;
(d)    the statement of the witnesses are compelling and given that issues had been raised about the applicant’s conduct by other staff members, the respondent was obligated to meet and address those issues with the applicant. Each of these statements ‘unambiguously and comprehensively’ deny the applicant’s statement that she was bullied;
(e)    the evidence shows that the whole or predominant factors that give rise to the applicant’s injuries was the meeting that transpired on 26 July 2022 and the ultimate redundancy;
(f)    the actions taken by the respondent are objective and reasonable and the way the respondent dealt with the situation was fair;
(g)    the respondent was required to speak to the applicant because of complaints regarding her communication issues. This was not hearsay but related to a specific incident and the applicant admitted that she had communication issues and that her behaviour was inappropriate. The respondent did not punish the applicant unduly despite this admission, employment was not threatened or suspended. The respondent merely tried to address the situation to develop a healthy workplace;
(h)    as for the redundancy the way it was affected was reasonable. It is clear that the applicant was the one who initiated/requested the redundancy. It was not a matter that was ‘thrust upon her’ or ‘forced upon her to take’. There can be no suggestion that the applicant was not aware of what was transpiring. The letters regarding the redundancy were clear and the actions were reasonable. The handover which required ‘additional work’ was subject to additional remuneration. The respondent’s actions were fair;
(i)    as to the claim for incapacity, the respondent’s defence is liability alone and it makes no submissions in relation to incapacity or treatment. There is no positive defence that would be raised with regards to capacity in any event, and
(j)    PIAWE at $1,600 per week is not in dispute.

Applicant’s submissions

The submissions were also extensive but are summarised as follows;
(a)    I was referred to the authority of Attorney General v K[18] and specifically;
[18] [2010] NSWWCCPD 76.
i)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;
ii)if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established;
iii)so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind;
iv)there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’, and
v)it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.
(b)    In the factual circumstances, it is ‘patently obvious’ that there are numerous ‘real events’ that are accepted and not disputed despite the fact that there are some factual disputes or different views about various events in the case.
(c)    There has been no dispute in relation to the issues raised with respect to the COVID-19 pandemic specifically 2021-2022, the training of and ultimately dismissal of James and the removal of core duties from the job description (training and supervision) and the lack of training. The respondent alleges that such events are not relevant to the claimed injury; that is not the case when the evidence is considered.
(d)    I was referred to the authority Hamad v Q Catering[19] specifically, there is no support from the respondent’s medico legal expert to deny the allegations of injury, particularly in the circumstances where the respondent asks that events in 2021 and 2022 be disregarded. It is not sufficient to look to one record and then infer that other events had nothing to do with the injury, particularly in circumstances where the events are not denied by the respondent. The applicant has raised the events with the specialists, both treating and qualified.
[19] [2017] NSWWCCPD 6.
(e)    The respondent has not disputed that the applicant was not a manager and yet she was required to undertake management tasks such as the HR process of the termination of James.
(f)    The respondent has not disputed that the applicant was not a trainer yet she was still required to train and ultimately undertake a handover as part of the terms of redundancy.
(g)    These additional tasks of management and training in addition to the time sensitive work of accounts management, caused stress and anxiety.
(h)    With regards to the meeting on 26 July 2022, the applicant was not given notice of the meeting or what was to be discussed. The meeting notes record the history of events going as far back to James (training) and were not isolated to the ‘communication issues’. The applicant was not given the opportunity of a support person.
(i)    The meeting on 26 July 2022 was just an informal ‘chat’ and the respondent admits that if there was ‘to be any disciplinary process then I would need to get HR involved and offer notice and support person for that type of meeting but it was just an informal conversation’. This does not fall into s 11A. If it is considered to be s 11A then it cannot be said to be ‘reasonable’.
(j)    There is a history of at least 12 months of events that caused the applicant anxiety and stress. These factual issues are not disputed by the respondent and having regard to Attorney General v K the respondent cannot satisfy in the Hamad sense that the whole or predominant cause of the injury was either the meeting of 26 July 2022 or the redundancy.
(k)    The applicant felt isolated from other members and this is consistent with Pamela Ahumada’s request to staff to speak to her instead and therefore bypass the applicant.
(l)    There are no recorded formal complaints about the communication style from other staff. The applicant was required to work from home and the applicant perceived these events as isolation of her and marginalisation of her. This is clear from the medical evidence.
(m)     The retrenchment must be reviewed in the context of the history. In effect, the applicant felt as if she was being constructively dismissed, and where she felt she had no future and sought redundancy in that moment.
(n)    There is no single event, but multiple events which gave rise to injury.
(o)    That there are numerous past factual events that are not denied. The applicant raised these in the meeting with Pamela Ahumada but these matters were not addressed.

Respondent’s submissions in reply

The submissions in reply were summarised as follows;
(a)    in Hamad’s case the need for medical evidence dealing with wholly or predominant issue depended on the facts. Again, it is necessary to refer to
Dr Dave’s entry in June 2023 which is silent on any issues that may have arisen prior to May 2022. The applicant has then subsequently made other complaints but the issues were never raised to staff or management contemporaneously;
(b)    with respect to discipline, s 11A does not require a formal meeting. It states ‘action taken or proposed to be taken with respect to the s 11A concepts’. There is no requirement in the legislation that there be a specific requirement for a disciplinary process to satisfy the section;
(c)    the definition of ‘discipline’ was considered in the case of Kushwaha v Queanbeyan City Council[20] – where Neilson J held that the employer’s process of drawing the worker’s performance to her attention, asking her to improve her performance and suggesting ways of doing so and of offering assistance in training was ‘discipline’. Given, this definition, the meeting on 26 July 2022 comfortably satisfies the concept of discipline with respect to 11A, and
(d)    the s 11A defence is satisfied for discipline and redundancy. The respondent’s action with respect to discipline was reasonable. It had to act on the communication complaints. Its actions were also reasonable with regards redundancy.
[20] [2002] NSWCC25; (2002) 23 NSWCCR 339.

FINDINGS AND REASONS

Injury and incapacity are undisputed by the respondent. I have been asked to determine whether the psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and or retrenchment– s 11A of the 1987 Act.
Section 11A (1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent bears the onus of establishing the s 11A defence:[21]
“Wholly” and “predominantly” are separate concepts and a finding of one or the other needs to be considered.”[22]
[21] Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346 and Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206 .
[22] Smith v Roads and Traffic Authority of NSW[2008] NSWWCCPD 130
The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused”.[23]
[23] Ponnan v George Weston Foods Ltd[2007] NSWWCCPD 92; Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd [2008] NSWWCCPD 96.
The key question here is whether the meeting on 26 July 2022 was in fact one of a disciplinary nature. I have considered the submissions of the parties and find that it was not. Again, to repeat, Pamela Ahumada specifically stated;
“It was an informal meeting and just a chat so no formal warning was to be given, it was to find out some information to find out what had happened. There was no need for the offer of a support person or to give her notice. It was just a one on one with her to have a chat and talk about what had been brought to my attention. If there was to be any disciplinary process then I would need to get HR involved and offer notice and support person for that type of meeting but it was just an informal conversation.”
I understand the respondent’s submission specifically with respect to the definition of ‘discipline’ found in Kushwaha but find these circumstances do not fall within that definition, specifically because the respondent itself did not consider it to be so, it being ‘just a chat’. More importantly, whilst good law at the time, I find the definition has little current utility given the vast and significant Industrial Relations reforms over the two decades that followed that decision, including the evolution of work practices, entitlements, workplace culture, codes of conduct and various other employment protections (for both employer and employee) and more importantly specific internal HR policies of the employer, which were not advanced by the respondent. The generic definition of ‘discipline’ offered by Kushwaha is inadequate in these circumstances.
Here the respondent’s witnesses submit that ‘many’ colleagues have complained about her communication style and there were errors yet none are specifically identified. So effectively, even to this day, the applicant was never given an opportunity to respond to the complaints, confirm that they related to her, nor an ability to act on any key areas of improvement identified/suggested. There are no performance management plans before me and most of the witnesses confirm that performance was not disputed. This is then inconsistent with the ‘complaints’ from external customers and errors raised by Ms Van Vugt. The colleague that the applicant admits to being short with,(Caroline) as I understand it did not make a formal complaint and the late statement was withdrawn by the respondent prior to arbitration.
However, even if I am wrong on that point, before a consideration is undertaken as to the reasonableness of the respondent’s action in respect to discipline or retrenchment, it is necessary to determine if injury was wholly or predominantly caused by that action.
In (Hamad), DP Snell said at [88]:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. 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.”
The respondent submits that the report of Dr Dave supports that the ‘disciplinary meeting’ on 26 July 2022 was the whole or predominant cause of the applicant’s injury, however careful reading of that report records that the applicant nominates several stressors and not the meeting alone, that is but one event that is recorded. Not only do I find that the meeting was not disciplinary in nature, I also find that the report of Dr Dave fails to satisfy me that the meeting was the whole or predominant cause as there were a number of potentially causative factors (Hamad) for the psychological injury. As I have made this finding it is not necessary for me to explore the reasonableness of the respondent’s action, however it would be remiss of me to not make some comments.
Here the key witnesses, Pamela Ahumada and Renee Van Vugt only commenced employment with the respondent in the first and second quarter of 2022 and so did not witness the distress the applicant complained of with regards to her need to terminate James and are not able to comment on the workloads prior to their commencement.
Further, the statements of the above two witnesses were suboptimal and largely self-serving. They were vague in their detail, in that they do not specifically nominate the ‘complaints’ with any degree of specific detail that would enable the applicant to alter her behaviour if that was in fact required. There appears to be no follow up plan or performance appraisal regarding what is inferred to be a serious issue and further Ms Ahumada herself admits that she discouraged staff from approaching the applicant, hence the applicant feeling isolated when there had been a significant reduction in overall staff contact (not perceived but rather an actual outcome) (Attorney General v K). The statement confirms training duties were assigned to another (allegedly at the request of the applicant) but this did not result in a change to the applicant’s formal position description. Further, Ms Ahumada stated that to her knowledge the applicant was not required to train staff, so, why then, were these duties reassigned? This inconsistency results in the finding that the statement is largely self serving. The evidence suggests the applicant was a poor communicator yet the redundancy offers a significant ex gratia payment if she ‘hands over’ the duties to other staff. This suggests that the respondent was not significantly concerned about the applicant’s conduct/communication in the workplace as if it was, I would have expected that a different approach be taken. Overall, there is nothing reasonable in the respondent’s action on this point. I could nominate other areas where I feel the respondent has fallen short in its conduct and treatment of the applicant however, this is unnecessary.
Next is the issue of retrenchment. The respondent and its witnesses maintain that this was at the instigation of the applicant. Certainly the applicant raised it in the meeting on
26 July 2022 although the evidence suggests that she felt blindsided, excluded, unvalued, her job description was being changed and overall she felt unsupported and that she would not be able to meet the expectations of any new role on restructure. I find that the retrenchment was not wholly or predominantly the cause of the applicant’s injury. The witness statements suggest that the process with regards to retrenchment was reasonable. Further exploration on this point is redundant as even if I found this to be so, I cannot find that the respondent has discharged its onus in establishing that matter was the whole or predominant cause of the applicant’s injury.
Overall, independently of the concession made by the respondent, I find that the applicant suffered an injury in the course of her employment and I further find for the reasons given that employment was the main contributing factor to the injury. I find that the causes of the injury on the basis of the medical evidence were multifactorial, and that the respondent has not discharged its onus of proof in establishing that its actions were either reasonable or even if they were reasonable, that they were the whole or predominant cause of the applicant’s injury.

Capacity for employment

The medical evidence overwhelmingly certifies the applicant as having a total incapacity for work. I find that the applicant has been incapacitated from the date of her claim and remains so incapacitated.
I note that the applicant’s PIAWE was $1,600 and that the period claimed by the applicant is pursuant to s 37 of the 1987 Act. This being so, weekly compensation payable is 80% of PIAWE as indexed.
The respondent is therefore ordered to pay the applicant weekly compensation from
14 June 2023 to date and continuing pursuant to s 37.

SUMMARY

For the above reasons, I made the findings and orders as set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 34

29 January 2024