SYTP Block OpeC19td v Workers Compensation Nominal Insurer (iCare)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	SYTP Block OpeC19td v Workers Compensation Nominal Insurer (iCare) & Ors [2024] NSWPIC 258
APPLICANT:	SYTP Block Operations Pty Ltd
FIRST RESPONDENT: SECOND RESPONDENT:	Workers Compensation Nominal Insurer (icare) BVO
SENIOR MEMBER:	Kerry Haddock
DATE OF DECISION:	17 May 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; application by uninsured employer to set aside or reduce amount sought by Workers Compensation Nominal Insurer (icare) by notice issued pursuant to section 145(1); icare accepted liability for psychological injury to the second respondent, as a result of interactions with her manager on 16 April 2023; applicant disputed that the second respondent had sustained injury; that employment was a substantial contributing factor to injury, and maintained that injury was caused by its reasonable action with respect to performance appraisal and/or discipline; second respondent had pre-existing psychological condition; Hamad v Q Catering Limited, State Transit Authority of New South Wales v Chemler, Attorney-General’s Department v K, Strinic v Singh, Chanaa v Zarour, Boral Recycling Pty Ltd v Figueira, Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Ltd, Secretary, Department of Education v Dawking, Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Dunn v Department of Education & Training, Kushwaha v Queanbeyan City Council, and George Weston Foods Ltd v Bogdanoski considered; Held – the second respondent sustained psychological injury arising out of or in the course of her employment on 16 April 2023; employment was a substantial contributing factor to injury; the injury was not wholly or predominantly caused by reasonable action by the applicant with respect to performance appraisal and/or discipline; the applicant is liable to reimburse the first respondent the amount of $20,742.91, pursuant to section 145(4).
DETERMINATIONS MADE:	The Commission determines: 1. Pursuant to s 145(4) of the Workers Compensation Act 1987, the applicant is to reimburse the first respondent the amount of $20,742.91.

STATEMENT OF REASONS

BACKGROUND

The applicant, SYTP Block Operations Pty Ltd t/as Memory Block (Memory Block), has lodged a Miscellaneous Application (the Application) in the Personal Injury Commission (Commission). The applicant disputes its liability to reimburse the first respondent, Workers Compensation Nominal Insurer (icare) for payments of compensation made to or on behalf of the second respondent, BVO (BVO/the worker/also known as BVO), pursuant to s 145 of the Workers Compensation Act 1987 (the 1987 Act).
BVO was employed by the applicant as a senior sales representative. She claims to have sustained a psychological injury on 16 April 2023.
The applicant did not hold a workers compensation insurance policy.
The worker completed a Worker Claim Form (the claim form) on 5 September 2023.
The claim form stated that the date of injury was 16 April 2023.
BVO stated that she was “mentally abused at work which caused me to have a panic attack.” This triggered her asthma, so she was also having a severe asthma attack. She was “refused to receive medical care”. Her “boss was the one” that refused her medical care for two hours.
By letter dated 24 May 2023, icare advised the applicant that the worker had made a claim for workers compensation. It provided details of the claim and attached a copy of the claim documents.
Icare requested information of the applicant, pursuant to s 141(2) of the 1987 Act.
The applicant’s response is undated.
The applicant stated that the worker commenced employment on 22 August 2023 [sic: 2022]. She worked 38 hours per week. Her award rate was $23.39 per hour.
The worker’s employment had ceased – “Termination notice sent to the employee after numerous attempts to contact and understand her willingness and wellness going back to work.”
The applicant stated that it was not aware of any injury that occurred while the worker was working. She “demanded” certain hours per week, which it could not fulfil, and “right after got a certificate from a general doctor saying she couldn’t work for the next few days.”
The applicant was aware that the worker had a weekly meeting with a psychotherapist on Monday afternoons, which could not be changed, as the therapist was a family friend, who was not charging for the sessions. While at work, the worker’s former condition did not seem to affect her performance or work.
The applicant stated, “In my eyes there was no injury occurred whilst at work. I can prove she demanded hours and only after it did not work for her, she sent the medical certificate.” The worker did not report the injury. The applicant became aware of it when contacted by icare.
The worker had provided medical certificates. “As weeks went by and we have tried to reach her out [sic], all we got back was the certificate, which we believe is fake.”
The applicant stated that it was aware the worker faced financial pressure. It frequently lent her money before her wages were due. It was “disappointing to see her take advantage of our kindness.”
The applicant found it “perplexing” that the worker wanted to return to work, once it had tried to accommodate most, but not all, of her scheduling requests. After “ongoing numerous attempts to reach out to her and plan the following week, we did not hear back and a [sic] two days later got sent a medical certificate.”
On 9 October 2023, icare issued the applicant with a notice pursuant to s 145(1) of the 1987 Act (the notice), seeking reimbursement of the sum of $20,742.91.
The applicant filed the Application on 6 November 2023. It sought an order to strike out icare’s determination as to liability; or in the alternative, to reduce the compensation payable to the worker to nil, or as determined by the Commission.
The first respondent lodged its Reply on 30 November 2023.
The second respondent lodged her Reply as an attachment to an Application to Admit Late Documents (AALD) on 11 April 2024.

ISSUES FOR DETERMINATION

The parties agree that the following issues are in dispute:
(a)    whether the worker has sustained an injury;
(b)    whether employment was a substantial contributing factor to the injury, and
(c)    whether the applicant has a defence pursuant to s 11A of the 1987 Act, relying on its actions with respect to performance appraisal and/or discipline.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for preliminary conference on 11 December 2023. Mr Atzmon appeared for the applicant, and Ms Turnbull appeared for the first respondent. Mr Peretz and Mr Dadoush of the applicant attended.
Directions were made to join BVO as the second respondent, and for further conduct of the matter.
The matter was listed for further preliminary conference on 9 February 2024.
Mr Atzmon appeared for the applicant, and Ms Faapito appeared for the first respondent.
Mr Peretz and Mr Dadoush again attended. Ms Merchant of icare also attended. There was no appearance by the second respondent.
Ms Faapito advised that, in addition to the pleadings having been served on BVO by the applicant, the first respondent had provided her with the pleadings but had had no response.
Directions were made for further conduct of the matter, including granting leave to the first respondent to issue Directions for Production on the medical practitioners who had treated the worker.
The matter was listed for conciliation/arbitration hearing on 18 April 2024, for the entire day, the applicant having given notice of a potential application for leave to cross-examine the worker.
On 16 April 2024, Mr Atzmon appeared for the applicant. Mr Grant of counsel appeared for the first respondent, instructed by Ms Faapito. Mr Moffett of counsel, instructed by Ms Giusti, appeared for the second respondent. Mr Peretz and Mr Dadoush attended. Mr Butcher of icare and BVO were also present.
The applicant sought an adjournment of the matter. Both the first and second respondents opposed the application for adjournment.
The basis for the application for adjournment was that the applicant wished to provide BVO’s medical records to an independent medical examiner for review and opinion.
The applicant had not objected to the admission of the worker’s clinical records, which were attached to an AALD dated 15 April 2024, lodged by the first respondent, and they had accordingly been admitted by consent.
The applicant then sought to withdraw its consent to the admission of the documents. If the documents were admitted into evidence, then the applicant pressed its application for an adjournment.
After seeking instructions, Mr Atzmon advised that, even if the clinical records were excluded, the applicant still sought an adjournment, and to have the records “re-admitted” after it had had the opportunity to have them analysed.
The application for an adjournment was refused, for reasons that were provided at the hearing and recorded.
The first and second respondents objected to the admission of some of the documents attached by the applicant to an AALD dated 16 April 2024.
The applicant withdrew its reliance on what I would describe as “financial records”. It pressed for the admission of statements by Mr Peretz, Ms Gabby Rose, and Ms Charlotte Kammerer.
The first respondent objected to the admission of Mr Peretz’s statement, but neither consented to nor opposed the admission of those of Ms Rose and Ms Kammerer.
The second respondent objected to the admission of all three statements.
The applicant withdrew its reliance on paragraphs 13 to 15 of Ms Kammerer’s statement. The second respondent then withdrew her objection to the admission of the three statements. For reasons that were provided at the hearing and recorded, the statements were therefore admitted, save for the financial documents and paragraphs 13 to 15 of
Ms Kammerer’s statement.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Amended Application and attached documents;
(b)    first respondent’s Reply and attached documents;
(c)    AALD dated 11 April 2024, filed by the second respondent, and attached documents (Reply);
(d)    AALD dated 15 April 2024, filed by the first respondent, and attached documents, and
(e)    AALD dated 16 April 2024, filed by the applicant, and attached documents, with the exception of pages 40 to 69 inclusive; and paragraphs 13 to 15 inclusive of the statement of Ms Charlotte Kammerer.

FINDINGS AND REASONS

Evidence of the worker, BVO

BVO’s statement is dated 14 June 2023, but it was signed on 10 April 2024.
She had had quite a few friends pass away in the past two years, which had caused distress. Two years ago, her best friend committed suicide. Her boss was aware of this.
She had had other personal stress that had affected her emotionally in the past two years, such as all of them getting sick with COVID-19. She and her father were both in intensive care. She had shared information with her employer. Her employer was like family and knew everything.
Her general physical health history was “amazing”. Her mental health was “a hard one” as she was going through a few things, that was normal given her situation. Before she worked with her employer, her mental health was 7/10.
She was diagnosed with anxiety and depression in early 2022. That was when she started talking to her psychotherapist.
Her workers compensation related issues had affected her badly, “it turned my whole life upside down”. She did not sleep due to anxiety and took two types of sleeping medication. She could not stop eating or did not eat at all. She had nightmares without medication. She suffered moderate agoraphobia. She had been prescribed anti-depressant.
She commenced employment with the applicant in August 2022. Within the first two weeks, she was promoted to regional manager. Her normal hours averaged 40 to 50 hours per week, Sunday to Friday. They had not paid her for all the hours she worked. They had not logged her hours and were refusing to pay her. They owed her for travel time they were refusing to pay.
Her supervisor was Tomer Peretz.
She had not been counselled for any performance issues. Her boss called her once at 8pm over a personal issue. He was always wanting to talk business after hours. She had had enough, which she expressed to him. The next day, he pulled her aside and said it was her last and final warning, and if she behaved like that again she was fired.
There was no support if an incident occurred. Tomer would yell and blame her. Her employer provided a very abusive environment in terms of mental health.
Her work attitude at the beginning was great. She loved the job and the team. Towards the end, Tomer became impossible to deal with. He became emotionally abusive towards everyone. If he was not there, she would still be working there. She “just hated the pay though.”
As regards the injury, “it started with little things.” In October 2022, there were issues with the printer. She had no idea how to fix them. She called Tomer and he started yelling at her. That was the start, with incidents occurring weekly. He was getting angry at her for things that were not her fault.
In around November/December 2022, there were a lot of cockroaches in the store where she was working at Warringah Mall. Tomer knew she did not like cockroaches. One day there was a huge infestation, and she freaked out. She called Tomer saying it was disgusting, and she could not work like this.
Tomer asked why she was bothering him with a non-relevant issue. He ended up bug-spraying the whole area. He was not happy about it, and started telling her she was a nobody, insignificant, and needed to get over herself.
Those types of incidents happened at least two to three times per week, until early January 2023. She would seek guidance and Tomer would dismiss her.
Some witnesses to his behaviour were Sebastian at Strathfield, Josh at Castle Hill, Hayley, and Gabby at Green Hills.
Tomer went on leave at the end of December (2022) and told her to manage the Green Hills store. She drove to the Hunter Valley every day for six weeks and incurred $1,700 in hotel and travel costs. On[e] Thursday night she worked until 9pm. She called Tomer to ask if she could stay in a hotel. He agreed but was not happy.
There was an event in early January 2023 at Green Hills where Tomer was verbally abusive. She said, “Don’t ever speak to me or swear at me like that again. I quit.” She hung up on him. She told the girl in the store she was leaving as she was crying.
They had a three-hour argument via text and phone. She had a panic attack in the car and was stuck at Green Hills, in no condition to drive. Tomer continued to abuse her over the phone. She could provide SMS messages, but they were in Hebrew. He eventually apologised two hours later.
There was an incident when she was on a video call to Tomer. A staff member was sitting on the counter behind her. Tomer was not happy about it, blamed her, and started yelling abuse at her.
There was a specific event at the Easter Show (the Show). She was very frustrated because everything Tomer promised had not been delivered. He did not give her time off for her holiday. She had to give up a 10-day holiday she had booked. He had still not paid her for the hours and travel costs he owed her.
During the Show, Tomer was being horrible to a lot of people. She told him “not to talk to us like that.”
On the second last day of the Show, she felt exhausted as she had worked 10 days straight with long hours. It took her 2.5 hours to get there. She was late that morning as something happened at home. When she got there, Tomer was in a mood towards her but “super nice to everyone else.”
Tomer kept making inappropriate remarks to her. He was putting a tool in his bag. She asked if he was leaving. He said, “It’s none of your business what I do.”
He then grabbed a hammer and said to everyone, “This is a good hammer…this hammer is for when BVO pisses us off, we hit her head with it”, and kept swinging it around. She brushed it off and continued working.
Tomer stayed and “was in my space the whole day”. He would speak Hebrew over her when she was talking to customers in English. She outperformed him with sales, and he got on the attack and became passive-aggressive towards her in front of other staff. He was a narcissist. She was better at the job, and he did not like it.
After an episode with a customer, Tomer took her for coffee and said she should not cut into his sale. She told him she had had enough, to stop this behaviour, and she would not tolerate it anymore. She said, “let’s get back to work. We need to make money as we only have two days left and we have not hit the target.”
Her hours were an ongoing issue. Tomer would promise her a certain number of hours and give her less. She would chase it up and he would eventually give her the hours. She was supposed to be contracted for 40 hours per week.
On the same day (at the Show), at about 3pm she was feeling dizzy and hungry from not having a break. She got low blood pressure and Tomer knew it. She told him she was taking a 15 minute break. He said she could not go as she had only been there since 11:30am.
She said she was going to lunch, “try and stop me.” He said, “10 minutes or you are fired.” He spoke through his teeth. They spoke in Hebrew.
She came back 12 minutes later. He had changed her hours and bonus on the timesheet. She asked why. He started screaming in Hebrew at her. She said not to change her timesheet as it was not legal. The money she made went to her daily bonuses.
Bianca and Charlotte witnessed everything that happened.
Tomer cornered her. He got in her face and said, “Get the fuck out of my shop, you are a horrible employee and the worst I have ever had.” She started shaking and left the shop. Bianca and Charlotte asked if she was OK, and she told them she was quitting.
She was having a panic attack, so she moved away from the stand and ended up in the loading dock. She started breaking down, which triggered her asthma, so she called her friend Ollie. Everything was a bit vague from there.
Her bag was at the stand, and she needed her puffer, so she messaged Bianca to bring her bag. Tomer would not let them bring her puffer to her. This went on for two hours. Eventually he said yes. However, Bianca could not see her bag. She let Bianca know where she was. No one could find her bag. She later found out he hid her bag.
She called her psychotherapist, who called the paramedics onsite. Tomer did not allow Bianca to call them and told her she was faking it.
She went to the paramedic station and Ollie picked her up later.
The paramedics wanted to call the police to make a report. She did not report it as she felt too overwhelmed. She was undecided whether to make a complaint. Tomer was here on a student visa. If she made a complaint he would be deported, and the company could not sponsor anyone. She was being empathetic.
On Easter Monday she got a medical certificate for a few days. Tomer kept messaging her, asking when she was returning to work. She told him she would talk to her doctor and let him know.
Her doctor advised her not to go back to work and to go on workers compensation. She called the doctor on Tuesday and told her she was not OK. She gave her a certificate for one week.

On 20 April 2023, Tomer said he wanted to come to an arrangement, and would give her 40 hours a week. She said she wanted 40 hours a week and a contract.
He messaged her saying he could not give her 40 hours a week, based on her therapy sessions being on Monday, and asked her to change them. He wanted her to work Saturdays when he knew she did not work Saturdays. He started sending abusive messages, saying “that I am not all about me and that I should have the company’s best interest at heart.”
She called Beyond Blue as she was having a panic attack.
She got another medical certificate on Thursday. By this stage she had made a decision to go on workers compensation, and the therapist guided her. She did not tell her employer.
She was told on 5 May 2022 [sic: 2023] that her employer did not have insurance and they were asking her for documents.
The following week, Heim (Dadoush) and Tomer started calling her mum. She told them not to message anymore.
Heim sent voice messages and she replied with her side of the story. He was being “really nice” to her, and said he was sad this had happened. They were upset she was not with the company. They loved her like family. He was aware of a legal complaint. She said she had only applied for compensation, and wanted the money they owed her.
This was on 7 May 2023. She said that was what workers compensation insurance was for, if someone got injured at work. She was not going back to work. All she wanted was to get her money. She was in no physical or mental condition to go back.
Heim “totally flipped” and said they did not believe her. He started threatening her from 10pm to midnight. He said she was clearly unstable. He said it was all her fault, and Tomer had a right, and threatened her “with an army of lawyers” and taking her therapist away. They said they would take her to court and destroy her. She said to please stop messaging her.
She had the voicemails, but they were all in Hebrew.
At about 12:58am on 10 May 2023, they sent a termination letter and removed her from the group chats.
They said if she did not drop the workers compensation and return to work, they would sue her. It was because they did not have insurance and knew the consequences.
She had a panic attack when she got the letter. She was always scared they would come to her house. She had not heard anything since 10 May 2023.
She lodged a complaint with the Fair Work Ombudsman. They lied to Fair Work, which said she had to take it to court as they could not help. The company changed her hours, tried to say she was claiming more hours, and working at Green Hills was a personal holiday.
Two weeks ago, they paid her annual leave out at $24 per hour, instead of $30 per hour.
She did not think her injury could have been avoided. It was just Tomer’s character. He should have provided medical care at the Show. She was worn out from his constant abuse. In her opinion, her mental health condition was caused by this, and his manipulation, coercion, gaslighting, threats, and behaviour.
There is a further statement from BVO. It is dated 3 January 2024, but appears to be the statement taken on 14 June 2023, with some additions.
I have done my best to discern where and how this statement differs from the first statement and extract the relevant information.
Tomer gave her less than 10 hours the week after the Green Hills incident as punishment for the argument. She was so upset and distressed she ended up crying and stressed in the middle of her shift.
This resulted in her giving Tomer a multimedium [sic: ultimatum] that if he did not give her the promised hours, she would resign. He gave her the promised hours. This became “the new normal.” Every time Tomer would not deliver what was promised, it ended in an argument, and he only fulfilled his promise when she said she was resigning.
During the Show, Tomer was especially rude to her and another young female staff member, who also ended up leaving crying a few times.
When she left the shop, she had none of her belongings, but her phone was in her pocket.
While she was on the phone to Ollie, she started having an asthma attack. Ollie told her to contact the girls and get them to bring her bag.
She contacted three of the staff and sent her location. After 20 minutes, Tomer let Bianca bring her belongings, but not the bag with the puffer in it. All her belongings were together in one place.
When Bianca returned, Tomer would not let her, or any other staff member, bring her puffer. No one could find her bag and they looked everywhere. She later found out from the staff that he hid her bag, as he believed she was faking this for attention.
During this time, she was struggling to breathe and started fearing for her life.
After two hours, a staff member, Liraz, found her bag and brought it to her. He went back to the stand and told the girls she was fine and there was nothing wrong with her.
During the entire time, Tomer was sending her abusive messages and telling the girls if she wanted her things, she needed to get them herself. He also kept demanding she call him and return to the stand.
When she got home, she informed Shay (Yafe), Tomer’s business partner, roughly what happened, and that she would not be going to work the next day. She informed them she wanted to talk to her doctor and see when she would be fit for work.
After she made the claim, Heim accused her of being a gold digger and of only doing this for the money. He said it was all her fault, and Tomer had the right to speak to her the way he did and refuse her medical aid if he thought she was faking it.
Heim also threatened that no one in the Jewish community would take her seriously, let alone be friends with her, if she continued with this.

WhatsApp messages

The statement attached copies of WhatsApp messages between the worker, Bianca Jones, Shay Yafe, Charlotte Kammerer, and Tomer Peretz, some of which are not relevant. The applicant also relied on some of these messages.

16 April 2023

At 3:14pm, Mr Peretz said “Call me before u stepping in back.”
At 3:15 pm, Ms Kammerer asked if the worker was OK and if she needed anything.
The worker asked at 3:48pm if Ms Kammerer could bring her things and shared her location. At the same time, she asked where Ms Kammerer was.
Ms Kammerer responded that Tomer said to call him.
There are messages from Mr Tomer in what is assumed to be Hebrew at 3:48pm, 4:05pm and 4:06pm.
At 3:52pm the worker said she was not calling Tomer and “please I need my things”.
At 3:56pm the worker told Ms Kammerer that she needed her puffer, which was in her bag.
At 4:02 pm, the worker asked Ms Jones to bring her handbag. It had her puffer, which she needed. She had sent her location to Charlotte.
At 4:05pm, Ms Kammerer said Bianca was bringing it; and at 4:27pm that they could not find the bag anywhere.
At 4:20pm, Ms Jones asked where the bag was.
At 4:23pm the worker said it was next to the large blocks, where the bags were.
At 4:25pm Ms Jones said she could not find it and had looked everywhere. Ms Kammerer sent a similar message at 4:27pm.
At 4:27pm the worker said, “It’s there. Please I need it.”
At 4:29pm, the worker said it was where the “mb bags” were. “Please I need my puffer”.
At 5:12pm, Ms Kammerer said “Reach out if you need anyone, Me and Bianca are here for you :)”.
At 5:31pm, Ms Kammerer said she would not be able to call, “text if you need x”.
At 8:08pm, the worker thanked her.
At 8:11pm, the worker said to Mr Yafe that she had just got home and did not have the best news to tell him.
Due to Tomer’s behaviour towards her at the Show, she had a panic and asthma attack that required her to receive medical care. She had been strongly advised not to go to work tomorrow and to receive further medical care.
The worker advised she would not be speaking to Tomer until she had spoken to her therapist. She would not be attending her shift tomorrow and would keep Mr Yafe posted if she would be cleared for the rest of the week.
At 8:22pm, Mr Yafe responded that he hoped she felt better. He was “not in a position to get in between you and Tomer.” He hoped they could figure it out, as it would be a shame not to see her at Memory Block.
The worker answered that she was not asking him to get involved. She did not want to let the team down, so she was asking him to pass on the message that she would not be attending work until she was medically cleared.
Mr Yafe responded, “Will do kapara, Hope you will feel better soon.”
At 11:10pm, Ms Kammerer said she and Bianca felt really sad about what happened today. She asked if the worker was OK.
At 11:12pm the worker said it was OK, and not to feel bad. She was sorry “you two ended in the middle of it.” They had done nothing wrong. She had just wanted to ask, “where was my bag?”
Ms Kammerer responded that she was sad that the worker was so sad. It “broke our hearts hearing you like that.”
The worker was sorry they had to see her like that. “Everything will be OK xx”.
At 11:15pm, the worker messaged Ms Jones that she was sorry she had to see her like this today and thanked her for helping her.
Ms Jones responded, “Please don’t apologise. It’s terrible how things can happen sometimes. It’ll [sic] always be here for you.”

17 April 2023

At 10:16am Mr Peretz said he understood the worker wanted to speak to her therapist before further communication. He would find her a swap for the shifts for the rest of the week. However, if she decided she could come to work that was “great”, but he needed a three day heads up because once he called someone else, he could not change it.
At 3:02pm the worker messaged Mr Yafe that she had been told to rest until tomorrow. She was waiting on a medical certificate and would send a copy as soon as she received it. She was also advised to go back to her workspace only if it was possible for her not to have contact with Tomer that week.
Mr Yafe’s response is not in evidence.
At 4:34pm the worker told Mr Yafe she understood what he was saying, “but yesterday Tomer went too far”. Her anxiety issues were independent to [sic] what happened yesterday. Her panic and asthma attack “were 100% due to Tomer’s behaviour.”
The worker said she was unwell and in physical pain, as she needed her puffer and Tomer would not let the girls bring it for almost two hours. Her doctor called 000 as she was barely able to breathe for hours.
The worker hoped Mr Yafe could understand why she did not want to contact Tomer. The way he had behaved had put her health at serious risk yesterday. If Mr Yafe was not the person to contact, she asked that he refer her to someone that was not Tomer.
There was a deleted message at 5:40pm.
At 5:41pm, the worker messaged that she appreciated Mr Yafe and everything he said. She asked that he let her know who else instead of Tomer she could speak to, as she did not wish to have any communication with him. She had her medical certificate so she could get paid sick days. She would be back to work on Wednesday “and we can go from there.”
At 5:56pm the worker sent Mr Peretz a file (possibly her medical certificate).
At 6:57pm Mr Peretz thanked her and said he needed the key to the cash safe.
The worker said she would leave it at the QVB (Queen Victoria Building) on Wednesday. As she had a medical certificate, she asked if she could have those days as paid sick. She would send an email tomorrow about adjustments to her payroll.
At 7:37pm, Mr Peretz said Wednesday was no good. He needed it today or tomorrow morning at the latest.
At 7:39pm the worker asked how she was expected to get it to him.
At 7:42pm Mr Peretz said “What kind of answer are you expecting? We bumping out the show tomorrow and I need the key…What are you suggesting?”
At 7:44pm the worker said she was on medical leave. “Me coming to you is not an option.”
Mr Peretz responded that it should have been left at the Show, but she never came back so…
At 7:45pm the worker said she had the key. Mr Peretz or someone could collect it from her place or order an Uber delivery.
At 7:45pm Mr Peretz said, “Great thanks.”
There were some further messages, and “Doobi” got the key later that night.

18 April 2023

At 11:31am Mr Peretz said it was great that the worker got a certificate but that was not why she was off for the rest of the week. He had to find some swaps for her shifts, so he was not expecting her to “just show up without a heads-up”. If she wanted to come back next week, he would love that, but she needed to let him know. Text was fine if she did not want to talk.
From 11:51am to 11:54am there was a series of messages from the worker to Mr Peretz.
The worker said she had said she wanted to talk to her doctor before making that decision. He could not just take away her shift, “it is not OK”.
The worker asked how he expected her to move forward “when this whole thing started because you are not giving me enough hours to survive. I don’t know how many times we can have this conversation.” If he was not putting her on shift, it would be paid leave.
The worker asked how he expected her to trust him as her employer, let alone as her friend.
At 12:09pm, Mr Peretz said “This is what’s happening now. You can’t decide when you work or not and give me this whole drama thing. It’s a business, not day care. Let me know if you want to be rostered and come back from next week onwards. Yes or no.”
Mr Peretz said that week was done already, without the worker. He was not going to waste more time on it.

20 April 2023

At 12:28 pm Mr Peretz said he was making a roster. If the worker wanted to work next week, he was happy to fit her in for 40 hours at the QVB. He needed an answer in the next hours [sic] or so. They would find a way to work together in the best way for both.
At 1:54pm the worker said she would take the 40 hours at the QVB next week. The best way to go about it was that they did not see each other.
At 2:06pm, Mr Peretz said, “Let’s make it happen” and touch base in a week or two via text and see “how things rolling and we are both happy with the work relationship.”
The worker responded, “Sounds good”, and Mr Peretz sent a thumbs up emoji.
At 5:40pm, Mr Peretz said he had 40 hours if the worker could move her Monday appointment to the morning and start at 12.
The worker responded that he knew very well she could not do that. She had attempted on multiple occasions to change the time and it was not possible.
Mr Peretz said, “No problem, so it won’t be 40 hours.”
There were further messages about 40 hours, with the worker offering to work from home and do interviews.
Mr Peretz said five days must be under 40 hours, there was just no other way.
At 5:50pm the worker said they agreed on 40 hours, and he was well aware of her unavailability.
At 5:51pm. Mr Peretz said “No, no interviews or work from home anymore.”
There were further messages about the worker’s availability and shifts.
Mr Peretz said they were his shops and his decisions. The worker would have to respect it if she wanted to work for him. They would start a new page, and he would make it as simple as possible.
Mr Peretz then set out the proposal for the worker’s hours and duties. He was “not your enemy”. They were going to work together, see each other and communicate. It was a business, and they would keep it as a friendly business relationship. If she was happy with that, he would see her next week, happy to have her back.
From 6:11pm to 6:16pm, the worker said Mr Peretz could not promise her 40 hours and not let her go to her appointment. It was a medical appointment. She saw this as him manipulating her. “This has not been an issue before now it is.” She saw it as he would give her 40 hours as long as she did not see her therapist.
At 6:18pm Mr Peretz responded in Hebrew, and the worker said, “English please”.
At 6:20pm Mr Peretz said that was the offer. There was no more discussion. He was done.

21 April 2023

At 1:13pm Mr Peretz said he needed an answer in the next hour. He could not wait until Sunday.
At 3:18pm Mr Peretz said he was sending a roster soon. He was not going to fit the worker in without an answer in the next 30 minutes.
Mr Peretz continued to press the worker for an answer.
At 4:52pm, he said the worker had until 17:00 to make a decision “and that’s it”.

23 April 2023

At 10:03am the worker sent a file (assumed to be a medical certificate).

Evidence of Tomer Peretz

Mr Peretz is the applicant’s retail manager, a shareholder, and director. His first statement, provided to an investigator retained by icare, is dated 19 June 2023, but was signed on
10 July 2023.
He had known BVO for approximately six to eight months. He interacted with her daily over the phone, more so during the very busy Christmas period. After Christmas, they spoke around three to four times per week.
He would describe their working relationship as good overall, especially in the beginning. There were some initial misunderstandings about the role. The worker had to learn the business in depth. She responded with some ups and downs and tried to cope for the most part. They wanted to bring her personality to the stores, as she had great energy and a good vibe.
The worker was in the Jewish community. They had an interaction in a bar through mutual friends. She asked for a retail position in around August 2022. He offered her a role.
During her first few weeks, BVO mentioned that she was going through a hard time with medical and family issues. She shared quite a lot. He was happy to help and listen. She said she had had cancer, and a close friend committed suicide.
The worker was seeking regular psychotherapy. He took that into consideration and catered the roster so she could go to her session every Monday at noon. Based on information given to him by Natali (BVO’s mother), the psychotherapist was a family friend and was helping them free of charge, hence the unwillingness/inability to change the weekly meeting.
The worker said her father was in hospital. He worked in an industry she could not talk about. She asked for days off to see him.
The worker “was on [his] back about hours all the time.” She got most of the hours, which were around 40 hours per week. She was working on average 38.15 hours per week. Given they had to compromise on her appointments, and she could not work Saturdays for religious reasons, they did everything to accommodate her.
The worker said her family was in financial trouble and she needed more money and more hours. She asked for advance payments “a lot”. They were happy to help. She mentioned she had anxiety issues, and issues with an ex-boyfriend.
BVO worked in the position of senior sales representative but wanted to be promoted quickly. She was team leader for the QVB. There was mention of being a retail manager for New South Wales, but it never came through.
The worker was good in terms of sales and energy. Customers loved her, and they loved her vibe. They were happy to have her.
BVO worked more than 90% of the time at the QVB. On occasion she would go to other stores to help with training, or if they needed extra staff. She was not at Green Hills for six weeks. It was about eight shifts in total.
Over the course of three weeks, on two occasions she had to stay overnight. They were not consecutive nights. She did not provide any evidence of travel and hotel costs, and therefore they could not reimburse her. They were “happy to pay if she provides a receipt.”
BVO was given formal verbal warnings for attendance. She was late to work 97% of the time. He kept bringing this up with her. There was nothing officially written.
There were performance issues where they had feedback from staff about the worker’s approach, ego, and operating instore. Her staff felt uncomfortable. On a few occasions he had to take her outside to say her behaviour was not appropriate.
Once they realised the “workers compensation thing was going on”, they tried to bring her back. He tried to contact her and never heard back. They only got a medical certificate.

BVO avoided him and contacted his business partner, saying she wanted to go back to work. She asked again for 40 hours. This was the week of Anzac Day. He could only give her 40 hours, including working Monday. She could not do Monday. She said she was happy to do 40 hours with minimal contact with him. When she realised the shift included working Monday, she sent back a medical certificate.
He did not swear at her. He kept his language clean with all staff. They spoke in English and Hebrew.
The worker found it hard to accept feedback. She would get loud and justify herself, raise her voice and get edgy.
She did ask him to come up and spray the cockroaches. He said to go to the shop, “you are a grown-up person, it’s only a cockroach and it won’t eat or kill you”. He said to use petty cash. He explained he “just can’t save you”. There was nothing he could do, as he was not there.
He did not yell at the worker. She would not let him get off the phone. He was assertive. He was not yelling abuse at her. He believed if he was shouting or swearing, another staff member would have complained by now. If he did do that, why would she keep working for another four months after the cockroach incident? Previous staff would just spray them. She called security “and made a big drama out of it.”
He did not remember this scenario (the reference to an employee sitting on the bench). He believed what he told the worker would be to tell them not to sit on the bench, please. He was assertive but not abusive. He had a managerial approach.
There was a conflict with a team member in December. He talked to them and explained that he wanted everyone to be happy and professional. The worker was not happy that he did not back her. She raised her voice and hung up on him. She said he was abusive and screaming over the phone. He apologised and said he would not do it again.
This was the only conflict he could think of they had had at night. They agreed they had both raised their voices, being a little disrespectful, and they resolved it.
On 16 April 2023, the second last day of the Show, the worker was around 35 minutes late.
He had a toolbox and there was a hammer in there. If any comment was made, it was a joke. Bianca and Charlotte were there. The hammer situation never happened.
“Stepping into” sales, happened a few times. He always said not to do it, as it was distracting and unprofessional. The worker did it many times.
The worker did it on this day. In the middle of a sale, she started talking to his customer about her dog. She left her sale and customer and came over to his customer.
He took the worker outside for coffee or lemonade and told her they had spoken about this, do not interfere. He asked why she had been late. He told her not to step into his sale, and he would do the same.
The worker was not eligible for a break, and they were very busy. She “started having a go” at him in front of customers and staff. If he remembered correctly, she did take her lunch.
The worker came back and asked why he had changed her timesheet. The reason was to put in her break and the sales since she came in. The bonuses were shared. It was important to document for contribution.
The worker did not document her shifts correctly. She constantly failed to report her correct hours and breaks. If she did not log breaks, she got paid more.
He explained that they were not having an argument about the timesheet, “not now and not here”. He told her she needed to take a 30 minute break. She was still arguing, telling him she was not going. He said to take a break or finish her shift and go home.
The worker left and never came back. She left her belongings in the shop. He expected her to come back in 30 minutes, or if not to let him know. She took her phone with her. She stormed off.
The worker called staff members constantly, and asked Bianca and Charlotte to take her things. She did not mention her puffer.
The girls mentioned that BVO was calling them to bring her stuff. He said they were busy and had customers, and to tell her to come there. It was OK, no one would say anything. She could take her stuff and go home. She kept calling for someone to take her stuff to her.
They took her bag out to her. He could not remember how long it was until they took it to her. After he came back from his break, Bianca took her bag. The worker kept calling, asking for another bag. He said to tell her to come and take it herself.
Nothing was mentioned about the puffer until later, when one of the boys told him. He said the worker needed her puffer. He asked if they knew where it was. He said to look for it or tell her to come and take it. They could not find it, and she kept calling Liraz’s phone.
He answered Liraz’s phone, as Liraz was busy, and the worker kept calling. He said they could not find her stuff and to come and get it. She hung up. The girls kept looking. They finally found it and Liraz took the puffer to her. She could have come at any time. “Nothing stopping her from coming to the shop. A big deal out of nothing.”
Liraz said the worker was outside next to the container, crying. “Container is loading dock.” He asked Liraz if she was OK. He said she was. That was the last day he saw her.
On the same day, he tried to reach out to her. She later sent a medical certificate and another after that. He tried to communicate with her and her mum.
About a week later, she engaged with one of their business partners. She wanted to go back to work and for them to accommodate her request.
He said he could not give her morning shifts because she was late. If they did not open on time, they would get fined, and the centre could ask them to move out. He tried to negotiate with her “and did everything on my end.”
The worker said she wanted 40 hours, and not to work Monday or Saturday. She started dictating her roster. They were happy to have her back, but not when she was dictating her roster. When she realised “that’s not happening”, she completely ignored his communication attempts.
He tried to approach the worker’s mum. She tried to help for the first few days. A week after, he tried calling her again and she did not reply.
They did not threaten the worker with court action. He was not aware of the communication between her and Heim. The last communication he had with her was on 23 April 2023.
The termination letter was sent on 10 May 2023, as they had not heard from the worker for two or three weeks.
Since the claim, the worker had contacted staff, trying to get them to vouch for her. They felt confused and manipulated. He told them they were free to give a statement if they wanted.
The business partners started to notice the worker’s behaviour towards him. The “border line for BVO and professional and personal towards me and [sic] lost its borders.” They felt she had loving feelings.
Heim said what he was describing was how he (Heim) argued with his wife, not his staff. Heim said he was right to put the border up. He would see BVO in the shop, and she would ask for a hug, “maybe wanting affection from me.”
Throughout her employment, the worker was seeking his attention and was not happy when she did not get it. She called three or five times a day for small things and with repetitive questions.
They had reason to believe that since the worker was happy to come back to work, she was desperate for funds. Her only way to get money was to exploit the system. Her claim at Fair Work was dismissed when they provided evidence that she was paid above the award rate.
He had been given Facebook pictures showing the worker was out and about partying. He could provide screenshots and the Fair Work documents.
Mr Peretz’s second statement is dated 15 April 2024. Much of it repeats his earlier evidence. Some of it takes the form of submissions.
He warned the worker on a number of occasions that her conduct could not continue, as it created disharmony. He forewarned her that performance management had commenced, and she would need to improve her conduct, approach, and attitude. She was aware that disciplinary action would take place if she did not change.
He learned that the worker’s claim that her father was in hospital was not accurate. He felt emotionally manipulated and was disappointed she felt she had to fabricate a story to receive attention.
When the worker worked at the QVB, he received a number of reports from staff about her erratic and assertive behaviour, which made them uncomfortable. He had a number of discussions with her, but she found it difficult to accept criticism or feedback.
At times when he was providing feedback, the environment got heated and voices were raised, but that was not a fight or a screaming match. They both acknowledged raising voices should not occur. The worker once called him late at night about work, as they sometimes had discussions after hours, but her attitude was so negative, and her approach was aggressive, so he hung up on her.
The worker frequently posted how happy she was at work. By her own action and admission, she was not mistreated at work. Her “happy” posting was inconsistent with her claim that she was bullied at work to the point of causing her injury.
He was not aware of the worker’s second bag or puffer, or that she suffered any medical episode or needed medical care. The bag was eventually located and delivered to her without delay.
He acknowledged in hindsight that the worker wanted access to her bag. This could have been resolved much quicker if she had called his mobile, rather than ask very busy staff members to vacate their position and look for her bag during the busiest time of the day.
St John Ambulance (St John Ambulance Australia) volunteers were present at the Show and could have attended to the worker’s medical needs.
He did not behave in a manner that was abusive, threatening, aggressive, or adverse towards the worker. His intention was to assist a person both financially and mentally in need.
His relationship with the worker deteriorated because of her constant tardiness; lack of cooperation; constant breach of business practices and policies; aggressive conduct; inability to accept, and response to, feedback; and abandonment of her position.
The worker was not promoted to regional manager within two weeks. She was promoted to team leader for the QVB store.
The worker was not working 40 to 50 hours per week. She worked approximately 35 to 40 hours.
The worker exaggerated the incident with the cockroaches. He did not scream at her.
On production of invoices or receipts, the worker would be reimbursed 100% of the expenses she incurred attending Green Hills.
There was no incident regarding a staff member sitting on the counter.
It was a “blatant lie” that he screamed at the worker and told her to “get the F out of the store” at the Show. This was to detract from the fact that she lost control after being advised that her timesheet had to be changed because she was late again.
He denied the incident with the hammer. He had a toolbox at the store, but he never used any tool as a threatening device, or hinted he would use any tool against an employee. “This is an outrageous and defamatory allegation.”
It was untrue that he refused to give the worker her bag that contained the puffer. He was not aware that it contained the puffer or that she was suffering an asthma attack. She had two bags. One was delivered to her. They could not locate the second bag. When it was located, it was delivered to her.
The incident of 16 April 2023 was all the worker’s wrongdoing, starting from being late on six days, refusing to accept an explanation for the record being corrected, raising her voice and being argumentative, then storming out.
The worker exaggerated and distorted the facts to suit her agenda and narrative. She created incidents where none occurred, and described them to her treating physicians, who must believe her, as they had no way to verify the information. She was manipulative and found the truth hard to deal with. Her evidence could not be trusted.
The worker was very active and frequently attended Open Mic events. She was displaying her art on stage and leveraging social media for promotion and sales. Her conduct was inconsistent with her claims that she was unable to work.
He referred to the WhatsApp printouts of the worker negotiating on 20 April 2023 to be rostered for 40 hours per week.

Termination of employment

On 10 May 2023, at 12:53am, Mr Peretz emailed the worker to advise of the immediate termination of her employment.
The decision was stated to be due to the worker’s failure to communicate during off-hours, specifically her repeated failure to respond to critical messages.
“Furthermore”, the applicant had previously addressed disciplinary issues, regarding consistent lateness, as well as her behaviour, specifically related to arguments or discussions with her supervisors in front of staff. They had reached a point where they could not tolerate this kind of behaviour, especially after recent incidents at the Show.
The worker had not provided any notice of termination, which was a violation of company policies. The applicant was exercising its right to terminate her employment with immediate effect.

Evidence of Gabby Rose

Ms Rose is a store manager, employed by the applicant. Her statement is dated
15 April 2024.
Her interaction with Tomer Peretz was mainly as her manager and part owner of Memory Block. He and the worker trained her to become the manager at Green Hills.
Her time with Tomer had at times been challenging because of his management style, although extremely rewarding and beneficial. They communicated mainly through phone calls.
When Tomer visited the store, it was always a lot of fun and laughs. He was kind and generous and wanted to see his staff flourish. He pushed for greatness and taught everything he knew. He noticed when staff was having off days and did what he could to make them feel comfortable to seek assistance if they needed.
Tomer would go out of his way for his employees. He had taught her a lot in the year she had been employed and given her opportunities. He had made her a better manager. Some of his criticisms could be tough and hard to hear in tone, because of his assertiveness and passion.
At times, due to work pressure, conversations could be tense, but Tomer always found a way to meet in the middle. He was quick to apologise when he came across assertive/passionate, and was always the first to express his intentions, which helped create a sense of understanding.
She found the worker to be highly motivated, with high energy. She was a very good salesperson who achieved great results. She was knowledgeable and very helpful.
She was not present at the Show. After the Show, she noticed the worker was no longer on the group chat. When she enquired, she “received a vanilla response”, so she did not push it.
Some time after the Show (a few months later) she received a WhatsApp call from the worker. The worker was nice at the start of the conversation, as she always was, but sounded extremely upset. The worker made sure she was not recording the conversation. She found this worrying and confusing.
The worker explained events that occurred at the Show with Tomer and asked her for a statement about her time at the company. She explained that it made her uneasy, and she could not comment on a situation when she was not physically there, and while being employed with Memory Block.
The worker explained she had spoken to numerous staff from the Sydney locations and was getting statements by them. The worker was frustrated that she would not write a statement.
The conversation made her uncomfortable and angry that she was being asked to be involved after the worker had not spoken to her in months and did not return calls or messages.

Evidence of Charlotte Kammerer

Ms Kammerer is employed by the applicant as a sales representative. Her statement is dated 15 April 2024.
Her experience working for Memory Block had been positive, rewarding, challenging, and had provided her with opportunities to succeed, learn, and grow.
She worked closely with Tomer Peretz. His management style could come across as assertive and demanding, but she understood the need for strict discipline in a demanding retail environment, and the need for a cohesive and cooperative team.
She found Tomer’s management style motivating. He understood work life balance. He used group chats to create a motivating, supportive and fun vibe. He sent encouraging messages that sometimes included challenges to reward hard work. He often used humour to soften messages and create a relaxed atmosphere.
In her experience, if Tomer used harsh language, or was demanding because of work requirements, he would approach her to discuss the situation, ensure everything was OK, and they had an open line of communication. She felt he had a lot of respect for her and other employees.
She worked with BVO at the QVB and other stores. She found BVO to be bubbly, confident, and energetic.
BVO often commented on how much she loved working for Memory Block. She often put up videos and photos on the group chat of herself selling. There were times she found the videos inappropriate.
BVO always spoke highly of Tomer and their friendship. She felt comfortable telling Tomer anything and had told him a lot about her personal life. It was clear she trusted him. She went to extreme lengths to help him out with anything she could.
BVO was a very good salesperson. She often produced very high results. She felt this caused BVO to feel and behave in a superior manner towards other employees. BVO would often speak down to her and was critical of how she conducted her sales. She often spoke as if she was one of the owners.
When she arrived at the Show on 16 April 2023, there were four others there, including Tomer and BVO. She could feel tension in the air. Tomer and BVO were speaking, but because they spoke a different language, she could not understand.
She then saw BVO leaving. Shortly after, she started receiving calls from BVO asking for her bag. The stand was very busy and Tomer directed them that if BVO wanted her bag, she could collect it, or call him. BVO stated she would not call Tomer.
After about 10 minutes, she asked Bianca to take BVO’s bag to her. BVO sent her location, the loading dock.
BVO continued to call, asking for her other bag, which contained a puffer. There was no other bag in the store that they could see. They looked as a team and could not locate it.
Shortly after, either Liraz or Tomer located the bag and Liraz delivered it to BVO.
Following the Show, she realised BVO was not attending shifts. Two to three weeks after, she asked BVO if she was OK. BVO asked her to call her.
In their call, BVO said words to effect:
(a)     on the day of the incident, she was having an asthma attack and her therapist called an ambulance;
(b)     the company did not have workers compensation insurance, and this should worry her if she continued to work there;
(c)     she needed to get out whilst she could;
(d)     Tomer and Shay changed the roster so they could get rid of hours she was owed;
(e)     she was concerned the conversation was being recorded. Tomer called her mother, and she was concerned he recorded the conversation to be used against her;
(f)      she was mentally ill and could not leave her bed due to stress Tomer put her in. She found this hard to believe as she followed the worker on social media and saw snippets of her at the beach and with friends;
(g)     Tomer had left her in a bad financial position, notwithstanding his knowledge of her personal life and need for money, and
(h)     to keep the conversation secret and not tell Tomer, and she would do the same.
The conversation left her feeling anxious and doubtful about Memory Block and Tomer, despite having worked there for three years, trusting Tomer and the owners, and loving her job.
She felt manipulated, as BVO used her own emotions against her and created this doubt and anxiety. She considered resigning.

Approximately two weeks later, BVO asked her to call her, and she felt very uncomfortable doing that. BVO then messaged that she was not well and thinking of admitting herself to hospital. She called BVO, who tried to persuade her to meet with her and other staff and collect statements. This did not occur. She had not spoken to BVO since then.

Medical evidence

Bondi Junction 7 Day Medical Centre

On 19 September 2016, Dr Fay Sinn recorded that the worker had been seen by Dr Granot, who wanted her to see a psychologist. She had been seen by a psychologist, Jane Phillip, in 2014 after a motor vehicle accident.
Dr Sinn noted the worker had difficulty in high school, with bullying and trouble fitting in. She slept a lot but was always tired, felt flat/tired and poorly motivated. Her thoughts did not seem to have clarity.
The worker had recently broken up with her fiancé. She was having symptoms of seizure that were under investigation with a neurologist.
Dr Sinn’s impression was “anxiety and depression/? PTSD/complicated medical problems.”
On 29 September 2016, Dr Sinn recorded that the worker was seeing a psychologist, who felt she had anxiety/depression/psychosis.
On 3 July 2017, Dr Hany Ibrahim recorded anxiety, stress, depression, and insomnia. The worker was waiting to see a psychiatrist. She was being stalked by her “ex”. She was seeing a psychiatrist. She was prescribed Valium.
On 27 April 2021, Dr Stuart Morris recorded that the worker was “in situation”. She needed to go to court and needed a support person. “Partner in court room”. She had a background anxiety disorder.
On 27 July 2021, Dr Morris recorded dizziness, “lots of stress”. “Started after domestic violence”. The worker was to consider a psychiatrist and clinical psychologist.
On 19 August 2021, Dr Morris recorded that the worker needed a medical certificate. “Stressed. PTSD symptoms.”
On 24 February 2022, Dr Morris recorded that the worker was mentally a lot worse. She was just out of an abusive relationship. A friend had passed away from cancer. A friend passed away in June last year. She was stressed and felt down and depressed. “Anxiety”. She was seeing a psychotherapist who was a GP (general practitioner). Dr Morris recorded suicidal ideation.
On 5 August 2022, Dr Morris recorded that the worker’s mood was good on Pristiq. She still had sleep issues.
On 17 April 2023, Dr Shobha Chippada recorded “boss got passive aggressive yesterday – led to severe panic attack.” The worker’s psychotherapist prescribed Valium, which she was taking.
On 21 April 2023, Dr Ravi Dhawan recorded that the worker had anxiety and panic attack. She had a panic attack last night. “Workplace issues”.
On 1 May 2023, Dr Jim Aroney recorded severe mental stress issues.
On 9 October 2023, Dr Morris recorded that the worker attended with her dog. There were ongoing issues with work. She had been off work on WorkCover “since”. This was her first time out of the house since April.

Dr Gwenyth Francis – GP

Dr Francis’s records commence on 13 September 2021. I do not intend to refer to every entry.
In 2021, there is reference to the worker’s father being arrested again and being in gaol pending a bail application. He had later developed COVID-19 and was going to hospital for treatment.
The worker had had relationship issues throughout her life, including a history of abusive relationships. She had experienced repetitive CSA (child sexual abuse) when she was very young.
Dr Francis recorded diagnoses of dyslexia, dysgraphia, Aspergers and ADD (attention deficit disorder) and how they had influenced the worker’s life. She problem solved well and quickly, and this made her a really good businessperson. Sometimes the diagnoses caused social issues but on the whole she developed good friendships.
There is a record of a relationship breakup in September 2021, when the worker was “having difficulty letting go.”
On 18 October 2021, Dr Francis recorded a discussion regarding depression. It was also possible the worker was burnt out by years of chronic stress and trauma. She had on the DASS (Depression, Anxiety and Stress Scale) severe depression, very severe anxiety, and moderate stress.
On 25 October 2021, Dr Francis recorded that the worker needed to talk about the suicide of a friend in June. She had had five people of importance to her die in the last 10 months.
There was a discussion about the worker’s depression. Some of it would be grief, but there was evidence of it before her friend committed suicide, which could be accumulated grief and the stress of events in her life.
On 17 January 2022, Dr Francis recorded a long discussion regarding relationship difficulties. The worker had finished a relationship. She became manic.
Dr Francis opined that the “manic” state sounded like severe distress and agitation, and not true mania. The worker’s last episode was at 23, after a miscarriage and “coming down from a bad drug trip.”
On 24 January 2022, Dr Francis recorded that the worker was going OK. She had resigned from the shop due to poor pay and some staff conflict. She had met with her boyfriend, and they would remain friends.
Dr Francis recorded that the worker’s mother was subject to volatile rages and was very abusive and demeaning to her. The worker had “severe boundary issues.” She had given her parents up to $100,000 and was about to give them $30,000 of her savings. She had no choice as they did not have enough money.
On 31 January 2022, the worker discussed with Dr Francis “very blurry red flags” in a relationship. Dr Francis advised that it was important she dealt with it and ensured her boundaries were respected.
On 18 April 2022, Dr Francis recorded that the worker was clear she would move to Melbourne as soon as possible. Her parents may also move there. There was a Jewish community there and she had many friends. She had to have a regular job that was well-paid, as her parents’ financial dependency was increasing.
On 16 May 2022, Dr Francis recorded that the worker had been experiencing manic responses a number of times a day. She would like to admit herself to hospital but needed someone to call on her parents daily. The only person available was her ex-partner, and she was concerned about letting him back into her life to this degree.
On 13 June 2022, Dr Francis recorded (by telehealth) that the worker was ready to talk about her suicidal ideation, her plan, and the motor vehicle accident, but needed to do that face to face.
On 27 June 2022, the worker was “really struggling” and believed she needed to be in hospital. She felt very depressed and struggled to get out of bed. She was highly anxious and tending towards agoraphobia. She was having nightmares that she related to growing up in Israel in a war zone, and flashbacks that she related to domestic violence. She would have to go to a public hospital as she had no health cover.
On 11 July 2022, Dr Francis recorded that the worker had begun to think life was not worth living. She was helped by a counsellor at Lifeline. He suggested she start the medication she had been prescribed three months ago. She felt Pristiq had made a significant difference and no longer felt the need for hospital.
On 18 July 2022, Dr Francis recorded improvement. The worker was less tired, finding it easier to face the day, coped better with rumination, and related better to her parents. She felt able to start looking for work, as she needed financial stability.
On 25 July 2022, Dr Francis recorded that the worker was going really well on Pristiq. Her anxiety was almost resolved, and her depression had improved 40%. She had no more despairing moments and no need for hospital.
In August 2022, the worker’s grandmother was dying of cancer in Israel, and she would go there in December. Her grandmother was in many ways difficult and unpleasant, but she felt a strong sense of being loved by her, which was very important to her.
On 15 September 2022, Dr Francis recorded that the worker needed to talk about the many complexities of her childhood, life in Israel, and the move to Australia. She had increased her dosage of Pristiq but felt edgy and nauseated, so Dr Francis suggested reducing it. Work was going well, and the worker was happy she was being so effective.
On 26 September 2022, Dr Francis recorded that the worker was off work as she was not well. She still felt some anxiety and depression but believed she could manage it. Work was going well, her productivity was appreciated, and she was in line for a promotion.
On 10 October 2022, Dr Francis recorded that work was going well but the worker had an episode of conflict with a staff member “where he was yelling ++ at her which is very triggering of her childhood trauma.” She did not enter the conflict but took it to her boss, who handled it fairly well. The relationship was subsequently going well.
On 24 October 2022, Dr Francis recorded the worker was going well at work. She had had some difficult issues but felt they had been settled. Her boss yelled at her, and she advised him if he did it again, she would leave. She intended to leave if he yelled again, as she could not work with that treatment. “Discussion re managing her triggering response.”
On 31 October 2022, Dr Francis recorded that the worker stated she would have to leave the job if the [boss’s] behaviour was recurrent, as the yelling was very triggering, and she became overwhelmed.
On 17 November 2022, Dr Francis recorded a discussion about difficult family circumstances that had arisen. The worker was stressed and concerned, and felt she was in a state of shock and had not processed the events as yet.
On 2 December 2022, Dr Francis recorded that the worker had difficulty getting up and was always late for work. Work was going well, and she was meeting targets. She needed to talk about her boss and the fact that he regularly yelled at her. She became triggered and distressed. She had been unable to negotiate a change. He stated he only yelled and pushed her so she could reach her full potential. This approach did not work, it depleted her.
The worker stated that she had once hung up on her boss because she was overwhelmed, and he rang back and apologised. She would consider if this was the best way to look after herself in the future.
On 19 December 2022, Dr Francis recorded that the worker had quite significant conflict with her boss when he became aggressive and controlling, from her point of view, and took over with her customers. She had advised him she would leave if it continued. Her family situation was going reasonably well, and they were managing better than she thought they would.
On 23 January 2023, Dr Francis recorded that the worker was enjoying work and managing quite well. She had had an episode with her mother but was able to put in a boundary and remove herself.
The worker had finally come to accept that she carried significant trauma from her childhood in Israel, and in Australia, where there had been a motor vehicle accident, domestic violence “etc”.
On 6 February 2023, Dr Francis recorded that the worker had resolved the conflict issue with her boss, and made it clear she would not tolerate abusive talk and would actually leave. She had a much better self-care and boundary system since therapy.
On 27 February 2023, Dr Francis recorded that the worker continued to be exceptionally tired. Her work performance had dropped, and people noticed. She was working well, but not at her previous high productivity. It appeared that her problem was anxiety.
On 6 March 2023, Dr Francis recorded that the worker had been given very good feedback about her work, and ideas for management and training. She felt happy and positive. Her DASS indicated very severe anxiety and depression and moderately severe stress. The stress was likely to be related to her family situation and the job campaign for Valentine’s Day.
On 20 March 2023, Dr Francis recorded that the worker’s fatigue remained quite marked. She had advised her boss and he had removed some of her workload.
On 5 April 2023, Dr Francis recorded that the worker stated she was stressed and had decided to “quit her job”. This was surprising, as she had been doing well. Her boss “was very demeaning to her”. He had offered to take her and a female friend out for dinner, after they had a difficult experience when her car broke down. Her friend cancelled, and the boss cancelled because “he could not bear the thought of dining with her alone”.
The boss went on to say she was a terrible worker, and her output was poor. She was very shocked and distressed. The relationship was too toxic for her to continue to work for him and she would quit after Mother’s Day. She had already been looking at other jobs.
On 16 April 2023, Dr Francis recorded that the worker had rung in great distress. She was having trouble breathing. She sounded significantly breathless. She stated she had had “a dreadful experience with her boss who was verbally abusive and intimidating”.
The worker became so distressed she had to leave and left without her puffer. She was alone in the complex. She felt she had a mix of a panic attack and asthma, but her boss had refused to let anyone bring her puffer.
The worker was very distressed and upset by what had been said, and felt shamed, fearful, and frightened as she had no access to her medication.
The worker’s breathing was of concern, and Dr Francis advised her to hang up and call an ambulance. She rang the worker back to check, and there was no answer. She then contacted the ambulance and no call had been placed, so she placed one.
The worker rang to say she was improved. Dr Francis advised she had given the worker’s number to the ambulance, and they would ring her.
On 17 April 2023, Dr Francis checked with the worker. She said she was OK and saw the onsite paramedics. Ollie drove her home and she was planning to see her GP today. She would self-admit to hospital if she was still distressed and not managing.
On 24 April 2023, Dr Francis recorded that, during the panic attack, the worker sat for three hours in a tightly clenched position, feeling terrified. She thought she would die.
The worker stated that her boss told others she was over-reacting, and they did not bring her puffer for a long time. The paramedics told her she could have died. Security advised her to report it to the police, but she felt in too much of a state to make that decision.
Dr Francis recorded that the worker had a panic attack on Thursday as she got a message from her boss. The worker referred to the messages I have extracted above.
“Apparently”, the worker’s boss had told everyone she got up and left after speaking out of line. She felt “petrified” of leaving home, returning to work, dating anyone, or trusting people. She regularly felt she would break down and cry and described herself as mentally broken. She felt like giving up but was not suicidal.
The worker described some of her boss’s behaviour. He once whacked a cowboy hat she was wearing as a joke, but it forced her glasses down on her nose, resulting in a bleeding nose. He had another time indicated with a hammer that he needed it to make her behave. This was meant as a joke, and she took it as such, but was a little intimidated. She described frequent argument and conflict.
There was only one safe social venue the worker would consider, which was an Open Mic run by a friend. She was reluctant to leave the house, felt terrified, and could not face going out without the dog.
On 10 May 2023, Dr Francis recorded that the worker had sent her a text as she was distressed and anxious and had been unable to sleep.
Tomer had started sending her voice messages trying to get her back to work. He threatened her with a lawyer and blamed her for what had happened, as it was her fault, and she was exaggerating.
At 1am, the worker received a letter of immediate termination. She was scared and did not know what to do. Her mother stayed up with her until 3am to calm her down.
On 19 May 2023, Dr Francis recorded that the worker had started doing artwork to help deal with her emotions. She was still having nightmares and dreams about Tomer. The nightmares were of them arguing all the time. She also had flashbacks of all the times they had “big blowups”, and felt scared, anxious, and overwhelmed.
The worker stated they could argue three to four times a day. She stayed because of the times he was good to her, and felt manipulated. With his anger episodes, she developed insomnia and anxiety about going to work, which sometimes made her late.
The worker was triggered by his anger on that day, saying she spoke out of line, and felt so pushed by his constant anger she had a screaming match with him.
The worker believed she should have been more professional but was exhausted by two weeks of hard work at the Show and his “constant horrible nastiness throughout the day.” There were times when he was “aggro” but when no one was around, or if others were around, his abuse would be in Hebrew.
On 22 May 2023, Dr Francis recorded that the worker had been told by colleagues that Liraz had lied about went on, and Liraz and Tomer had hidden her bag, because they thoroughly searched the place where it was later found. The worker felt betrayed, but well supported by colleagues and friends.
The certificate of capacity (COC) issued by Dr Francis on 26 May 2023 is consistent with the worker’s account of events on 16 April 2023.
On 29 May 2023, Dr Francis wrote to an “admitting doctor” regarding the worker’s admission.
Dr Francis reported that the worker was experiencing an acute stress disorder, severe depression, anxiety with panic, agoraphobia, and insomnia with nightmares.
This acute stress arose out of an abusive experience at work. The worker’s depression remained severe. She could only leave the house if she was accompanied by her dog.
On 30 May 2023, Dr Francis recorded that the worker had contacted two hospitals, but they only took patients who were suicidal. Icare would cover a private hospital.

St John Ambulance Australia (St John Ambulance)

The worker’s patient record on 16 April 2023 is difficult to read.
The history recorded was that the worker presented at 5:15pm saying she was having a panic attack. She was having a stressful day at work.
The worker was reassured, and the officer waited until she had calmed down.
It appears that it was at 6:10pm that the worker’s cousin, Ollie, presented to take her home. She was relaxed, settled, compliant, did not look distressed or exhibit erratic behaviour. She stated she felt safe with her cousin and was heading home to rest. Her mother would be there.

Dr Karthik Modem – psychiatrist

Dr Modem was qualified by the first respondent and reported first on 10 July 2023.
Dr Modem took a comprehensive personal and family history. He noted that the worker was under the care of Dr Francis.
Dr Modem recorded that the worker’s boss was “in a mood” when she arrived at work on 16 April 2023. The worker told him about an incident with a hammer. He noted the worker’s account of subsequent events that day.
Dr Modem recorded the worker’s symptoms, including that her sleep, appetite, and mood were severely affected. She reported increased anxiety and worry. She was constantly worrying about work and the stress.
The worker cooperated with the interview and did not seem guarded or evasive/challenging. She described her mood as “anxious and depressed”.
Dr Modem diagnosed the worker with adjustment disorder with mixed anxiety and depression. There was a background of complex relationship issues, with domestic violence in two relationships. The worker also reported grief and loss issues from losing a dear friend.
Dr Modem opined that the worker’s employment with the applicant was the main contributing factor to her injury. She reported previous psychological episodes. She had been functioning optimally until she experienced the allegedly stressful incidents at work.

The second respondent submitted that there was a period of two hours when she was without something that would have addressed a medical issue, but was too anxious, to put it mildly, to go back and get it.
The second respondent submitted that Mr Peretz was aware she was in trouble, she was not far away, had a pre-existing condition, was after her things, and he did not even go outside to see how she was.

SUMMARY

Injury

I am satisfied that BVO has sustained a psychological injury arising out of or in the course of her employment with the applicant. The date of injury was 16 April 2023. I accept Dr Modem’s evidence that the injury was not an aggravation, acceleration, exacerbation, or deterioration of a disease.
As the first respondent submitted, the focus should be on the events of 16 April 2023. It is clear from the evidence of both the worker and Mr Peretz that there was conflict between them on that day at the Show.
The second respondent’s evidence about events on 16 April 2023 is corroborated by the contemporaneous evidence of Dr Francis. That she had had a stressful day at work, and thought she was having a panic attack, is supported by the contemporaneous evidence of St John Ambulance. Her evidence is also corroborated by the message she sent Mr Yafe that night.
That the worker had left the store at the Show without her bags, including the bag that contained her puffer, is corroborated by the WhatsApp messages. Liraz saw her crying, objective evidence of her distress.
As the second respondent submitted, it is not material to my decision whether her bag was put somewhere that it could not be found. She was without it, and the WhatsApp messages confirm that she asked several times that it “please” be brought to her.
Mr Peretz stated that he did not know the worker was without her medication. It is clear, however that he did not want any of the other staff to take her bag to her. He stated that she could have come back for it at any time, “A big deal out of nothing.”
The applicant submitted that the applicant’s anxiety, depression, and stress disorder were elements of her pre-existing condition, and not work injuries. The difficulty in accepting that submission is that there is no medical evidence to support it. The medical evidence in this matter is to the contrary.
The applicant submitted that, even if some of the incidents occurred, they did not contribute to the worker’s injury, again without any supporting medical evidence. That is not an inference that may be drawn without medical evidence that addresses the issue. [3]
[3] Strinic v Singh [2009] NSWCA 15.
In Attorney-General’s Department v K,[4] Acting President Roche, as he then was, after discussing the authorities, said the following (at [52]):
“The following conclusions can be drawn from the above authorities:
(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b) 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 (Spigelman CJ in Chemler at [54]);
(c) 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 (Basten JA in Chemler at [69]);
(d) 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 (President Hall in Sheridan[5]);
(e) 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’ (Von Doussa J in Wiegand[6] at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”
[4] [2010] NSWWCCPD 76; (2010) 8 DDCR 120.
[5] Leigh Sheridan v Q-Comp [2009] QIC 12; 191 QGIG 13.
[6] Wiegand v Comcare Australia [2002] FCA 1464.
Roche AP went on to say, at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend on his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportionate…’” (Emphasis added).
At least some of the events complained of by the worker occurred. Mr Peretz has said both that if a comment was made about the hammer, it was a joke, and that the hammer situation never happened. I find difficult to reconcile the two statements. In any event, the worker said she brushed it off and kept working. It does not appear to have been of particular significance to her at the time.
It is clear from the evidence that Mr Peretz spoke to the worker about “stepping into” his sales; he believed she was not eligible for a break, although she took one; and there was then the argument about her timesheets, after which she left the store.
Mr Peretz denied having sworn at the worker. Ms Kammerer’s evidence is that she did not understand the language they were speaking. There is no evidence from Ms Jones or Liraz, who were both in the store.
Ms Rose, whose evidence is largely supportive of Mr Peretz, nonetheless described her time with him as at times challenging because of his management style. Some of his criticisms “could be tough and hard to hear in tone”, which she attributed to his assertiveness and passion.
Ms Kammerer’s evidence is also largely supportive of Mr Peretz, but she also stated that his management style could come across as assertive and demanding. She said that “if Tomer used harsh language”, he would discuss the situation with her, which suggests that he did in fact use harsh language.
Mr Peretz has conceded that he was “assertive”. On at least one occasion, he apologised to the worker after they had both raised their voices in a phone call. Dr Francis had recorded incidents of aggression from the worker’s “boss” as far back as October 2022, well before the events that gave rise to her claim for compensation.
I do not believe it is necessary to determine whether or not Mr Peretz swore at the worker on 16 April 2023. It is possible to accept some of a witness’s evidence, without accepting it in its entirety.[7] I accept that there was a heated exchange.
[7] Chanaa v Zarour [2011] NSWCA 199.
The applicant submitted that the WhatsApp messages from Ms Kammerer and Ms Jones to the worker on 16 April 2023 were just an indication that what had happened was sad, but they certainly supported that the worker was distressed.
The worker’s past psychological issues may have increased her vulnerability, as opined by Dr Modem, but he accepted that she sustained injury arising out or in the course of her employment on 16 April 2023.
The worker’s reaction to the events may also not have been “rational, reasonable and proportionate”, but it was not required to be. Her perception of real events was that they created an offensive or hostile working environment.
The applicant maintained that the worker made a claim for compensation because she did not persuade Mr Peretz to give her the hours she needed, and because she was dismissed.
However, the worker was certified as having no capacity for work from 16 April 2023 to 8 May 2023, inclusive, albeit that the medical certificates were not COCs. She was certified as unfit for work at the time Mr Peretz was contacting her about returning to work.
In any event, the fact that a worker may believe she has capacity for work, or a certain type of work, does not mean she has that capacity. In Boral Recycling Pty Ltd v Figueira[8] Roche AP, as he then was, held that, even if a worker’s subjective view is that he or she is fit for certain jobs, this had to be weighed against other evidence, including in respect of the nature of the injury, its consequences, and the medical evidence.
[8] [2014] NSWWCCPD 41.
I do not accept the submission that the worker made a claim because she was not given the hours she needed, or because she was dismissed. She had sustained injury on 16 April 2023, and subsequently decided to make a claim, as she was entitled to do.

Substantial contributing factor

Section 9A of the 1987 Act provides:

“9A No compensation payable unless employment substantial contributing factor to injury

(1) No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note : In the case of a disease injury, the worker's employment must be the main contributing factor. See section 4.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination)--
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker's life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker's lifestyle and his or her activities outside the workplace.
(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker's injury merely because of either or both of the following--
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker's death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

The Court of Appeal held in Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited[9] that for employment to be a “substantial contributing factor” to the injury for the purposes of s 9A, the causal connection must be “real and of substance.”
[9] [2009] NSWCA 324.
The medical evidence is all one way. The causal connection between the events of 16 April 2023 and the worker’s injury was real and of substance.
Dr Modem opined that BVO’s employment was the main contributing factor to the injury.
The requirement that employment was the main contributing factor to the injury applies to “disease” injuries. A finding that employment is “the main contributing factor” to an injury involves a more stringent connection with the employment than the requirement that the employment concerned be “a substantial contributing factor.”[10]
[10] Secretary, Department of Education v Dawking [2024] NSWCA 4.
Taking each of the matters in s 9A(2) in turn:
(a)     The time and place of the injury:
The injury occurred on 16 April 2023 at the applicant’s store at the Show.
(b)     The nature of work performed and the particular tasks of the work:
The worker was a senior sales representative, and her tasks were the usual tasks of such employment. She was performing those tasks when the injury occurred.
(c)     The duration of the employment:
The worker commenced work for the applicant in August 2022. The duration of her employment is not relevant.
(d)     The probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if she had not been at work or had not worked in that employment.
I have already referred to the medical evidence, which I accept. The worker may have been vulnerable to psychological injury, but there is no evidence to suggest the injury would have happened had she not been at work or worked for the applicant.
(e)     The worker’s state of health before the injury and the existence of any hereditary risks:
The same reasoning applies to this matter as to s 9A(2)(d).
(f)      The worker’s lifestyle and her activities outside the workplace:
There is nothing to suggest that either the worker’s lifestyle or her activities outside the workplace contributed to her sustaining the injury.
The worker’s employment was a substantial contributing factor to the injury she sustained on 16 April 2023.

Section 11A

Section 11A of the 1987 Act 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.
(3) A
‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(6) This section does not extend the definition of
‘injury’ in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)--
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”

The applicant relies on its action with respect to performance appraisal and/or discipline. It maintains that the worker’s injury was wholly or predominantly caused by its reasonable action.
An employer that seeks to make out a defence pursuant to s 11A of the 1987 Act bears the onus of establishing the defence: Pirie v Franklins Ltd[11] and Department of Education and Training v Sinclair.[12]
[11] [2001] NSWCC 167; (2001) 22 NSWCCR 346.
[12] [2005] NSWCA 465; (2005) DDCR 206.
“Predominant” means “mainly or principally caused”.[13]
[13] Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92.

Performance appraisal

In the matter of Dunn v Department of Education & Training,[14] Geraghty J referred to his own decision in Irwin v Director-General of Education,[15] in which he observed that a performance appraisal should be formal, somewhat like an examination or a test, rather than an extended and continuing assessment.
[14] [2000] NSWCC 11; (2000) 19 NSWCCR 475.
[15] NSWCC, No 14068/97, 18 June 1998, unreported.
There is no evidence that the worker was ever subject to any formal performance appraisal. In his first statement, Mr Peretz said that she was given formal verbal warnings for attendance. There was nothing in writing. Mr Peretz also said that on a few occasions he took the worker outside to say her behaviour was not appropriate. Again, there does not appear to be anything in writing.
In his second statement, Mr Peretz said that he had “forewarned” the worker that performance “management” had commenced, and disciplinary action may follow. This was not mentioned in his first statement. Once again, there is no written record of any advice to the worker that performance “management” had commenced.
As the second respondent submitted, performance appraisal required more than an employer saying in hindsight that it had happened. The worker has given no evidence that she was aware of any formal performance appraisal being implemented.
I do not accept that the worker was in fact subject to performance appraisal, but even if that were the case, her injury was not wholly or predominantly caused by the applicant’s action regarding her attendance or behaviour.
There is no medical evidence to support the contention that the worker’s injury was wholly or predominantly caused by the applicant’s action with respect to performance appraisal.
In Hamad, Deputy President 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.”
As in Hamad, there were a several potentially causative factors raised in this matter. There is no medical evidence to support the assertion that the worker’s injury was wholly or predominantly caused by the applicant’s action with respect to performance appraisal. The medical evidence is to the contrary.
Given the conclusion I have reached, it is not necessary that I determine the reasonableness of any action taken by the applicant.

Discipline

The word “discipline” was defined broadly by Neilson J in Kushwaha v Queanbeyan City Council[16] as meaning learning by instruction, and the maintenance of that learning by training, exercise, or repetition; the narrow meaning of punishment or chastisement is secondary to this broader meaning.
[16] [2002] NSWCC 25; 23 NSWCCR 329 (Kushwaha).
The broad definition of discipline has come under scrutiny in light of developments in statutory interpretation.
In George Weston Foods Ltd v Bogdanoski[17] Roche DP said at [173]:
“Even if it is accepted that the definition of ‘discipline’ in Kushwaha is correct, which is open to serious doubt in light of recent authorities on statutory interpretation, there is no evidence that ‘learning and instruction’ imparted to Ms Bogdanoski was the whole or predominant cause of her psychological injury.”
[17] [2011] NSWWCCPD 62.

The first respondent submitted that it was possible that some of the events on 16 April 2023 might fit the definition of “discipline”, but others might not.
Taking the broad definition of “discipline”, it is possible that the conversation between Mr Peretz and the worker about her “stepping into his sale” may be said to qualify as “discipline” (although it is doubtful) but the worker went back to work after they had gone for coffee.
The next issue on 16 April 2023 arose when the worker wanted to take a break. Mr Peretz did not believe she was eligible for a break, and they were very busy. That could not be said to constitute “discipline”; and the worker returned to work after the break.
The final issue involved the worker’s timesheets, and it was after that that she left the store in distress and was later found by Liraz crying. That issue, also, could not be said to constitute “discipline”. The applicant submitted that Mr Peretz did not reprimand her, but told her to take a break, so the narrow meaning of “discipline” also would not apply.
As the first respondent submitted, the application of s 11A would in any event again fail, because the applicant did not have medical evidence to support its assertion that the worker’s injury was wholly or predominantly caused by its action with respect to discipline. The above comments regarding Hamad apply.
The applicant has failed to establish that the worker’s injury was wholly or predominantly caused by its action with respect to discipline.
It is therefore unnecessary that I consider whether the applicant’s action was reasonable. However, had it been necessary to do so, I would not have found it to be so.
The applicant knew the worker was a vulnerable person, with “special needs”. There had been several difficult interactions between her and Mr Peretz on 16 April 2023. She left the store without her belongings. When Liraz told Mr Peretz where she was, and that she was crying, he did not go to her to enquire about her welfare, or whether she nee His action could not in my view be said to be reasonable.

Dismissal

As noted above, the applicant ultimately did not rely on its action with respect to dismissal. Had it been necessary to determine the issue, the applicant would not have succeeded, as the second respondent’s injury occurred before her employment was terminated.
The applicant has failed to persuade me on the balance of probabilities that the notice should be dismissed or that the amount to be reimbursed to icare should be reduced. The applicant is liable to reimburse icare in accordance with the notice.
I determine the following:
(a)     the second respondent sustained a psychological injury on 16 April 2023, arising out of or in the course of her employment with the applicant;
(b)     the second respondent’s employment was a substantial contributing factor to the injury;
(c)     the injury to the second respondent was not caused by reasonable action taken by or on behalf of the applicant with respect to performance appraisal and/or discipline, and
(d) the applicant is liable for reimbursement of the sum of $20,742.91 to the first respondent, pursuant to s 145(1) of the 1987 Act.
The order is as set out in the Certificate of Determination.

[2024] NSWPIC 258

17 May 2024