Tan v National Australia Bank Ltd
[2006] NSWWCCPD 115
•8 June 2006
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| STATUS: Decision set aside on appeal: Tan v National Australia Bank Limited [2008] NSWCA 198; (2008) 6 DDCR 363 | |||||
| CITATION: | Tan v National Australia Bank Limited [2006] NSWWCCPD 115 | ||||
| APPELLANT: | Sharon Tan | ||||
| RESPONDENT: | National Australia Bank Limited | ||||
| INSURER: | Self insured | ||||
| FILE NUMBER: | WCC8858-04 | ||||
| DATE OF ARBITRATOR’S DECISION: | 16 February 2005 | ||||
| HEARING: | 28 April 2006 | ||||
| DATE OF APPEAL DECISION: | 8 June 2006 | ||||
| SUBJECT MATTER OF DECISION: | Conduct of proceedings; procedural fairness; weight of evidence; self-represented litigant; section 11A of the Workers Compensation Act 1987; section 260(5) of the Workplace Injury Management and Workers Compensation Act 1998. | ||||
| PRESIDENTIAL MEMBER: | Dr Gabriel Fleming, Deputy President | ||||
| REPRESENTATION: | Appellant: | Turner Freeman until September 2004 and then self‑represented | |||
| Respondent: | Vardanega Roberts Solicitors | ||||
| ORDERS MADE ON APPEAL: | 1. The decision of the Arbitrator, dated 16 February 2005, except in so far as it relates to costs, is revoked and the following decision is made in its place: “Award in favour of the National Australia Bank Limited 2. No order as to costs of this appeal. | ||||
APPEALS WERE LODGED BY EACH OF THE PARTIES AGAINST THE DECISION OF THE ARBITRATOR DATED 16 FEBRUARY 2005. BOTH APPEALS WERE DETERMINED TOGETHER. ALL RELEVANT DETAILS IN RELATION TO BOTH APPEALS ARE SET OUT IN THE REASONS IN THIS APPEAL. FOR ORDERS MADE IN RELATION TO THE APPEAL LODGED BY THE NATIONAL AUSTRALIA BANK LIMITED, SEE National Australia Bank v Tan [2006] NSWWCCPD 116.
BACKGROUND
Sharon Beng Tan commenced employment as a mobile mortgage manager with the National Australia Bank Limited (‘the NAB’) in May 2002. Ms Tan claims that during her employment with the NAB she suffered a psychological injury.
Ms Tan made a claim for workers compensation by way of weekly benefits from 21 July 2003 and continuing. The NAB advised Ms Tan that it denied liability for her injury on 26 August 2003 and ceased making provisional payments on 9 September 2003.
On 28 May 2004, Ms Tan filed an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission seeking weekly benefits compensation and medical expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). Ms Tan was legally represented up until 29 September 2004 and has been self represented since that time. The dispute was referred to an Arbitrator for determination.
ISSUE IN DISPUTE
In broad terms the issue in dispute is whether Ms Tan is entitled as a result of her injury to weekly benefits compensation for all or part of the period from July 2003 to date and continuing, and for reasonable medical expenses. The NAB do not dispute that Ms Tan worked for the bank or that she suffered a psychological injury. The NAB submit that Ms Tan “misperceived” events at work and therefore her injury did not arise “out of or in the course of her employment”. Alternatively, the NAB argues that Mr Tan’s injury was “wholly or predominantly caused by reasonable action taken…on behalf of [the NAB] with respect to discipline”. The precise nature of the errors that Ms Tan and the NAB allege were made by the Arbitrator is considered in more detail below.
THE DECISION UNDER REVIEW
The Commission issued a ‘Certificate of Determination’ of the dispute on 16 February 2005. This incorporates, by reference, the oral reasons for decision given by the Arbitrator on 25 and 27 January 2005. The Arbitrator considered Ms Tan’s claim to relate to three injuries namely:
· personal injury (the psychological injury on 1 July 2003);
· a ‘first disease’ injury (the psychological injury deemed to have happened on 2 July 2003); and
· a ‘second disease’ injury (the aggravation, exacerbation and/or deterioration of psychological injury deemed to have happened on 5 April 2004).
The Arbitrator determined that Ms Tan was not entitled to compensation in respect of both her personal injury and the ‘first disease’ injury after accepting the NAB’s defence under section 11A of the 1987 Act in relation to those claims.
However, the Arbitrator determined that in relation to the ‘second disease’ injury Ms Tan was entitled to compensation:
· pursuant to section 36 for total incapacity for the period 5 April 2004 up to and including 9 September 2004; and
· pursuant to section 38 for partial incapacity deemed to be total incapacity from 10 September 2004. In relation to this finding, the Arbitrator found that the NAB had failed to offer Ms Tan suitable employment and had not employed her in suitable employment.
The relevant orders, as extracted from the Certificate of Determination were:
“Award for the respondent [NAB] for weekly benefits compensation up to and including 4 April 2004.
Award for the respondent [NAB] for expenses incurred pursuant to section 60 of the 1987 Act up to and including 4 April 2004.
Award for the applicant [Ms Tan] pursuant to section 36 of the 1987 Act for $1,373.10 per week from 5 April 2004 to 9 September 2004 inclusive.
Award for the applicant [Ms Tan] pursuant to section 38 of the Act as follows:(i)$1,373.10 per week from 10 September 2004 to 30 September 2004;
(ii)$1,118.64 per week from 1 October 2004 to 27 January 2005, and thereafter to continue in accordance with the provisions of the 1987 Act.
Award for the applicant for reasonably necessary expenses incurred on or after 5 April 2004 resulting from the second disease injury.
The respondent is to pay the applicant’s costs as agreed or assessed in accordance with the Workers Compensation Regulation 2003.”
Both Ms Tan and the NAB have filed appeals against this determination. It was agreed by the parties that both appeals should be dealt with together. For orders made in relation to the appeal by the NAB see also National Australia Bank Limited v Tan [2006] NSWWCC PD 116.
Ms Tan filed her ‘Application: Appeal Against Decision of Arbitrator’ on 15 March 2005. She seeks to have the decision of the Arbitrator in relation to the personal injury and ‘first disease injury’ set aside and replaced by an award of weekly benefits from July 2003 to 4 April 2004 (in addition to the award of weekly benefits made for the period on and from 4 April 2004). NAB filed a ‘Notice of Opposition’ to the appeal on 13 April 2005.
The NAB filed an ‘Appeal Against Decision of Arbitrator’ on 21 March 2005. I note that the NAB initially filed an ‘Appeal Against Decision of Arbitrator’ on 15 March 2005 but this was rejected for non-compliance with the Workers Compensation Commission Rules 2003 (‘the Rules’). The NAB seek to have the decision of the Arbitrator in relation to the ‘second disease injury’ set aside and replaced with a decision in its favour effectively denying Ms Tan’s claim in total. Ms Tan filed a ‘Notice of Opposition’ on 13 April 2005.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Ms Tan submitted that the appeals should be determined on the papers.
The NAB objected to the appeals being determined on the papers on the basis that:
· the appeal involves a complex question of law, namely whether a section 11A defence is a total defence, or at least a defence to a subsequent injury in the context of obligations imposed on employers in Chapter 3 of the 1998 Act;
· the question of law will have a widespread impact on the duties of employers;
· given Ms Tan is self-represented, it would assist the Commission to be able to direct queries to NAB’s counsel; and
· a hearing will ensure that justice is seen to be done.
Having regard to Practice Directions Numbers 1 and 6, Ms Tan’s self-represented status and the submissions by the NAB, the matter proceeded to an oral hearing before me on April 28 2006. A number of threshold issues were heard and determined on that day. Leave, fresh evidence and extensions of time were decided, and a brief summary of the reasons for those matters is included here, along with the reasons on the substantive issues.
LEAVE TO APPEAL AND LATE DOCUMENTS
Leave to appeal is required when a party wants to appeal from the decision of an arbitrator. The requirements to be granted leave are found in section 352 of the 1998 Act, which provides as follows:
“352 Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
Ms Tan
Leave to appeal is granted to Ms Tan. Her appeal was filed within time (section 352(2)(a) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)). She challenges the awards in favour of the NAB with respect to the personal injury and the ‘first disease injury’. The threshold requirement in section 352(2)(a) and (b) are met.
Ms Tan objected to the admission of the Notice of Opposition filed by the NAB in response to her appeal, on the basis that it had not been served on her in accordance with the Rules. Ms Tan was not given a copy until March 2006, six weeks before the hearing, when the Commission sent it to her. The explanation given for this by the legal representative of the NAB was ‘administrative error’. This tardiness, on the part of an organisation of the size and status of the NAB, which has legal representation, is unacceptable. Ms Tan, an unrepresented litigant, complied with the Commission’s Rules in relation to the filing and service of documents in both appeals. Ultimately, however I am not satisfied that Ms Tan has been disadvantaged or denied procedural fairness by the Bank’s failure to serve the Notice of Opposition. The issues detailed in it are matters that have been of longstanding dispute and Ms Tan had adequate time to consider them. She herself described the document as “repetitive”. This matter was considered at the oral hearing of the appeal and the Notice of Opposition by the NAB in Ms Tan’s appeal was admitted in the proceedings.
The NAB
The appeal by the NAB was not lodged within 28 days of the Arbitrator’s decision (section 352(4) of the 1998 Act and Rule 77(1)). It was filed five days out of time (three working days). In support of an application for an extension of the time for the making of the appeal, the NAB submitted:
·The breach of Rule 77(3)(b) in relation to the appeal amount was a breach of form and not substance and therefore there was no real prejudice to Ms Tan.
·The delay is insignificant compared with the liberties extended to Ms Tan in the proceedings.
·Ms Tan received notice of the appeal because she received an unsealed copy of the original application on 18 March 2005.
·Ms Tan was granted significant procedural liberties but the NAB was not afforded the opportunity to investigate the additional injuries either factually or medically.
·Ms Tan has received arrears of compensation and continues to receive payments. Additionally, Ms Tan remains employed with the NAB, which is seeking to find her suitable employment. [She has since been retrenched.] Therefore, she has not been prejudiced by the proposed appeal.
·Ms Tan would not be significantly prejudiced, as she would be entitled to commence fresh proceedings on the basis that the principles of ‘Anshun’ estoppel would not apply.
Ms Tan opposes the extension of time submitting that the NAB did not provide a satisfactory explanation as to why the appeal was filed out of time and points to procedural breaches relating to service of the unsealed document and late service. A Presidential Member may, by order, extend the time for making of an appeal if “in exceptional circumstances” to lose the right of appeal “would work demonstrable and substantial injustice” (Rule 77(8)). The NAB’s application to extend the time for filing of the appeal is granted and the time is extended to 21 March 2005 (Rule 77(8); section 352 of the 1998 Act). I am satisfied that to refuse to allow the NAB to file a cross-appeal would “would work demonstrable and substantial injustice” in this particular case. It would frustrate the ventilation not only of the issues placed in dispute on appeal by the NAB but also the issues raised by Ms Tan in her appeal. The substantive facts and issues are the same in both matters. Ms Tan was not unduly prejudiced by the delay, particularly as she received an unsealed copy of the original appeal application on 18 March 2005.
The NAB’s application to appeal involves a challenge to the entire award of weekly compensation for the second disease injury, which exceeds $5,000 and 20% of the amount awarded. Leave to appeal is granted to the NAB.
FRESH EVIDENCE
Section 352(6) of the 1998 Act provides that ‘fresh evidence’ may only be given on appeal with leave. Practice Direction Number 6 sets out the process for seeking leave of the Commission to give ‘fresh evidence’ on appeal. It provides that, amongst other things, the application must contain a brief outline of the new evidence and indicate why it was not given in the proceedings before the Arbitrator and also contain submissions as to why it should be admitted.
Ms Tan seeks leave to rely on a number of documents as ‘fresh evidence’ in the appeal. In particular:
·letter dated 31 March 2006, enclosing 19 documents; and
·letter dated 9 April 2006, enclosing emails between Ms Rowland and Ms Tan dated 17 June 2003 relating to a development plan.
Ms Tan submitted that the documents provide unequivocal evidence that:
·there were no performance appraisal or disciplinary issues involved in the incidents leading to the injury or illness; and
·that the supervising manager had also used unreasonable measures to pressure her to do activities that were not within the parameters of the job and were contrary to the Australian Financial Services Licence and legislation.
Ms Tan submitted that the documents she wants to admit as fresh evidence were not provided in the proceedings before the Arbitrator as they were not available at the time.
With respect to the 19 attachments under cover of the letter of 31 March 2006, I note that:
·Items 1 to 3 are documents obtained after the Arbitration. It is not clear whether they were in existence or applied at the relevant times in relation to the injury/disease.
·Items 4 to 9 are emails that were in existence prior to the proceedings before the Arbitrator.
·Item 11 is a document that was in evidence before the Arbitrator as it was filed with Ms Tan’s original ‘Application to Resolve a Dispute’ on 4 June 2004.
·Items 12 to 15 contain medical information that has been obtained since the Arbitration.
·Item 16 is an Injury Management Plan dated 13 October 2005.
·Item 17 is an email from Ms Tan to the Commission relating to the termination of the return to work plan.
·Item 18 is a case citation which does not need to be admitted as evidence.
·Item 19 is an involuntary retrenchment and termination report from the NAB.
In relation to the letter of 9 April 2006, the two emails enclosed are dated 17 June 2003 and thus were in existence prior to the proceedings before the Arbitrator.
The principles relevant to the exercise of the discretion to admit fresh evidence in appellate proceedings were discussed in relation to proceedings before the Commission in the matter of Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7. The nature of the Commission’s proceedings, the conduct of the parties, whether or not the evidence could have been obtained and presented to the Arbitrator and the likely impact of the evidence on the outcome are relevant considerations to whether or not fresh evidence should be admitted on appeal. Ultimately it will be a matter to be determined according to the principles of substantial justice to both parties.
The NAB does not object to the filing of all of these documents as fresh evidence in the appeal. Taking account of the issues in dispute and, in particular the wide-ranging approach to the matter adopted by the Arbitrator, I am satisfied that it would be a substantial injustice to Ms Tan not to allow the fresh evidence, detailed above, to be admitted on appeal. The NAB does not suffer any prejudice as a result of the admission of this evidence. At the oral hearing of the appeal leave was granted to Ms Tan to file the fresh evidence (being the bundle of documents enclosed in two letters, dated 31 March 2006 and 9 April 2006 as detailed at paragraphs 26 and 27.)
ISSUES IN DISPUTE ON APPEAL
Before considering the grounds of appeal, it is worth emphasising that the basis of an appeal to the Commission from the decision of an arbitrator is that the arbitrator erred, whether by way of law, fact or discretion (Allesch v Maunz (2000) 203 CLR 172, as applied to the Commission in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6; The King Island Company Limited v Deery [2005] NSW WCC PD 1). If such an error is established, and it is such that, but for it, a different decision would have been made then the Presidential Member determining the appeal may revoke the arbitrator’s decision and substitute a different decision for it, or may remit the matter to the arbitrator concerned or a different arbitrator for re-determination in accordance with the decision on appeal (section 352 of the 1998 Act; Snow Confectionary Pty Ltd v Askin [2004] NSW WCC PD 56 at paragraph 4).
Ms Tan’s Appeal
Ms Tan’s appeal expressly challenges the award in favour of the NAB in relation to the personal injury, the ‘first disease injury’ (over the period 1 July 2003 to 4 April 2004) and reasonable medical expenses pursuant to section 60 of the 1987 Act. The following grounds of appeal are raised on the face of Ms Tan’s application, namely that the Arbitrator erred in:
·Admitting, as a late document, the NAB document headed ‘Draft Performance Appraisal’ (‘Admission of Late Documents’).
·Giving undue weight to the ‘Draft Performance Appraisal’, the ‘First and Final Warning’ letter in the context of “discipline” under section 11A and failing to give weight to the ‘unreasonable actions’ of the NAB which led to the injury on 1 July 2003 (‘Weight of Evidence’).
·Failing to consider alleged breaches of the Occupational Health and Safety Act 2000 (‘The Occupational Health and Safety Act 2000’).
·Failing to consider the operation of Chapter 3 of the 1998 Act, which sets out an the injury management obligations of employers and employees, in relation to a successful defence under section 11A of the 1987 Act (‘The Injury Management Obligations’).
The NAB addressed these grounds in their Notice of Opposition and at the hearing of the appeal. The NAB rely upon on section 11A of the 1987 Act. This section is critical to the issues argued in this appeal and is therefore set out in full, as follows:
“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.
(2)…
(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.
(5)(Repealed)
(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 NAB’s Appeal
The NAB’s appeal challenges the award in favour of Ms Tan in relation to the ‘second disease injury’. The NAB raise four grounds of appeal, namely that the Arbitrator erred in:
·Exercising his discretion under section 260(5) of the 1998 Act to allow Ms Tan to claim an additional three frank injuries on 1 and 2 July 2003 and 5 April 2004 (‘Section 260(5) of the 1998 Act’).
·Exercising his discretion under section 260(5) of the 1998 Act to allow Ms Tan to claim the previously unpleaded frank injuries on 2 July 2003 and 5 April 2004 were ‘disease’ injuries (this is also a ‘Section 260(5) of the 1998 Act Error’).
·Denying the NAB procedural fairness as it did not have the opportunity to investigate the previously unpleaded injuries/diseases either factually or medically (‘Procedural Fairness’).
·Finding the ‘second disease injury’ on 5 April 2004 was not subject to the section 11A of the 1987 Act defence and in not providing adequate reasons for the determination (‘The 11A Defence and Reasons”).
Before proceeding to a consideration of the issues it is necessary to set out the facts of the dispute as they were in evidence before the Arbitrator and to review the conduct of the proceedings by the Arbitrator.
EVIDENCE AND SUBMISSIONS
Ms Tan
Ms Tan’s claim, as it was made to the NAB and particularised in the Application to the Commission, is that she suffered an ‘injury’ being ‘anxiety and depression’ as a result of her employment as a Mobile Mortgage Manager with the NAB. The claim was made in July 2003 alleging that the injury occurred on and from April 2003 and that her employment was a ‘substantial contributing factor’ to her injury. Essentially, it can be seen from the evidence above, she claims that her treatment by Ms Rowland, her supervisor, was the cause of her distress/injury. She claims weekly compensation on and from 21 July 2003.
Ms Tan filed her ‘Application to Resolve a Dispute’ in the Commission on 4 June 2004. It was prepared by her legal representative. In that application she described her injury as “Anxiety/Depression” and the “Date of injury” as “On or about 30 April 2003”. The claim was for weekly benefits from “10 September 2003 to date and continuing” and for reasonable medical expenses. The description given of how the injury occurred is as follows:
“During the course of her employment, the Applicant was targeted by her manager, Mary Rowland, who continually questioned her abilities to perform her duties successfully and did so in a manner that was unreasonable, having regard to the fact no performance targets were set, no identification of what skills needed improving and no assistance provided to give the Applicant the opportunity to improve any perceived deficiencies. At no time was the Applicant advised of what her deficiencies were, if any, and at no time was a system for correcting those deficiencies set up. For more details please refer to the statement of the Applicant.”
Two statements by Ms Tan, dated 1 August 2003 and 26 March 2004, were attached to her application to the Commission. They summarise her assertion of the relevant facts of the dispute, as follows:
·On 13 May 2002 Ms Tan began work with the NAB as a ‘Mobile Mortgage Manager’. From October or November 2002 she was based in the NAB office at Randwick. She worked 40 hours per week, earning $1004.84 (exclusive of superannuation). Her duties:
“…involved signing up introducers, (Introducers are third party sources who refer new business to the bank) arranging home and investment loans, doing loan applications, and attending on my clients at their home and offices as a mobile lender to facilitate the loan process and ensuring loans are timely executed and settled. My hours of work are flexible and I do work on week-nights and week-ends depending on the needs of the customers.”
·When first employed by the NAB Mr Michael Newcombe managed her. Ms Tan underwent satisfactory performance appraisals, with a written reports which were submitted, in December 2002 and February 2003.
·In about March/April 2003 Ms Mary Rowland was appointed her Manager.
·Ms Tan suffered from a “series of workplace incidents that caused my injuries” from April 2003. These included:
“[s]everal meetings, managerial instruction and one-to-one conferences with Mary Rowland that were put down and criticism sessions and not reasonable actions. The pattern of managerial behaviours and actions were bullying, offensive, unreasonable and deeply humiliating to me and created in me a deep fear of Mary. It totally destroyed my credibility, integrity and confidence and she also took away my control over my job leaving me absolutely no say over the ongoing service I offer to my clients. The previous area managers have never managed the team in this intimidating and intrusive manner. My health suffered a complete breakdown as a result of these ongoing bullying and harassing behaviours. I reported the distress from these psychological hazards to management but they did not treat the matter seriously.”
·A number of specific instances of this alleged “harassment” were detailed in the documents and Ms Tan’s oral evidence. They were:
oA meeting with Ms Rowland on 22 April where a discussion was held as to how Ms Tan was dealing with her “inactive introducers”. An action plan was discussed. At this meeting a ‘Draft Performance Plan’ prepared by Ms Rowland was discussed.
oA business lunch with some of Ms Tan’s “introducers” in April/May 2003. Ms Rowland was critical of Ms Tan’s conduct at the lunch and a meeting was held shortly after it where the lunch was discussed.
oThere was ongoing disagreement between Ms Tan and Ms Rowland as to the nature of the “sales pitch” that was to be presented to the “introducers”. Ms Tan claims that she was being forced to adopt a “hard sell” approach, which was inappropriate for her Asian clients.
oFollowing a meeting with an introducer, “Event Finance”, in May 2003, Ms Rowland was critical of Ms Tan about the way the business was handled and the presentation of the NAB’s products. Ms Tan claims she was directed to personally visit Event Finance, in contravention of the NAB’s policy on introducers and the company’s desire to deal with her only by email or phone.
oMs Rowland counselled Ms Tan that the “Credit Department” were dissatisfied with her applications and required her to do further training with them.
oThe handling of a complaint by a Mr Ling, in June 2003, in which Ms Tan claims she was “discredited” and “humiliated” by Ms Rowland.
oIn late June 2003 Ms Tan approached the senior manager, Mr Lawrence and requested a meeting to discuss her difficulties with Ms Rowland and Mr Ling’s complaint. He declined to meet her without Ms Rowland being present.
oOn 30 June 2003 Ms Rowland advised Ms Tan that she was arranging a meeting with her “in the next couple of days”. This distressed Ms Tan, who emailed Ms Rowland to ask that “all further communication directed from her to me be via e-mail” as she was “threatened” by Ms Rowland’s presence.
Ms Tan states that she began to have problems with sleeping, tension headaches, loss of confidence, anxiety and an upset stomach, from about April 2003 when the above incidents occurred. During May and June 2003 emails were exchanged about ongoing sessions with Ms Tan and Ms Rowland. Ms Tan stated that she was fearful of being questioned and criticised by Ms Rowland. She claims that the criticism of her work was unjustified and unprecedented. She claims that Ms Rowland spoke to her in a “bullying” way and was “constantly picking on me on any matter as they arose, talking down to me and taking away my control of the job”, causing her “severe anxiety and psychological trauma”.
Ms Tan attended work and afterwards attended Dr Lee on 1 July 2003 complaining of recurrent headaches nausea and insomnia, brought on by her dealings with Ms Rowland at the NAB in the preceding week. Dr Lee certified her unfit for work from 1 to 8 July 2003. He gave her “anxiety medication” and a certificate “ to take one week off work to try and alleviate my anxiety”. On 10 July she consulted Dr Tan, General Practitioner (in Dr Lee’s absence), because she was “still feeling stressed out, anxious, suffering from headaches, fatigue and experiencing crying spells”. Dr Tan issued her with a WorkCover medical certificate for the period 2 July to 2 August and prescribed further “anxiety medication” and Valium. A further Certificate was later issued stating that she was unfit for work until 29 September 2003.
On 12 or 13 July 2003 Ms Tan e-mailed Mr Imbruglia, her NAB colleague, that she was on leave and “would refer any introducers who contacted” her to him. This email also stated that “I am totally uncomfortable about referring any matter to my immediate manager due to unresolved issues in the workplace which are the very issues that are causing me a lot of distress”. As a result of this email, on 23 July 2003, the NAB, by Mr Lawrence, issued Ms Tan with a ‘First and Final Warning in Relation to Professional Misconduct’.
On 21 July 2003 Ms Tan lodged a claim for workers compensation benefits with the NAB. In that claim she describes her injury as “work-related stress and anxiety”. A medical certificate from Dr Tan supported it. She describes the injury as developing since April 2003.
Ms Tan ‘self-referred’ to the CRS for return to work planning in September 2003. She attended an interview and the NAB agreed to pay for the service. As a result of Ms Tan’s refusal to attend mediation with the NAB to facilitate a return to work under Ms Rowland, CRS closed her file on 11 September 2003.
In August/September 2003 Ms Tan was referred by her General Practitioner to Dr Gojak, Psychiatrist, because she continued to suffer “severe anxiety and depression”. She was prescribed medication and attended therapy sessions. On 24 November 2003 Dr Gojak reported that Ms Tan could return to work in December under reduced hours, before resuming full duties. Her recommended that she be placed under a different Manager. The NAB did not agree to her placement under another manager and Ms Tan did not return to work because, she asserts, it would have been further injurious to her health and she was “not prepared to risk having a second major stress breakdown”. Ms Tan has since continually refused to return to the NAB under Ms Rowland’s supervision.
Ms Tan claims that her “health broke down completely and I was diagnosed with anxiety and major depression which culminated from all the workplace incidents involving Mary Rowland and her ongoing bullying and coercive style of management”. She claims that she needed dental treatment because she was clenching her teeth at night due to anxiety. She continued to consult her General Practitioners, Dr Tan and Dr Lee, her Psychiatrist Dr Gojak (until December 2003) and a physiotherapist Mr Franky Rijadi (for pain in the face neck and shoulders). She also consulted Yang Sheng Wu for acupuncture and remedial massage.
Ms Tan states that her anxiety and depression worsened on 5 April 2004 because she could no longer afford to see Dr Gojak and there were no return to work plans that were suitable to her.
Ms Tan gave extensive oral evidence at the hearing before the Arbitrator. Where that evidence contradicts, adds to or detracts from her written statement, in so far as it is relevant to the appeal, it is discussed further in relation to each of the ‘issues in appeal’ below.
Ms Tan filed a number of medical reports as follows:
·On 24 November 2003 Dr Gojak reported that Ms Tan suffered a “depressive illness which has occurred in the context of work related stress”.
·On 6 November 2003 Dr Gojak reported that Ms Tan was suffering depression and anxiety symptoms due to her “work stress”. On 19 November 2003 he reported that she had improved, although “not 100%” and was “ready to return to work” on reduced hours.
·Dr Lee reported on 26 November 2003 that Ms Tan suffered a ‘Stress Reaction’ due to her work.
·On 10 May 2004 Dr Tan reported that Ms Tan suffered from anxiety and depression “directly related to the events at work”.
·Ms Joanne Azzopardi, Clinical Psychologist, reported on 5 October 2004 that Ms Tan had been referred for treatment of work-related depression.
In September 2004 Dr Tan and Dr Kossoff reported that Ms Tan could return to work, under a different manager.
After further return to work planning Ms Tan returned to the NAB on restricted hours in August 2005 in a different role, not under the supervision of Ms Rowland.
Ms Tan was retrenched from the NAB on 17 March 2006.
The NAB
The NAB do not dispute that Ms Tan has suffered a psychological injury. However, the NAB submit, in summary, that Ms Tan’s employment did not cause her injury, and in the alternative, that Ms Tan’s injury was a response to “reasonable disciplinary action” taken by it in response to issues arising from Ms Tan’s performance of her duties as a Mobile Mortgage Manager (section 11A of the 1987 Act).
The NAB paid Ms Tan weekly compensation commencing on 21 July 2003.
The NAB filed a statement by Ms Rowland, dated 7 August 2003, which states that:
· She was transferred to the position of Area Manager New Business Team with the NAB in March 2003. In this position she was responsible for managing the work of Ms Tan.
· She was advised by Mr Newcombe “that there were some performance issues” with Ms Tan “mostly relating to difficulties with internal relationships and difficulties with the fostering and development with her introducers”. Ms Tan had not been required to meet formal sales targets in her first twelve months with the NAB, to allow her to learn the NAB’s products.
· She considered that Ms Tan “had little understanding of what measurements she should actually look to compare herself with”. She had several meetings with Ms Tan to discuss her performance and established fortnightly “coaching sessions” at which she would;
“ establish where Sharon was with the program we had set up. We would talk about the positive outcomes she had and I would congratulate her on those issues, we would then discuss how we might develop other areas and what we could do to get good results. We would discuss the actions she had taken in the course of her duties and whether those actions were working or not”.
· She claims that Ms Tan was resistant to these sessions and claimed she did not need assistance.
· Ms Rowland also held coaching sessions with other staff in her team.
· She attended a business lunch with Ms Tan and her introducers in April/May of 2003. During the lunch she:
“noticed that there were some areas of [Ms Tan’s] relationship with the introducers and her performance at the lunch that needed development. Some of those areas were very fundamental such as: she arrived late [for a business meeting scheduled prior to the lunch], left early [before discussing the lunch with Ms Rowland], she discredited some of the bank’s policies, discussed some of the banks deals, talked about roadblocks the NAB had in getting loan approval and she invited a couple of guests who worked on the same street and were in the same line of business - both of whom discussed that they were in direct competition with each other - which made them both uncomfortable”.
· Following the lunch she requested a meeting with Ms Tan to discuss. Ms Alice Waller, the NAB’s Multicultural Markets Business Development Manager, NSW and QLD also attended the lunch. Ms Rowland asked her if cultural factors were at issue in Ms Tan’s conduct and she “assured me that even though there were cultural differences they were not in issue” in terms of Ms Tan’s performance at the lunch.
· During meetings with Ms Tan, she “would often talk over the top of me and refuse to listen. She would raise her voice and continually disagree with me”. Ms Rowland states that she did not raise her voice and tried to speak in an “empathetic tone” to Ms Tan.
· Ms Rowland received feedback from other staff that Ms Tan “had problems with her past and ongoing business relationships”, including incomplete files and poor communication.
· In May she received a call from ‘Event Finance’, one of Ms Tan’s introducers. She felt that Ms Tan had not given them a complete understanding of the NAB’s products. She asked her to go and see them but Ms Tan did not want to go.
· She was aware that Ms Tan had some problems with personnel in the credit department and that her standard of credit applications had been questioned. She raised this with Ms Tan, who insisted “she had the best credit skills of anyone in the team and that she didn’t need to develop her skills at all”.
· She received a complaint from Mr Ling and subsequently had a telephone conversation about it with him. During that conversation she said that Ms Tan “should, perhaps, have provided a little more information up front so that the credit office had enough information to assess the application” and that Ms Tan “was relatively new to the position”. A few hours after this call Ms Tan rang her and was “obviously upset and angry”. She considered that Ms Rowland had discredited her to her customer. Ms Tan refused to meet with her and discuss the issue. She hung up the phone saying that she was intending to raise the issue with Mr Lawrence. She later attempted to set up a meeting with Ms Tan and Mr Lawrence.
· Ms Rowland denies ever attempting to bully Ms Tan or making personal remarks about her or insulting her in any way. She claims that Ms Tan did not complain to her of anxiety or illness. On 1 May she received an email from Ms Tan that said she was “distressed” and had “not slept well for several nights now”.
· She states that she treated Ms Tan “no differently than other members of the team. I have always treated her with courtesy and respect”.
Ms Rowland also gave oral evidence at the hearing. Where that evidence contradicts, adds to or detracts from her written statement, in so far as it is relevant to the appeal, it is discussed further in relation to each of the ‘issues in appeal’ below.
The NAB also filed a number of witness statements from Ms Tan’s co-workers and managers. Mr Michael Newcombe was her manager prior to Ms Rowland. He stated (3 November 2003) that he “had received several complaints about Sharon from Paul Goldring, Personal Banker Area Manager. Paul complained her manner and attitude towards other staff was overbearing and impolite.” He spoke to Ms Tan about this and she denied there were any problems. Ms Tan did not meet her work targets, despite having been given substantial leeway to get herself established with the NAB. He also received a complaint about Ms Tan from ‘Lending Services’. He again discussed this with Ms Tan who expressed ‘disbelief’. He states that he “felt that Sharon did not like to be told what to do or being criticised on her performance”.
Mei Hean San, in her statement dated 5 December 2003, states that she worked with Ms Tan in the NAB Hurstville office in 2002 and maintained contact with her when she moved to Randwick in 2003. She assisted Ms Tan with her ‘deals’. Her observation was that Ms Tan was “very good at signing up introducers”. Ms Tan spoke to her about the stress she was experiencing working with Ms Rowland and “complained about Mary pressuring her to achieve her targets”. She “formed the opinion that she had problems relating to other staff, probably because she is quite demanding”. However in relation to personal banking Ms Tan was one of her “top 25 clients”.
The NAB advised Ms Tan that it denied liability for her injury on 26 August 2003 and ceased making provisional payments on 9 September 2003. The ground for the denial was that the Bank had acted reasonably “with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal” in relation to Ms Tan (section 11A of the 1987 Act). The NAB proposed mediation in order to facilitate Ms Tan’s return to work three days per week for four hours per day. Ms Tan stated she was not able to return due to her “ongoing stress, depression, and anxiety”.
In August 2003 Ms Tan attended Dr Lana Kossoff, Psychiatrist, at the NAB’s request. Dr Kossoff reported, on 20 August 2003, that Ms Tan was “suffering from an Adjustment Disorder with Depressed Mood and Anxiety”. She considered that Ms Tan “developed the Adjustment Disorder with Depressed Mood and Anxiety in the context of perceived criticism and harassment by Ms Rowland in feedback about performance issues. Her psychological symptoms have further deteriorated since she received a first and final warning in relation to breaching of the Code of Conduct”. Dr Kossoff considered that Ms Tan would benefit from six sessions of cognitive behaviour therapy and that she was fit to resume work for three days per week, four hours per day and later for a return to normal duties.
Dr Kossoff assessed Ms Tan again on 13 September 2004. She reported that Ms Tan was “more depressed” than at the previous examination in August 2003. This she attributed to the “protracted return to work process and part of her recovery would involve returning to work in some form.” She recommended a gradual return to work, under a different manager. Her diagnosis was of ‘Major Depression in partial remission”.
In November 2003 Ms Tan requested a return to work under a different manager. On 2 December 2003 the NAB advised Ms Tan that her return to work could be facilitated but that she would continue to be managed by Ms Rowland.
On 3 February 2004 the NAB advised Ms Tan of an Injury Management Plan to facilitate her return to work.
Ms Tan consulted Dr Tan on 14 April 2004 and he considered that the stress of the return to work had contributed to another worsening of her depression and that she was unfit to return to work on and from 5 April 2004. The Arbitrator treated this as amounting to the ‘second disease injury’ deemed to have occurred on 5 April 2004.
THE PROCEEDINGS BEFORE THE ARBITRATOR
The history of the Commission proceedings in relation to Ms Tan’s application is, in summary, as follows:
·The original application was filed on 4 June 2004.
·A Reply was filed on 23 June 2004.
·Telephone conferences were held on 31 August 2004 and 8 September 2004, at which Ms Tan was legally represented.
·A further telephone conference was held on 27 September 2004.
·A face-to-face conciliation-arbitration was held on 11 November.
·A further telephone conference was held on 22 November.
·The face-to-face arbitration continued on 30 November 2004.
·A further telephone conference was held on 14 December 2004.
·The face to face arbitration continued on 15, 21 and 22 December 2004
·Following the filing of additional written submissions in late December 2004 and early January 2005, the Arbitrator delivered oral reasons for decision over two days, with the parties in attendance on 25 and 27 January 2005.
The transcript of proceedings before the Arbitrator runs to over eight hundred pages, even though not all attendances listed above were recorded and transcribed. It is clear from the transcript that the Arbitrator did not conduct the proceedings in accordance with the Registrar’s ‘Guideline on the Conciliation and Arbitration Process in the Workers Compensation Commission’. While this in itself is not an error of law, fact or discretion, the conduct of the proceedings was, in my view, entirely unsatisfactory and has directly contributed to the dissatisfaction of the parties with the outcome. The Arbitrator did not adhere to the Commission’s objectives, to provide a timely and efficient dispute resolution service (section 367 of the 1998 Act). There are a number of other aspects of the Arbitrator’s conduct of the proceedings that require comment, albeit that some of these matters are also relevant to the substantive grounds of appeal.
The Arbitrator appears to have taken an approach to the proceedings guided almost entirely by the fact that Ms Tan was not legally represented (following the first telephone conference). The extent of an Arbitrator’s obligation to an unrepresented litigant must be governed by the Commission’s statutory objectives and the requirements of procedural fairness. The Commission’s ‘Access and Equity Service Charter’ sets out a number of ways in which a worker who is not legally represented may be assisted by the Commission, for example, by Commission staff explaining the proceedings, by attending to any special needs.
Notwithstanding that Ms Tan was legally represented at the time her application was filed in the Commission, and that, in accordance with the Commission Rules her dispute should have been fully particularised at that time, with all relevant documents filed, the Arbitrator granted Ms Tan leave to file ‘late documents’ on three occasions. He also permitted her to file written submissions, on at least four occasions. In my view the NAB, who was expected to have filed all relevant evidence at the time of filing the Notice of Opposition, is justified in expressing dissatisfaction with the conduct of the proceedings. It is also apparent from the Commission file that the Arbitrator was generous in the exercise of his discretion as to the setting of dates for the arbitration, and the adjournment of those dates, in order to accommodate Ms Tan’s wishes. During one of the hearing days, on 15 December 2004, Ms Tan requested that she be able to join the hearing by telephone, because of the stress that her condition and the dispute resolution process was causing her. By letter to the Commission dated 2 December 2004 she said “I am mentally and physically exhausted from these series of Hearings over the past months and I am not able to function to that level where I can deal with the psychological demands for that particular situation”. The Arbitrator agreed to this request and I do not criticize him for permitting Ms Tan to attend the arbitration by telephone on the day Ms Rowland was giving her evidence. However in my view Ms Tan would have been less ‘stressed’ by the proceedings had they been concluded in a more timely manner.
The duty of a ‘court’ to an unrepresented litigant was discussed by the Court of Appeal in Malouf v Malouf [2006] NSWCA 83. The comments made in that case are in relation to a court, in contrast to the Commission, which arguably has a greater obligation to ensure that unrepresented litigants understand the proceedings (see statement of Commission objectives, s 367 of the 1998 Act). The Court, Mason P, refers to the “restraints upon judicial intervention” attendant upon the adversarial nature of the court and states that such constraints “are not relevantly qualified merely because one of the litigants is self-represented”. There is little doubt that in the establishment of the Commission it was intended that proceedings be conducted more flexibly and informally than a court. However the Commission must, at the same time, ensure that the proceedings are conducted fairly in relation to all parties. The fact that a worker is self-represented does not mean that the Commission’s Rules are to be disregarded or that there is no expectation of compliance with directions and timetables that guide the proceedings. In this case the Arbitrator’s repeated extension of indulgences to Ms Tan, his attempts to re-cast or reframe the nature of her claim and his inability to properly control the proceedings were unfortunate.
CONSIDERATION OF THE ISSUES
I have considered the volume of documentary evidence and the detailed oral evidence on the facts as alleged by Ms Tan and Ms Rowland. These reasons do not recite the evidence of every conversation, allegation or document that was before the Arbitrator and it is not necessary to do so. Unfortunately this was the approach taken by the Arbitrator when giving his reasons, which run from pages 677 to 816 of the transcript. In this case, it is not necessary to re-state the large volume of evidence however where fact-finding is necessary to determine the ultimate issues in dispute a finding is made and reasons given (Belmont Night Patrol Pty Ltd v Woolworths & Anor [2004] NSWCA 235).
Admission of Late Documents
Ms Tan submitted the Arbitrator erred in admitting the document called ‘Draft Performance Appraisal’, dated 22 April 2003, whose author is her former supervisor at the NAB, Ms Rowland.
The transcript of the arbitration, of 21 December 2004, records the circumstances in which this document came to light. The Arbitrator, putting questions prepared by Ms Tan to Ms Rowland, asked her about the circumstances surrounding the ‘Draft Performance Appraisal’ document. The evidence was that the document was discussed in a meeting with Ms Tan on 22 April 2003.
The ‘Draft Performance Appraisal’ document is clearly relevant to the issues that were in dispute before the Arbitrator. It is a document that was discovered as a result of a Direction for Production issued to the NAB.
The Commission’s Rules and procedures are directed towards the earliest and fullest disclosure and exchange of documents (evidence and submissions) by parties in Commission proceedings. However there is a ‘Directions to Produce’ process and with it the likelihood that documents produced will be relevant to the proceedings (Rule 37(4) and Rule 40(4)). The Commission is not bound by the rules of evidence and may inform itself as it thinks fit. In this matter the ‘Draft Performance Appraisal’ document was directly relevant to the issues. It was not produced as part of the NAB’s case, but became relevant as a result of the evidence of Ms Rowland. Ms Tan was then given the opportunity to consider it, to ask questions in relation to it and to make submissions in relation to it. The Arbitrator did not err in admitting the document.
Section 260(5) of the 1998 Act
The first order made by the Arbitrator is as follows;
“1.I exercise my discretion pursuant to s 260(5) of the Workplace Injury Management Workers Compensation Act 1998 (‘the 1998 Act’) to allow the applicant to claim for each of three injuries (namely, personal injury, the first disease injury and the second disease injury) referred to in this decision, and I find that the Applicant’s failure to do so previously was occasioned by ignorance, mistake and/or other reasonable cause.”
The NAB submit that the Arbitrator erred in two ways in terms of the application of section 260(5), namely, in:
·Exercising his discretion under section 260(5) of the 1998 Act to allow Ms Tan to claim an additional three frank injuries on 1 and 2 July 2003 and 5 April 2004 (‘Section 260(5) of the 1998 Act’).
·Exercising his discretion under section 260(5) to allow Ms Tan to claim the previously unpleaded frank injuries on 2 July 2003 and 5 April 2004 were ‘disease’ injuries (this is also a ‘Section 260(5) of the 1998 Act’ error’).
Section 260 of the 1998 Act provides as follows:
260 How a claim is made
(1)A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines.
(2)The WorkCover Guidelines may make provision for or with respect to the following matters in connection with the making of a claim:
(a) the form in which a claim is to be made,
(b) the manner in which a claim is to be made,
(c) the means by which a claim may be made,
(d) the information that a claim is to contain,
(e) requiring specified documents and other material to accompany or form part of a claim,
(f) such other matters as may be prescribed by the regulations.
(3)Without limiting this section, the WorkCover Guidelines can require that a claim be accompanied by a form of authority signed by the claimant and authorising a provider of medical or related treatment, hospital treatment or occupational rehabilitation services to the claimant in connection with an injury to which the claim relates to give the insurer concerned information regarding the treatment or service provided or the worker’s medical condition or treatment relevant to the claim.
(4)The WorkCover Guidelines can also provide for any of the following matters in connection with the making of a claim:
(a) waiving the requirement for the making of a claim in specified cases (such as cases in which notice of injury has been given or provisional weekly payments of compensation have commenced),
(b) providing for the time at which a claim is taken to have been made in any case in which the requirement for making of a claim has been waived,
(c) providing for the time when a claim is taken to have been made in any case in which requirements of the Guidelines with respect to the making of the claim have been complied with at different times.
(5)The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style.
(6)Except to the extent that the WorkCover Guidelines otherwise provide, and insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer.
(7)The WorkCover Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any failure by the worker if the insurer fails to give the required notification.
The ‘WorkCover Guidelines’ referred to above, are the ‘WorkCover Provisional Liability and Claims Guidelines’ December 2001. No guidelines have been made pursuant to section 260(4) of the 1998 Act. The information required for the making of a claim is set out at Part 2 of the Guidelines. The Guidelines do not require notification of a claim to be articulated in terms of the statutory definitions of ‘injury’ (section 4 of the 1987 Act) or ‘aggravation’ (section 16 of the 1987 Act; Far West Area Health Service v Colin Robert Radford [2003] NSW WCC PD 10).
Section 260 of the 1998 Act is concerned with the form, manner and means in which a claim is made and the associated issues of the information and documentation that must accompany a ‘claim’. A “claim means a claim for compensation or work injury damages that a person has made or is entitled to make” (section 4 of the 1998 Act). Section 260(5) excuses a failure to make a claim where it is not made “as required by this section”. Section 260 has been considered in a number of Commission decisions. It does not excuse a failure to make a claim at all (see Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSW WCC PD 8).
In South Western Sydney Area Health Service v Edmonds [2005] NSW WCC PD 18 (18 March 2005) the worker had made a claim on the employer, but the Arbitrator ‘reframed’ the nature of that claim in the proceedings in the Commission. The facts of the claim were not ‘new’ to the employer/insurer as the workers statement and the medical reports recounted a clear history of the injury that was consistent with the findings made by the Arbitrator. An opportunity was given before the Arbitrator to address any issues that arose from this ‘reframing’. The Arbitrator did no more than determine the dispute according to law, which was his statutory task. The point was made in Edmonds that while it is for an Arbitrator to determine the whole of the dispute that is before him or her the “nature of that dispute is not at large, it is confined by the parameters of the statutory scheme found in the Workers Compensation Acts (‘the 1987 Act and the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)). The issues in dispute must be referable to the “claim” that was made by the worker under the Workers Compensation Acts”.
In Mayne Group Limited v Roberts & Faulding Health Care Pty Ltd [2005] NSWWCCPD 15 (15 March 2005) Deputy President Byron upheld the Arbitrators finding that Ms Roberts had not failed to make a claim for a ‘fresh injury’, being a “recurrence of the original injury”, or, alternatively, if she had not properly made the claim (in accordance with section 260 and the WorkCover Guidelines), this was excused by “ignorance, mistake or other reasonable cause”.
The Commission is not bound by technicalities and legal forms and may inform itself as it thinks fit (section 354 of the 1998 Act). Legal representatives must be aware that the Commission is not a court, but an independent statutory tribunal (Orellana-Fuentes v Standard Knitting Mill Pty Limited [2003] NSW CA 146 (20 June 2003)), whose objectives are to provide a dispute resolution forum that is “fair and cost effective” (section 367 of the 1998 Act). A dispute filed in the Commission in relation to a claim is not confined to strict ‘pleadings’ on limited grounds. As I said in Barbour v BHP Steel Pty Limited [2004] NSW WCC PD 42:
“It is not appropriate for parties in the Commission to seek to have disputes cosseted in technical rules that result in a failure to determine the real issues (section 354 of the 1998 Act). Parties are not restricted to issues strictly ‘pleaded’. Nor, as the Workers Compensation Acts (the 1987 Act and the 1998 Act) currently stand, is a Respondent in the Commission restricted to relying only on the reasons for which liability for a claim was initially refused.
An application to the Commission should seek to detail the facts of the claim, as it was made upon the employer, and understood by the employer and the insurer prior to coming to the Commission. To insist on strict categorization of the dispute as to only a ‘pleaded’ frank injury, or a ‘pleaded’ nature and conditions claim [or as in this matter a ‘pleaded’ aggravation], is to impose an artificial technicality on workers compensation disputes that is clearly not intended in the objectives of the Commission (section 367 of the 1998 Act). This is not to say that parties should be at large to raise matters not genuinely in issue between them, or to pursue the ‘element of surprise’ in the advancement of their claims in the Commission. Ultimately Commission proceedings must be governed by the principles of procedural fairness. This includes giving a party notice of the case against it and the opportunity to respond, within the reasonable application of the procedural limitations and expectations placed upon the parties by the legislation and the Commission’s Rules”.
In essence it is saying no more than that the Commission is bound by procedural fairness, to state that an employer must be on notice of the claim that is made against it and the nature of the dispute in the Commission.
In this matter Ms Tan did make a claim, on 21 July 2003. She did not specify three dates of injury in that claim. The Arbitrator chose to treat Ms Tan’s claim as being for three distinct injuries, dated 1 July 2003 (‘personal injury’), 2 July 2003 (‘first disease injury’) and 5 April 2004 (“second disease injury”). The Arbitrator was entitled to exercise his discretion to excuse a failure to make a claim as required by section 260 of the 1998 Act and the WorkCover Guidelines. If he did so, then the failure did not bar Ms Tan from recovering compensation. However the Arbitrator has purported to rely upon section 260(5) of the 1998 Act to allow Ms Tan to make an application to the Commission in relation to a dispute about an injury (‘the second disease injury’) that has never been the subject of a ‘claim’ on the NAB (as opposed to an application in relation to a claim that does not meet the requirements of section 260 of the 1998 Act). He also ‘reframed’ Ms Tan’s claim in such a way that the NAB could not be said to have been on notice of it. He went beyond the exercise of the discretion to excuse a failure to make a claim as required by section 260 of the 1998 Act (contained in section 260(5)). The exercise of the discretion under section 260(5) of the 1998 Act does not mean that an employer/insurer can be joined in a ‘dispute’ in the Commission, where it has no notice of a claim, and has had no opportunity to determine its liability in relation to it.
There was no reason of law, fairness or otherwise, for the Arbitrator to ‘reframe’ Ms Tan’s claim in terms of three injuries. This decision of itself created the need for the Arbitrator to have recourse to the discretion in section 260(5) of the 1998 Act. This was not a case where the evidence clearly supported this ‘reframing’ as the employer was clearly on notice of the nature of the injury because the facts and the medical evidence spoke for themselves, despite defects in the details provided on the claim form (as in Edmonds). Ms Tan’s claim was clear when it was made on the employer and when it was described in the Application to the Commission, which was prepared by her legal representative. It was not shrouded in legal technicality nor did the claim on its face fail to disclose the real issues that arose from the facts.
For the above reasons I accept the NAB’s submission that the Arbitrator erred in:
·Exercising his discretion under section 260(5) of the 1998 Act to allow Ms Tan to claim three injuries on 1 and 2 July 2003 and 5 April 2004 (‘Section 260(5) of the 1998 Act’).
·Exercising his discretion under section 260(5) to allow Ms Tan to claim the previously unpleaded frank injuries on 2 July 2003 and 5 April 2004 were ‘disease’ injuries (this is also a ‘Section 260(5) of the 1998 Act’ error’).
Procedural Fairness
The NAB submit that the Arbitrator denied it procedural fairness in not giving it the opportunity to investigate the previously unpleaded injuries/diseases either factually or medically.
The Commission is bound by the principles of procedural fairness (Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26; Damelian Pty Ltd v Romanas [2004] NSW WCC PD 93). The common law rules of procedural fairness provide that a person who is to be affected by a decision has a right to notice of the case against him, or her, to be heard in relation to it, and to have the matter decided by an unbiased decision-maker. Express statutory provisions may modify the common law requirements. The exact content of procedural fairness in Commission proceedings is determined by the provisions of the 1998 Act, the nature of the decision under review and the demands of the instant case (Kioa v West (1995) 159 CLR 550). A denial of procedural fairness is an error of law going to jurisdiction (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11).
The procedure before the Commission is set out in section 354 of the 1998 Act, as follows:
Procedure before Commission
(1)Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4)Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5)Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.
(7)An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8)…
Rule 71 provides that:
71 Measures to assist parties
The Commission is to take such measures as are reasonably practicable to:
(a)assist the parties to any proceedings to understand the nature of the proceedings and the legal implications of any assertion made in any documents or otherwise in the proceedings, and
(b)explain to the parties any aspect of the procedure or any decision or ruling made by the Commission in relation to the proceedings, and
(c)ensure that the parties have the fullest opportunity practicable to have their case in the proceedings considered without compromising the objectives of the Commission, and
(d)ensure that the parties have the opportunity to explore settlement in the proceedings.
There is no doubt that the Arbitrator erred in failing to accord both the NAB and Ms Tan procedural fairness in the conduct of this matter. This failure is related to the failure to properly exercise his discretion in relation to section 260 of the 1998 Act, which is set out above. The Arbitrator failed to provide the parties the opportunity to make submissions on the ‘three injuries’ issue.
Ms Tan consistently presented her dispute as a claim for weekly benefits as a result of an injury, being ‘anxiety and depression’, that arose as a result of the nature and conditions of her employment with the NAB. It was not until the multitude of hearing events were nearing completion, in December 2004, that she acceded to the Arbitrator’s pressure to reframe her claim against the NAB in different terms. For example, the Arbitrator stated, in the transcript of the reasons for decision (at page 693) as follows:
“I should say for the record that the question of whether there was a second injury was one that I actually raised with the parties myself towards the end of the arbitration phase but at a time when the parties were still able to address me both orally and in writing about that issue.”
Even then Ms Tan did not particularise her claim as relating to three injuries, but asked the Arbitrator to consider “two injuries sustained as evidenced by the medical reports provided. The latter injury was in relation to a deterioration of my condition in April 2004” (submission made by Ms Tan, via email, on 30 December 2004).
Following this, the Arbitrator proceeded to determine that Ms Tan had suffered three injuries.
In reading the documents that were before the Arbitrator and the transcript of the proceedings (over 850 pages) it appears that the Arbitrator, in attempting to conduct the proceedings fairly for Ms Tan, who was not legally represented, took an ‘activist’ role in relation to the consideration of Ms Tan’s case in the Commission that went far beyond his statutory role as an Arbitrator. The Arbitrator both misunderstood the nature of the discretion under section 260(5) of the 1998 Act and denied procedural fairness to both the NAB and Ms Tan. Ultimately I am of the view that Ms Tan was not always assisted by the Arbitrator’s intervention and that she did not clearly understand the direction that the proceedings took.
Weight of Evidence
Ms Tan submitted that the Arbitrator erred in giving undue weight to the ‘Draft Performance Appraisal’, the ‘First and Final Warning’ letter in the context of “discipline” under section 11A and failed to give weight to the ‘unreasonable actions’ of the NAB which led to the injury on 1 July 2003 (‘Weight of Evidence’).
Rule 70 of the Rules provides that:
70 Principles of Procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.
The weight to be given to evidence is a matter of discretion to be exercised by the Arbitrator. As I said in Knight v Eyles Nominees Pty Limited t/as Processed Forest Products [2004] NSWWCCPD 73:
“Interference with an Arbitrator’s discretionary judgement as to the weight of evidence should only be done where it is manifestly obvious the discretion has so miscarried that it has not been exercised fairly and lawfully.”
The Arbitrator considered the ‘Draft Performance Appraisal’ to be a “contemporaneous file note” of the meeting between Ms Tan and Ms Rowland on 22 April 2003. He considered it to be “important because … it’s the very day before Ms Tan herself first records symptoms that go beyond mere expressions of frustration… it was the very meeting where she discussed a draft performance review with Ms Tan (page 710 of the reasons)”. The Arbitrator discusses this document (“file note”) at length in the reasons and finds that “the file note refers to various strengths, and I think it corroborates …Ms Rowland’s general position that she tried to be balanced and tried to look at both strengths and weaknesses, and I don’t accept Ms Tan’s contention that she was just focusing on the negative side of things” (at page 711). The Arbitrator was entitled to give the ‘Draft Performance Appraisal’ probative value in the context of evidence of both Ms Tan and Ms Rowland as to the events that are alleged to have caused Ms Tan’s injury. He did not err in doing so and I concur with his view of the relevance and weight to be given to the document.
The Arbitrator refers briefly to the ‘First and Final Warning Letter’ but does not indicate its persuasiveness in his reasons. When read as a whole it appears to me that he considered that letter, dated 23 July 2003 was not of particular relevance. This is consistent with his findings on injury and he did not err in doing so.
The Arbitrator did not err in giving weight to the ‘Draft Performance Appraisal’ and the ‘First and Final Warning Letter’.
The 11A Defence and Reasons
The NAB submit that the Arbitrator erred in finding the ‘second disease injury’ on 5 April 2004 was not subject to the section 11A defence and in not providing adequate reasons for that finding.
Section 11A of the 1987 Act is set out at paragraph 32. It provides, in summary, a defence to a claim for compensation for injury where the employer demonstrates “…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”.
I have already found that the Arbitrator erred in reframing Ms Tan’s claim in terms of three injuries. It follows that the Arbitrator failed to properly consider and apply section 11A of the 1987 Act to her claim. The nature of the Arbitrator’s error is such that the decision must be set aside and a new decision made in its place. The NAB’s reliance upon section 11A is considered in relation to the whole of Ms Tan’s claim, in the reasons for making the substitute decision, set out below.
The NAB also argue that the Arbitrator failed to give adequate reasons for finding that section 11A was not made out in relation to the ‘second disease injury’. The reasons error goes to a broader issue than the ‘second disease injury’. The final day of hearing before the Arbitrator was on 22 December 2004. The Arbitrator then stated that he reserved his decision. The Arbitrator then gave his reasons ‘ex tempore’ over two days; from 2pm to 5pm on 25 January 2005 and from 10 am (for the whole day) on 26 January 2005. This is an unusual way to conduct proceedings and it put the parties to unnecessary cost and inconvenience. In particular it put Ms Tan, who had already expressed her distress at the number of attendances required of her in this matter, under more stress and inconvenience. It is not consistent with the Commission’s general practice. The purpose of giving reasons orally is to provide the parties with a timely decision, where it is possible to do so at the conclusion of the Arbitration. In this matter it would have been more appropriate for the Arbitrator to reduce his decision to writing, rather than requiring the parties to attend the Commission and sit for several hours, over two days, while he gave it orally. In any event the reasons now appear in the transcript of 25 and 26 January 2005.
An Arbitrator has a statutory duty to give reasons for a decision (section 294(2) of the 1998 Act and Rule 73). The standard of the adequacy of reasons given by a Commission Arbitrator must be determined in accordance with the nature of the decision itself, the statutory dispute resolution scheme, and the nature and obligations of the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6 and Fraternity Bowling & Recreation Club v Sartor [2004] NSW WCC PD 47). The failure to provide adequate reasons is an error of law (Soulemezis v Dudley (Holdings) Pty Limited (1987) 3 NSWLR 278; Belmont Night Patrol Pty Ltd v Woolworths Ltd & Anor [2006] NSWCA 128).
Reasons for decision should not only address the issues of law and fact necessary to lawfully decide the dispute, they should also be expressed in a way that is understandable to the parties. While a failure to state reasons with clarity may not reach the standard of a legal ‘error’ it is nonetheless a fundamental obligation on the Arbitrator to state his reasons clearly. When could this be more important than for a party who is not legally represented? Reasons serve not only to allow the unsuccessful party to determine whether or not an appeal is justifiable but also to explain fully the basis upon which the decision was arrived at (Soulemezis v Dudley (Holdings) Pty Limited (1987) 3 NSWLR 278; Belmont Night Patrol Pty Ltd v Woolworths Ltd & Anor [2006] NSWCA 128).
In this matter the Arbitrator’s lengthy oral reasons demonstrate a lack of clarity. This results from a number of factors, including: the fact they were given orally over two days, the arduous and unnecessary detail in which the evidence (relevant and irrelevant) was reviewed and the complexity that the Arbitrator’s own reframing of the claim brought to the proceedings. In my view the Arbitrator’s reasons are unsatisfactory, but not inadequate. They set out his findings of fact and the relevant law and have disclosed sufficient reasoning to allow Ms Tan and the NAB to clearly state the nature of their disagreement with them on appeal.
The Occupational Health and Safety Act 2000
Ms Tan submitted that the Arbitrator erred in not considering whether the conduct of the bank amounted to a breach of the Occupational Health and Safety Act 2000. In making this submission Ms Tan relies upon the Arbitrator’s failure to consider the “unreasonableness” of the NAB’s conduct in failing to respond to her distress at work and in planning a return to work program that placed her under the same supervisor.
Ms Tan’s submissions on this issue essentially repeat the arguments she makes as to the Arbitrator’s consideration of the weight of the evidence. They also overlap with her claims in relation to workplace injury management issues and to the rebuttal of the NAB’s claim to have acted in accordance with ‘reasonable discipline’ in the circumstances.
The Arbitrator does not have jurisdiction to make orders under the Occupational Health and Safety Act 2000. To the extent that issues of workplace health and safety were relevant to Ms Tan’s claim for compensation for a workplace injury, I am satisfied that he took such matters into account in coming to his decision.
Conclusions on Arbitrator Error
The Arbitrator erred in:
·the application of section 260(5) of the 1998 Act;
·denying the parties procedural fairness; and.
·failing to properly consider the application of section 11A of the 1998 Act.
Having found that the Arbitrator made a number of errors, I propose to set aside the decision and substitute a fresh decision. In doing so I have reviewed all of the evidence that was before the Arbitrator, including the transcripts of oral evidence. I have considered the parties’ submissions and the fresh evidence given on appeal. I do not propose to ‘reframe’ Ms Tan’s claim because to do so would be to repeat the Arbitrator’s error. In my view her claim, made on 21 July 2003, and the evidence she submitted in support of it are clear.
DECISION ON REVIEW
Injury (Section 4 of the 1987 Act)
In order to establish an entitlement to compensation Ms Tan must prove that she suffered from an ‘injury’, which is defined in section 4 of the 1987 Act as follows:
“injury –
(a)means personal injury arising out of or in the course of employment;
(b)includes –
(i)a disease which is contracted by a worker in the course of employment and to which the employment was a substantial contributing factor; and
(ii)the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation , acceleration, exacerbation or deterioration; and
(c)…
In considering whether Ms Tan suffered a compensable injury I have reviewed the evidence in relation to the following issues:
1.Did Ms Tan suffer an injury on 1 July 2003?
2.Did Ms Tan suffer a psychological injury on 2 July 2003?
3.Did Ms Tan suffer a psychological injury on 5 April 2004?
4.If Ms Tan suffered a psychological injury did it arise out of or in the course of her employment with the NAB?
Was there an injury on 1 July 2003?
The Arbitrator accepted that Ms Tan had been experiencing symptoms of anxiety and depression from April 2003. It was not until 1 July 2003, when the symptoms worsened. The Arbitrator then went on to find that Ms Tan had symptoms that did not develop into a psychological condition until 1 July 2003. He found that she received a ‘personal injury’ on that day. And further that she suffered a ‘disease’, deemed to have occurred on 2 July 2003 when she could not return to work. In my view there is no support for finding that Ms Tan suffered a personal injury on 1 July 2003. This categorisation of Ms Tan’s injury is inconsistent with Ms Tan’s evidence, the medical evidence, in particular that of Ms Tan’s General Practitioners, Dr Tan and Dr Lee, the evidence of other witnesses as to what was occurring in the workplace from April to July 2003 and the development of real and observable symptoms of anxiety and depression reported during that time. The categorisation of these reported symptoms up to 1 July 2003 as mere ‘emotional impulses’ as opposed to symptoms of a psychological condition is not supported by the evidence.
Was there an injury on 2 July 2003?
The NAB argue that Ms Tan’s psychological injury arose because of a ‘misperception’ and was not caused by her employment. The NAB has referred me to two relevant authorities; Townsend v Commissioner of Police (1992) 25 NSWCCR 9 (‘Townsend’); Yeo v Western Sydney Area Health Service (1999) 17 NSWCCR 573 (‘Yeo’). In Yeo, Neilson J referred (in obiter) to Townsend as “authority for the proposition that a misperception by a worker of otherwise innocuous matter, which misperception leads a worker to develop a psychiatric condition, does not constitute injury arising out of or in the course of employment”. However, the facts of this case are not directly comparable to those of Yeo or Townsend. I accept Ms Rowland’s and Mr Lawrence’s evidence that Ms Tan had not been performing to expectations, that she had taken actions in the course of her work that were considered unacceptable, and that Ms Rowland drew these to her attention. That was “a reality not a misperception” (Neilson J in Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32 at [22]).
I find that Ms Tan suffered from a psychological condition diagnosed as ‘anxiety and depression’. This condition was first diagnosed in July 2003 and, according to Ms Tan’s evidence, had been symptomatic since about April 2003. From 2 July 2003 she was incapacitated for work as a result of her injury and suffered an economic loss (see report of Dr Kossoff, dated 20 August 2003). Her psychological condition of ‘anxiety and depression’ is deemed to have occurred on 2 July 2003 (pursuant to section 15 of the 1987 Act). She has suffered periods of both total and partial incapacity for work since that time. At that time she was employed as a Mobile Mortgage Manager with the NAB. This finding is supported by the following evidence;
· Ms Tan’s statement and oral evidence of the onset of symptoms, including sleeplessness, headaches, depression and anxiety, from as early as April 2003 and continuing through July 2003.
· The medical evidence of Dr Tan, Dr Lee, and Dr Gojak.
Was there an injury on 5 April 2004?
The Arbitrator also found a third injury, the ‘second disease injury’ dated 5 April 2004. The question of whether Ms Tan suffered a separate injury on 5 April 2004 is critical to her claim for weekly benefits compensation. If it is found that there was no further injury after 2 July 2003 (the deemed date of injury pursuant to section 15 of the 1987 Act) then her claim for continuing weekly benefits compensation may be defeated by the NAB’s claim to a defence under section 11A of the 1987. Section 11A refers to action that is causative of injury, in this case action by the NAB prior to 2 July 2003. If Ms Tan establishes a second injury then the actions of the NAB in relation to the cause of this second injury must be considered, i.e. their actions after 2 July 2003 and prior to 5 July 2004. On the facts of this matter this goes to the NAB’s return to work plans for Ms Tan and, in particular, its insistence on Ms Tan returning to work under the supervision of Ms Rowland.
As stated above, the parties had a limited opportunity to put submissions to the Arbitrator on the question of whether a fresh injury occurred on 5 April 2004 (and none on the issue of three injuries). Ms Tan emailed the Commission on 29 December 2004 stating that:
“…I would therefore like to submit to the Commission for consideration that there were two injuries sustained as evidenced by the medical reports provided. The latter injury was in relation to a deterioration of my condition in April 2004 which was made worse and also caused me to develop a chronic illness due to the ongoing stressor of the protracted return to work process from the Respondent/Employer (para 2, page 6 and para 1 of page 7 of Dr Kossof’s report). The protracted return to work process was due to the Respondent’s failure to provide an Injury Management Plan and Return to Work Program for me when I was recovering from my initial injury circa Dec 2003, to the point where I could return to work to suitable duties, but was not provided with any, at all. The employer has also failed in the onus of proof that they have tried to find or offered any alternative work arrangements for me.”
The NAB commented on this email in a letter dated 4 January 2005 as follows:
“-The applicant only lodged one Notification of Injury in respect of the events leading up to July 2003. No Notification of Injury was lodged in respect to the events leading up to July 2003. No Notification of Injury was lodged in respect of any ‘injury’ or ‘deterioration of disease’ in April 2004.
-The Application lodged in these proceedings, drafted by Messrs Turner Freeman presumably under instructions, only pleads ‘injury’ due to the events leading up to July 2003.
-Until the applicant’s email of 29 December 2004, there was no allegation of a second injury in April 2004.
-Nowhere in her two long statements did the applicant describe an ‘injury’ in April 2004.
-None of her treating doctors recorded a history of ‘injury’ in April 2004. Importantly Dr Kossoff did not describe the deterioration of symptoms in April 2004 as an ‘injury’.
-None of her treating doctors recorded a history of ‘deterioration of a disease’ in April 2004. Again, Dr Kossoff did not describe the deterioration of symptoms in April 2004 as a ‘deterioration of a disease’.
-As recently as the last arbitration date (22 December 2004), the applicant herself denied she sustained two injuries. The applicant maintained that view even when the Arbitrator fully explained to her that she might succeed with the claim if he found she sustained a second injury in April 2004. In fact the applicant said words to the effect: ‘There was no second injury. My condition relates to my dealings with Mary Rowland’.
-If the fresh evidence of ‘two injuries’ was admitted, even under the guise of further submissions, the respondent will be denied procedural fairness. At no stage has the respondent had the opportunity to:
· Investigate through expert medical opinion (e.g. specific opinion from any of the treating doctors or Dr Kossoff on whether the applicant sustained a second ‘injury’ or an ‘aggravation, acceleration or deterioration of a disease’ in April 2004); or
· Test the new allegation under cross-examination.
-The above ‘fresh evidence’ of ‘two injuries’ is so at odds with the applicant’s original submissions of a ‘single injury’ that there is very strong and real suspicion of recent invention. Again the respondent has not had the opportunity to test the applicant’s fresh evidence under cross-examination.”
I have dealt with the procedural fairness issues above. I do not accept the submission that Ms Tan’s credit is impugned because she was pursuing a “recent invention”. She made her submission in response to the request and encouragement of the Arbitrator and, as she clearly states, was unaware of the complex legal issues that were involved.
The Arbitrator found that Ms Tan was partially incapacitated and fit to return to work for 30 hours per week, provided she was not supervised by Ms Rowland, from 24 November 2003 to 4 April 2004. He then found that as a result of the NAB’s refusal to allow Ms Tan to return to ‘suitable duties’ she suffered an exacerbation of her anxiety and depression, amounting to a further injury, on 5 April 2004 (transcript at page 774). The Arbitrator premised his ultimate findings on a finding that the NAB “was under a duty to provide suitable employment to Ms Tan at all times from 24 November 2003 to 4 April 2004 and failed to do so” (at [13] of the Certificate of Determination).
In my view the NAB’s submissions on the ‘5 April 2004’ injury are persuasive. They are also consistent with my view of the operation of section 260(5) of the 1998 Act, and the requirements of procedural fairness, as set out above. Whether or not Ms Tan had a further injury on 5 April 2004, she has not made a claim on the NAB for this injury. The NAB have not had the opportunity to consider liability in relation to it and there is, to date, therefore no dispute that is before the Commission in relation to a further injury on 5 April 2004. As I noted above, Ms Tan framed her claim to the NAB, and application to the Commission in the arbitral proceedings, and appeal application, in relation to one injury, being a psychological injury, ‘anxiety and depression’ arising from the terms and conditions of her employment with the NAB and referable to the action by the NAB from about April to July 2003.
Having found that Ms Tan did not suffer a further injury it has not been necessary to determine the questions argued in relation to the NAB’s return to work obligations to Ms Tan pursuant to Chapter 3 of the 1998 Act. However I note the NAB’s submission at the appeal hearing, that the Chapter 3 argument is a ‘red herring’. It is clear that, whether or not the NAB had an obligation to facilitate Ms Tan’s return to work, it was doing so. She was still employed by the NAB from November 2003 to April 2004 and the NAB was taking certain actions in relation to that employment. Whether or not the NAB’s insistence that she return to work under Ms Rowland caused Ms Tan to suffer a further injury in April 2004, whether or not that injury can be said to have arisen ‘out of or in the course of her employment’, whether or not her employment was a ‘substantial contributing factor’ to that injury, and whether or not the NAB’s actions were defensible under section 11A of the 1987 Act, must be determined if and when Ms Tan makes a claim on the NAB in relation to this injury. The ramification of this finding in relation to section 11A is considered below.
‘Arising out of or in the course of her employment’
I am satisfied that Ms Tan’s ‘anxiety and depression’ arose out of and in the course of her employment as a Mobile Mortgage Manager with the Bank. I accept her evidence, and the medical evidence, of the development of symptoms from around April 2003 in response to Ms Rowland raising concerns about her work and that she was incapacitated for work as a result of that injury from 2 July 2003. She has continued to suffer incapacity for work as a result of that injury.
Substantial Contributing Factor (Section 9A of the 1987 Act)
There is an obvious difficulty in the application of both section 9A and section 11A of the 1987 Act. Section 9A directs consideration to whether employment was a ‘substantial contributing factor’ to the injury (Mercer v ANZ Banking Group (2000) 48 NSWLR 740 at 745; Dayton v Coles Supermarkets Pty Ltd (2001) 22 NSWLR 46 at [29] McMahon v Lagana [2004] NSWCA 164 at [32]). Section 11A refers to an injury that was “wholly or predominantly” caused by the reasonable action of the employer. The Court of Appeal considered the construction to be given to sections 9A and 11A in Department of Education & Training v Jeffrey Sinclair [2005] NSWCA 465. The Court found that “it is necessary to understand s11A to mean that the employer is not liable where, to the extent that the employment contributed to the injury, that contribution was wholly or predominantly caused by reasonable action taken with respect to . . . discipline” (at [58]). In this matter the issues are not complicated by the allegation that there were two or more causes of Ms Tan’s injury. Ms Tan claims that the only cause of her injury was her employment with the NAB.
I am satisfied that Ms Tan’s employment was a ‘substantial contributing factor’ to her psychological injury (section 9A of the 1987 Act). The injury occurred at work and was directly referable to the nature of the work and the tasks she was required to do; for example; meetings with her supervisor and coaching sessions. There was no probative evidence to suggest that Ms Tan would have suffered the psychological injury of ‘anxiety and depression’ at about the same time if she had not been at work. There was evidence that Ms Tan had suffered from depression at the time of the break up of her marriage in 1992. This evidence was not probative of her psychological state at the time of the events in 2003 and 2004 and I do not find it relevant to her claim. There is also no probative evidence that Ms Tan’s lifestyle or activities outside her employment contributed to her injury.
Reasonable Disciplinary Action (Section 11A of the 1987 Act)
Reliance upon section 11A of the 1987 Act is argued by the NAB as an alternative to the proposition, which I have not accepted, that Ms Tan did not suffer an ‘injury’ as defined in section 4 of the 1987 Act.
Ms Tan claims that her ‘psychological injury’ was caused by a number of specific instances at work and I have accepted that claim, which led to the above finding that she had suffered an ‘injury’ as that word is defined in section 4 of the 1987 Act. However section 11A requires a consideration of whether these causative factors were part of a reasonable process of “discipline”. The 1987 Act does not restrict the meaning of ‘discipline’ to a narrow context (Department of Education & Training v Jeffrey Sinclair [2005] NSWCA 465).
Neilson J in Kushwaha v Queanbeyan City Council [2002] 23 NSWCCR 339 (‘Kushwaha’) provided guidance on the approach to be taken to a consideration of section 11A of the 1987 Act (although the current section 11A differs slightly from the section considered by Neilson J the principles are equally applicable). The meaning of ‘discipline’ in section 11A was considered by Neilson J at 362, where he said:
“It can be seen, therefore, that the primary meaning of “discipline” is learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of punishment, chastisement is secondary to the primary meaning although this word is often used in this sense in popular speech. . . . the word used in an Act of Parliament must be given its full meaning, unless the context otherwise requires. Such a context does not appear to me to be called for in the interpretation of s 11A(1).”
The NAB claim that Ms Tan’s work was in need of improvement, specifically in relation to her ‘introducers’, and that Ms Rowland was taking steps to address this. It is Ms Tan’s response to the “process” adopted by the NAB to deal with this alleged unsatisfactory performance which is relevant to section 11A (Kushwaha at 358-359; Manly Pacific International Hotel Pty Ltd v Doyle (1999) 19 NSWCCR 181).
The determination of whether an employer’s actions were ‘reasonable’ pursuant to section 11A is a question of fact (Commissioner of Police v Minahan (2003) NSWCA 239). Therefore it is critical to consider exactly what the evidence discloses about the NAB’s conduct in relation to the incidents that are said to have caused the injury in the relevant period, namely from about April 2003 to 2 July 2003. Questions of reasonableness will inevitably involve issues of fairness in the context of the employment relationship (Pirie v Franklins Ltd [2001] NSWCC 167).
Ms Tan’s account differs significantly to that of Ms Rowland. In my view Ms Rowland’s evidence is to be preferred and is supported by the weight of evidence. She denies ever bullying Ms Tan, or raising her voice in talking to her. Her account of the way in which she spoke to and treated Ms Tan, i.e. no differently from other employees under her supervision, is persuasive. Ms Rowland consulted with colleagues about how to deal with issues of Ms Tan’s performance. Shortly after assuming her role as Ms Tan’s manager she spoke to Ms Tan’s immediate past supervisor, Mr Newcombe, to ensure that she had a more complete picture of any performance issues. She also spoke to Ms Waller, who at that time was the Multicultural Market Advisor, to check whether there were cultural factors involved that she was not fully appreciating.
I do not accept Ms Tan’s evidence that there were no questions or concerns about her work performance prior to Ms Rowland assuming her supervision. There is persuasive evidence to support the fact that the NAB was not satisfied with Ms Tan’s performance at work and that this was communicated to her. I accept Mr Newcombe’s evidence that Paul Goldring had complained about her manner and attitude to staff and that he personally had spoken to Ms Tan about this. He also received a complaint about Ms Tan from “staff at Lending Services” and spoke to Ms Tan about this. The evidence of Mr Newcombe, Mr Imbruglia, Mr Mohamed, Ms Waller and Mr Lawrence refers to concerns about Ms Tan’s manner and communication style at work. Ms Rowland’s evidence that Ms Tan “would often talk over the top of me and refuse to listen. She would raise her voice and continually disagree with me”, is consistent with the other evidence and I accept her account.
In relation to the action taken/process adopted by the NAB to address concerns about Ms Tan’s performance I find as follows:
·I accept Ms Rowland’s account of the meeting held on 22 April 2003 to discuss how Ms Tan was dealing with her ‘inactive introducers’. It was reasonable for Ms Rowland to prepare and discuss a draft performance plan. Ms Tan objects strongly to the fact that the NAB’s formal performance appraisal system was not strictly followed. In my view this does not make Ms Rowland’s action in meeting with Ms Tan and having a discussion about her performance unreasonable. I note that the NAB does not rely upon the ‘performance appraisal’ ground in section 11A.
·I accept Ms Rowland’s evidence that when meetings arranged with Ms Tan to discuss her performance, efforts were made to arrange a suitable time.
·I accept Ms Rowland and Ms Waller’s account of Ms Tan’s conduct of the business lunch in April/May 2003. I find that it was reasonable for Ms Rowland to seek to meet with Ms Tan to discuss this meeting. Ms Rowland sought to give her feedback on both the positive and negative aspects of her performance at the business lunch.
·I do not accept Ms Tan’s claim that she was being asked by Ms Rowland to act in a way that was contrary to the NAB’s policies. I accept Ms Rowland’s evidence that she had been contacted by Event Finance and as a result had directed Ms Tan to visit the company to build relationships with the NAB and promote its products. This was not an unreasonable or unauthorised request.
·I am satisfied that it was Ms Rowland’s responsibility to counsel Ms Tan in relation to dissatisfaction by the ‘credit department’ with her work, and that she did this in a professional and reasonable way by discussing it with Ms Tan and suggesting further training with that department.
·I accept Ms Rowland’s account of her handling of a complaint by a Mr Ling, in June 2003. I am not satisfied that, as Ms Tan claims, she was “discredited” and “humiliated” by Ms Rowland.
·I find that it was reasonable for Mr Lawrence to request a meeting with Ms Tan to discuss her difficulties with Ms Rowland and Mr Ling’s complaint. He declined to meet her without Ms Rowland being present.
·It was reasonable for Ms Rowland, on 30 June 2003, to advise Ms Tan that she was arranging a meeting with her “in the next couple of days”. While I accept that this distressed Ms Tan, who emailed Ms Rowland to ask that “all further communication directed from her to me be via e-mail” as she was “threatened” by Ms Rowland’s presence, I do not accept that it amounted to bullying or harassment as Ms Tan states.
On the numerous other (less significant) instances recounted in the evidence, where Ms Tan alleges Ms Rowland behaved in a bullying and harassing way, I prefer the evidence of Ms Rowland.
In my view the weight of the evidence is that Ms Tan was appraised of a number of performance issues in her work as a Mobile Mortgage Manager with the NAB from May 2002 until and throughout early 2003. Ms Rowland was her supervisor and she attempted to deal with these issues in a reasonable manner. Ms Tan did not accept this supervision and considered it harassing and bullying. Notwithstanding that this was her perception, in my view the process of ‘discipline’ (given its broad meaning) adopted by Ms Rowland in dealing with Ms Tan’s performance issues, was reasonable. The process adopted by the NAB, and carried out by Ms Rowland, of drawing Ms Tan’s unsatisfactory performance to her attention and in assisting her to improve, by way of regular meetings, coaching sessions, offering additional training and regular office discussions, was reasonable disciplinary action.
I have carefully considered the action by Mr Lawrence in issuing Ms Tan, on 23 July 2003, with a ‘First and Final Warning in Relation to Professional Misconduct’. This letter is not relevant to the section 11A defence argued by the NAB as it occurred after Ms Tan is deemed to have suffered an ‘injury’ on 2 July 2003.
Ms Tan has consistently argued that the action by the NAB in relation to facilitating her return to work was not reasonable. The NAB persistently sought to engage Ms Tan in mediation to facilitate her return to work under Ms Rowland. This condition was unacceptable to Ms Tan and there was medical evidence, from Dr Tan and Dr Kossoff that a return under this condition could exacerbate her depression and anxiety. The evidence of Mr Ferris of the NAB, accepted by the Arbitrator, was that this was an initial ‘condition’ of Ms Tan’s return to work, that would be subject to review if “it didn’t work out”(transcript at page 770). It was the NAB’s consistent position from November 2003 that Ms Tan should return to work under Ms Rowland’s supervision.
However these events occurred after Ms Tan suffered her ‘injury’. There is no dispute before the Commission in relation to a claim for an injury alleged to have occurred on 5 April 2004 and the section 11A defence claimed by the NAB in relation to her injury of 2 July 2003 operates to deny Ms Tan weekly compensation benefits.
I realise that this is not an entirely satisfactory procedural outcome for Ms Tan in that she must now make a claim upon the NAB in relation to the alleged injury of 5 April 2004, if she continues to argue and entitlement to weekly benefits compensation arises from it. Nonetheless the Commission must determine the matter according to law and to the substantial merits of the case. The Arbitrator, in inviting Ms Tan to significantly change her claim and her case before him, erred in the number of ways described in this decision. To allow the claim to be so changed on appeal would be to repeat those errors.
I find that the NAB has established the defence under section 11A of the 1987 Act and that Ms Tan’s psychological injury of ‘anxiety and depression’, deemed to have occurred on 2 July 2004, was “wholly… caused by reasonable action taken or proposed to be taken by or on behalf of the [NAB] with respect to… discipline”.
These finding mean that Ms Tan has not established an entitlement to weekly compensation and medical expenses pursuant to the 1987 Act. The decision on appeal must therefore be in favour of the NAB.
COSTS
Ms Tan has been unsuccessful in her own and in the NAB’s appeal. However, the NAB does not seek an order for costs. I note that the Arbitrator’s order in relation to the costs of the matter before him is not challenged on appeal by either Ms Tan or the NAB. That costs order was subject to an application for reconsideration by Turner Freeman Solicitors which was dismissed. In the circumstances, I do not propose to revisit the Arbitrator’s costs order on appeal. However, the appropriate order with respect to the costs of the appeal is ‘No order as to the costs of the appeal’.
Dr Gabriel Fleming
Deputy President
8 June 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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