Tarbuk v Myer Holdings Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Tarbuk v Myer Holdings Limited [2022] NSWPIC 349
APPLICANT:	Milica Tarbuk
RESPONDENT:	Myer Holdings Limited
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	30 June 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (1987 Act) in relation to psychological injury agreed to have been sustained in the course of employment with the respondent; issue as to whether the respondent had a defence under section 11A of the 1987 Act in relation to discipline and the provision of employment benefits; Held – respondent has not established a defence under section 11A; the lump sum claim is remitted to the President for referral to a Medical Assessor to assess the permanent impairment in relation to the psychological injury.
DETERMINATIONS MADE:	1. The Application to Resolve a Dispute is amended to delete the date of injury of “13 March 2019” where ever it appears and instead insert “20 November 2019” as the deemed date of injury, being the date of the lump sum compensation claim. 2. The respondent has not established a defence under section 11A of the Workers Compensation Act 1987. 3. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as a result of psychological injury with a deemed date of injury 20 November 2019 (date of lump sum claim). 4. The documents to be referred to the Medical Assessor are to include those attached to the Application to Resolve a Dispute, Reply and Applications to Admit Late Documents dated 27 April 2022 and 10 May 2022 and a copy of this Certificate of Determination/Statement of Reasons.

STATEMENT OF REASONS

BACKGROUND

Ms Milica Tarbuk was employed by the respondent, Myer Holdings Limited, as a visual merchandiser and stock flow team member. She sustained a psychological injury in the course of her employment. Her claim for compensation in these proceedings is confined to lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act).
By consent, the Application to Resolve a Dispute (ARD) was amended to delete the date of injury of “13 March 2019” where ever it appears and instead insert “20 November 2019” as the deemed date of injury, being the date of the lump sum compensation claim.
The respondent agreed at the arbitration hearing that Ms Tarbuk sustained a work-related psychological injury. It confirmed the issues in dispute are confined to the following:
(a)    what are events which gave rise to the psychological injury?
(b)    whether the respondent has established a defence under section 11A of the 1987 Act in relation to “discipline” and “employment benefits”?
(c)    if the respondent fails to establish such a defence, the remaining issue relates to the degree of permanent impairment suffered by Ms Tarbuk, which is to be determined by a Medical Assessor appointed by the Personal Injury Commission (the Commission).

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. They have come to an agreement in relation to the proposed apportionment.
The matter proceeded to Arbitration Hearing on 19 May 2022. Mr John Dodd, counsel, instructed by Mr Anthony Macri, solicitor appeared for Ms Tarbuk. Mr Adrian Combe, counsel, instructed by Mr Peter Lichaa, solicitor, and Ms Jane Joel from Myer.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and taken into account in making this determination:
(a)    the ARD (492 pages);
(b)    Reply (731 pages);
(c)    Application to Admit Late Documents filed by the applicant dated 27 April 2022 (52 pages), and
(d)    Application to Admit Late Documents filed by the respondent dated 10 May 2022 (422 pages).
There are 1,697 pages of documents in evidence. Unfortunately the respondent has put in its reply and late documents copies of material that already appears in the ARD. In addition both parties have attached clinical notes which include voluminous pathology test results and treating records for other medical conditions that have no relevance to this matter. This practice is unhelpful as it increases the time to read the material and determine the matter.

Oral evidence

There was no oral evidence. Both parties made oral submissions which have been sound recorded, and a copy of the recording is available to the parties.

FINDINGS AND REASONS

Legal principles

The parties have agreed that Ms Tarbuk has a psychological injury from work-related events. However, section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent has the onus of establishing a defence under section 11A. If the respondent succeeds in establish such a defence, then Ms Tarbuk is not entitled to receive any compensation.
In Ms Tarbuk’s case the aspects of section 11A of the 1987 Act being relied upon by the respondent are “discipline” and “provision of employment benefits”. The respondent needs to establish two aspects in order to satisfy section 11A. Firstly, that the psychological injury was “wholly or predominantly caused” by the employer’s actions in relation to discipline and/or employment benefits. Secondly, the respondent then needs to establish that the employer’s conduct in that regard was reasonable action.
In Attorney General’s Department v K[1]Roche DP, in considering the issue of establishing psychological injury in circumstances of the worker’s perception of real events at work, provided the following useful summary of the relevant authorities on this issue:

“(a) employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b) a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c) if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d) so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);
(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.” (at [52])
[1] [2010] NSWWCCPD 76, Attorney- General v K.

In Hamad v Q Catering Limited[2] the proof required in relation to a section 11A defence dealing with the “wholly or predominantly” aspect of section 11A was discussed.
[2] [2017] NSWWCCPD 6, Hamad.
At [45] DP Snell in Hamad stated,
“The causal test in s 11A(1) is ‘different, and more difficult’, in that the test does not involve proof of ‘personal injury arising out of or in the course of employment’ (the s 4(a) test), or that employment was a ‘substantial contributing factor’ to the injury (the s 9A test), but rather whether the injury was ‘wholly or predominantly caused’ by the relevant action. It is to be proved on the balance of probabilities; normal principles governing proof of causation apply, but subject to the fact that what must be established is a different statutory test to those in ss 4 and 9A. And the onus falls on the employer, rather than the worker.”
Snell DP also considered the extent to which an Arbitrator (now Member) can make commonsense findings. He referred to various legal authorities, which found there are limits on the use of commonsense reasoning and that it is restricted to matters within the realm of common knowledge and reasoning.
At [85] Snell DP found,
“The Arbitrator was entitled to have regard to the sequence of events; he was entitled to have regard to his common knowledge and experience of ordinary life. However, as the Arbitrator previously observed at [62] of his reasons, a series of events can have a cumulative effect, and may be causative of a psychiatric condition which does not manifest itself until a later time. That does not mean that the earlier events in the series are not causative (see the discussion in Secretary, Department of Family and Community Services v Colleen Jones by Executor of her Estate Carol Hewston[2016] NSWWCCPD 63 at [33]- [45]).”
Snell DP added at [88],
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
The Court of Appeal’s decision in Northern NSW Local Health Network v Heggie[3] contains the relevant legal principles in relation to whether an employer’s conduct is reasonable. At [59] it was stated:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i) A broad view is to be taken of the expression "action with respect to discipline". It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.” (bold in the original)
[3] [2013] NSWCA 255.
The test of reasonableness is an objective test and referred to cases such as Jeffery v Lintipal Pty Ltd[4], Baldwin v Greater Building Society Ltd[5] and Irwin v Director General of Education[6].
[4] [2008] NSWCA 138, Jeffery.
[5] [2011] NSWWCCPD 18, Baldwin.
[6] Unreported 18 June 1998, No 14068 of 1997, Irwin.
In Baldwin at [96] Roche DP stated it is necessary to have regard to all the circumstances, including the seriousness of the conduct that has led to the disciplinary action, the nature of the employer’s business and the worker’s position in that business. At [104] he also stated that mere compliance with a set procedure that the employer believes is reasonable will not necessarily mean that an employer’s conduct is in fact reasonable in all the circumstances and Roche DP cited Basten JA in Jeffery at [50].
Before the Commission can apply the principles discussed in such cases it is necessary to identify the events which gave rise to Ms Tarbuk sustaining a psychological injury because this will inform whether “discipline” and/ or “provision of employment benefits” is the whole or predominant cause of her psychological injury.
There does not seem to be dispute that certain events occurred, although the detail surrounding them and the emphasis the protagonists placed upon them does differ.
Ms Tarbuk relies upon a broader range of events which go beyond the characterisation of “discipline” or “employment benefits” whereas the respondent relies on the events occurring on 13 March 2019, which its counsel submitted “triggered” Ms Tarbuk leaving work in an emotional state.
Ms Tarbuk relies upon:
(a)    her workload;
(b)    being given directions by multiple persons;
(c)    interpersonal work relationship with Ms James:
(i)re-arrangement of the mug display when Ms Tarbuk was on her lunch break;
(ii)giving Ms Tarbuk directions;
(iii)ignoring Ms Tarbuk, and
(iv)the stockroom incident on 13 March 2019.
(d)    on 31 March 2018 needing and being prescribed medication for anxiety caused by work;
(e)    on 17 December 2018 consulting Dr Metti and being prescribed medication for anxiety caused by work;
(f)    on 5 March 2019 crying at work and speaking to Ms Neale of her difficulty with multiple managers giving her directions;
(g)    her response to requests on 8, 11 and 13 March 2019 to provide a medical certificate for her sick day on 8 March 2019; and
(h)    her interaction with Mr Grimshaw on 13 March 2019 about the medical certificate request.
The respondent does not dispute these events occurred. However, it submits it was the medical certificate event on 13 March 2019 that caused Ms Tarbuk’s psychological injury, and this comes within the concept of discipline or provision of employment benefits. It argues being requested to provide a medical certificate relates to the provision of employment benefits such as sick leave and speaking to Ms Tarbuk about her lying about having a certificate falls within the concept of “discipline”.
In order to consider counsels’ submissions it is helpful to summarise some of the main lay evidence, the treating medical evidence and the expert medical opinions.

Ms Tarbuk’s statements

Ms Tarbuk has provided a lengthy statement dated 8 December 2020 comprised of 220 paragraphs[7]. She states she commenced work with Myer at Liverpool in 1997 initially as a casual sales assistant. In 2007 she was employed by them part-time and in 2013 fulltime. In early 2017 she became a full time visual merchandiser and stock flow team member. At [28] she states she had accrued 300 to 400 hours of sick leave as she rarely took sick leave.
[7] ARD pp 21- 51.
She says she reported to Lisa Neale, the visual merchandising manager. Ms Neale’s manager was Trent Grimshaw, the store operations manager and he reported to
George Karagiannis, the store manager. Ms Tarbuk describes her work in the electrical department re-stocking shelves and being given directions by Mr Grimshaw. She says after her tea break she would report to Ms Neale who would give her instructions for work in the luggage and homewares departments. She estimates she had to empty about 20 roll cages of stock per shift.
Ms Tarbuk provides details of a number of physical injuries she sustained in the course of her employment and states she never made workers compensation claims in relation to these injuries.
At [81] she says in early March 2018 she was struggling in her role as the volume of her work was too large. Additionally she says she was reporting to two different people, Ms Neale and Mr Grimshaw. She said she could be assigned different tasks to be done at the same time. She says she could not keep up and began to experience anxiety and feelings of depression. She attended Dr Metti, her general practitioner who prescribed Escitalopram. She says she took it for three months until her brother advised her to try Chinese medicine, which she did with no effect. At [83] she relates attending Dr Metti in December 2018 as her symptoms had continued.
After relating further background details, Ms Tarbuk at [101] returns to describe how she struggled in March 2018. She describes that Melissa James became the customer service manager of the homewares and electrical department. At [109] she says Ms James would ask her to change her working methods, to re-display or change the order of stock she had placed on the shelves. At [110] she describes an incident which later is mentioned as occurring in March, when Ms Tarbuk had stacked porcelain cups on a stand and when she returned after lunch she found they had all been dismantled and placed in a trolley at the direction of Ms James. Ms Tarbuk says she felt “undermined and confused” by this. She also states that on other occasions Ms Tarbuk would place stock in a temporary spot while she was creating a permanent space for it and Ms James would complain to Ms Neale that she had placed it incorrectly. She says Ms James did not ask her to explain. Ms Tarbuk says she again found this confronting and confusing. At [112] she gives another example of Ms James getting another staff member to remove stock she had placed on a display. Ms Tarbuk said she was frustrated by Ms James actions.
She also refers at [113] to Ms James asserting that Ms Tarbuk placed stock on shelf incorrectly. She says Ms James’s contention that she should have placed the newer stock in front is not correct and Myer had a policy of the older stock being in front.
At [114] Ms Tarbuk says in late February 2019 she spoke to Ms Neale about Ms James giving her orders and changing her work without speaking to her and that Ms James did not communicate with her in a direct, professional and friendly manner. Ms Tarbuk admits that she could be abrupt towards Ms James as she was resentful that she had three people telling her what to do, often simultaneously.
At [116] Ms Tarbuk describes being overwhelmed and exhausted by this situation on 5 March 2019 and she says she went to see Ms Neale but she was not in the office and so she sat down and started to cry. Two other staff members including Ms Pratt were present, and one rang Ms Neale, who came. At [118] Ms Tarbuk says she told Ms Neale she could not cope answering to three people. Ms Tarbuk says Ms Neale would inform Mr Grimshaw and Ms James to leave her alone and if they had a problem with her work to report it to Ms Neale. Ms Tarbuk said from then on Ms James did not interact with her.

Ms Tarbuk says she does not know if Ms James ever complained to Ms Neale about her but if she did Ms Neale never raised them with her.
Ms Tarbuk explains on 8 March 2019 she was off work as she had diarrhoea and she admits she lied when asked to produce a medical certificate. She said she did this as she was extremely anxious and fearful, and she felt she was being targeted. She said she was prepared for her pay to be docked for that day to solve the problem. She says on 13 March 2019 she had propped open the door to the stock room so she could bring out a trolley of stock. She says she knew this was against Myer policy, but she did it to get her duties completed in the expected time frame. She says she saw Ms James and she continued to push the trolley as she did not realise Ms James had unblocked the door causing it to close. She says the door hit the front of the trolley and some of the glasses in boxes fell off and hit the floor. She says Ms James could have instead held the door open for her. She says she said to Ms James “I was really upset by that. You could have helped me. Do you have a problem with me?” She says Ms James said “No” and Ms Tarbuk replied “Well, I have a problem with you”. Ms Tarbuk says she was shaking and shocked and so took her tea break. She says she was crying and returned to the store and saw Ms Neale, who told her that
Mr Grimshaw wanted to see her.
Ms Tarbuk says at [157] she said to Mr Grimshaw about the medical certificate issue “If it’s a problem, sweetheart, then dock my pay for that day”. She says Mr Grimshaw shouted at her saying “you do not follow instructions”, saying it three times. She says she felt bullied, confronted and frightened and she told Mr Grimshaw “I cannot breathe. I have to go”.
The balance of Ms Tarbuk’s lengthy statement has been read by me however, I will not summarise the same in these reasons.
Ms Tarbuk provided a supplementary statement dated 19 April 2022 in which she corrected some minor errors made in her first statement[8].
[8] AALD 27 April 2022 p1.

Zivorad Tarbuk’s statement

Zivorad Tarbuk is the husband of Ms Tarbuk. His statement is dated 8 December 2020[9]. He states that in about March 2018 he noticed that she came home from work and appeared to be absolutely exhausted, she seemed to be spaced out and had difficulty concentrating. She seemed to be very emotional, sad and at times teary. He lists the problems he observed in her in the following year, which culminated by March 2019.
[9] ARD p 52.

Myer’s records

A lost time injury report form which is undated and unsigned refers to an incident dated 13 March 2019[10]. It is accompanied by an incident/near miss report and an initial contact form[11]. In the lost time injury form it is stated that Ms Tarbuk called in sick on Friday 8 March and was asked by Trent Grimshaw to produce a doctor’s certificate. On Monday Lisa Neale asked Milica for the certificate but she said she left it at home. On Wednesday she was asked for it again and she said she had lost it. She later said she had not been to the doctor and had only spoken to him on the phone about her gastro bug. It is also noted,
“I George Karagiannis caught up with Milica on her way out of the store in our staff entry could see that she was upset and asked her what is going on. Milica’s reply
[10] ARD p 75.
[11] ARD p 84.
I need to go if I don’t I am going to have a heart attack. I said are you going to be ok going home she said yes and continued to leave the store refusing to talk to me.”
In a Myer initial contact form the above account is repeated and it is noted that Ms Tarbuk said she was “was extremely upset following interactions with her ASM (Trent Grimshaw) on 13/3/19 and she left work; worker reported that she experienced symptoms such as tight chest and shortness of breath”.
It is also recorded that she felt “very unfairly treated” relating to how Mr Grimshaw spoke to her and the requirement to submit a medical certificate when she had taken only one day off. She said she had not had to do this previously. It is noted that Ms Tarbuk said she felt disrespected by the way Mr Grimshaw spoke to her and she feels constantly picked on. It is also recorded that she said she has been bullied and treated unfairly over the last couple of weeks and that last week she broke down and told Lisa she was not able to cope. Lisa was to speak to Melissa James but there was no response or follow up from Lisa. She referred to Melissa constantly giving negative feedback, such as you are always dumping stock and come in late from your break. It is noted “worker reported that there has been a build -up of events which has led to her break down and she did not feel valued for her work”. An example is noted that Melissa asked Ms Tarbuk to fill up a display with glassware and she came back from her break, Melissa had moved the glassware and Melissa gave her no feedback and she felt ignored.
This record also has the history that she had been taking alternative medicine from Cabramatta to help reduce the stress and anxiety and she had been crying for a week prior to this incident[12].
[12] ARD p 12.

Lisa Neale’s statement

Lisa Neale gave a statement dated 11 April 2019[13]. She is the Visual Merchandising Manager at Myer Liverpool and Ms Tarbuk’s direct manager. At [14] she says on 5 March 2019 she was telephoned by an employee to advise her Ms Tarbuk was upset in the workplace. She went to her location and found Ms Tarbuk crying with two employees.
Ms Tarbuk told her that too many people give her directions about what to do in her job.
[13] ARD p127 and Reply p 54.
Ms Neale says she told Ms Tarbuk that if there was new stock coming in to come and see her each morning and together they would work out where it was to be placed. Ms Neale says she later informed Ms Samios and Ms James that if Ms Tarbuk spoke to them about stock placement to ask Ms Tabuk to see Ms Neale about it instead.
Ms Neale also gave a statement dated 25 February 2020[14]. At [27] she says she had no problem with Ms Tarbuk accepting direction from her, but she had been told she would not accept or cope with direction from other managers. She says she does not recall Ms Tarbuk speaking to her in February 2019 about Ms James, but she did recall Ms Tarbuk being upset on 5 March 2019 about multiple persons giving her directions. Ms Neale says she spoke to Ms Samios and Ms James to request directions go via her.
[14] ARD p 197.

Melissa James’ statement

Ms James was the Customer Service Manager in the Homewares and Electrical Department at the Myer Liverpool store. She has provided a statement dated 11 April 2019[15]. At [14] she states that Ms Tarbuk reports to Lisa Neale, her supervisor and at [15] she says the only direct interactions she has with Ms Tarbuk is to say good morning to her or if she was to ask a question, which was rare. At [22] she says she has never given negative feedback directly to Ms Tarbuk as that is not her role, as she is not one of her team members.
[15] ARD p 114.
Ms James says at [37] she can vaguely recall on 5 March 2019 that Ms Tarbuk placed some stock, glassware, on a tower and Ms James says this was correct at that time. She says that she and another staff member then decided to move this product and put different mugs there. She says it happens consistently that they relocate stock and “I would not see any reason to approach the staff member who did the original display, to explain or clarify why the stock was moved”. I pause here to observe that while this may be a practical approach, however, when Ms Tarbuk had correctly placed stock and then it was replaced straightaway when Ms Tarbuk was on a break, one can envisage that this could lead Ms Tarbuk on her return to feel her work was for naught or unvalued.
Ms James says it was around 5 March 2019 that Lisa Neale asked Ms James to stop interacting with Ms Tarbuk as Ms Neale said she was better at managing Ms Tarbuk.
Ms James says on 13 March 2019 she had seen the reserve stock room door was propped open and she had previously asked Ms Tarbuk not to do this because of the risk of high store theft. She said she saw Ms Tarbuk in the stockroom but did not say anything to her as per Ms Neale’s direction and Ms James closed the door. She says about five minutes later she heard a loud crash and she saw that Ms Tarbuk had an accident with a trolley hitting a glass display. She said she asked Ms Tarbuk if she was ok and she replied, “no not really”. She then walked away, and Ms Tarbuk approached her and asked why she had closed the door in her face. Ms James said she had not as Ms Tarbuk was a few bays away and Ms Tarbuk replied she was not. Ms Tarbuk asked her “do you have a problem with me?” Ms James says she answered, “not I don’t actually”. And Ms Tarbuk responded that she had a problem with Ms James. Ms James said she found this upsetting and went straight to see Trent Grimshaw.
I note that Ms Neale does not say that she told Ms James not to speak to Ms Tarbuk, she just says if Ms Tarbuk asked Ms James about stock to tell her to come to Ms Neale to speak about it.
Ms James provided a further statement dated 26 February 2020. She has married and has the surname Bahemia. However, for consistency I have continued to refer to her as
Ms James.

Leanne Pratt’s statement

Leanne Pratt provided at statement dated 19 February 2020[16]. She is a visual stylist at the Myer Liverpool store. She says she used to have morning tea and lunch with Ms Tarbuk but did not socialise with her outside work. At [22] she describes Ms Tarbuk as hardworking, conscientious and very particular and passionate about homewares. Ms Pratt says
[16] ARD p 172.
Ms Tarbuk would always push herself and set high standards. Often, she would go beyond what she was requested to do. She says she would clean, and the reserve areas were immaculate.
She says Ms Tarbuk took direction but did voice her difference of opinion and her ideas. At [26] she mentions that Ms Tarbuk told her that Cisco who worked in the dock area wanted her to process the roll cages quickly as they were piling up on the dock. Ms Tarbuk said to Ms Pratt that he would say she was not working fast enough.
At [28] she says she recalls Ms Tarbuk saying that Ms James had suggested she was dumping stock on the visual merchandising tables and not processing it correctly. This annoyed Ms Tarbuk, as she was so conscientious.
At [33] she says she recalls on 5 March 2019 seeing Ms Tarbuk very upset, crying and inconsolable and Ms Neale came to speak to her. At [41] she says she was aware
Ms Tarbuk was struggling at work, she seemed overwhelmed by the many trolleys on the dock.

Adriana Samios’ statement

Ms Samios provided a statement dated 20 February 2020[17]. She was a visual stylist at the Myer Liverpool store. She says it is easier to work with the reserve doors open, but it is store policy to have them closed during trading hours. At [21] she states she does not believe
[17] ARD p 181.
Ms Tarbuk had any issue with receiving direction or instruction, but she seemed frustrated by having to receive directions from different managers. At [23] she described Ms Tarbuk as hard working and determined. She had a passion for homewares. She describes at [25] that she believed Ms Tarbuk put pressure on herself and took on a lot. She recalled her complaining about Cisco on the dock.
She says she disagrees with Ms Tarbuk that the glassware falling off the trolley occurred in the store not in the reserve area and she said it was about five minutes after Ms James had closed the door.

Trent Grimshaw’s statement

Mr Trent Grimshaw, the assistant store manager at Liverpool Myer store made a statement dated 5 April 2019 and he states it was in response to Ms Tarbuk’s version of the incident on 13 March 2019[18]. He said he relied on his statement dated 14 March 2019:
“Milica and l crossed paths as she was exiting the Loading Dock and I was entering. At this time I said, Hi Milica how are you? She said good thanks, I asked Milica what time she was finishing today and asked her to come and see me prior to her going home as I wished to discuss the medical certificate.
Milica said, ''I didn't get one, so what’s to discuss?" I again said just come and see me before you go home please, Milica said ‘I listen to my Doctor, not you, just don't pay me If It's gonna be a drama'. Again, I said Milica just come and see me upstairs later please. Milica then said, ‘listen sweetheart I don't have to see you and I'm not going to talk to you', I then said ‘excuse me Milica, my name ls not sweetheart, my name is Trent’.”
[18] ARD p 139 and Reply p 100.
Mr Grimshaw has made a further statement dated 26 February 2020[19] which I have read but will not summarise as much of it is background information regarding Ms Tarbuk’s role and that of other staff members.
[19] Reply p 576.

George Karagiannis’s statement

Mr Karagiannis is the store manager at the Myer Liverpool store. He says he had been approached by Ms James and Ms Neale about Ms Tarbuk not taking directions in her work and he says he advised Ms Neale to spend time with Ms Tarbuk to ensure she knows the expectations and what was required. He adds “Milica is a very experienced employee of long-term standing and knows our systems and procedures very well but it is important that the line manager conveys this clearly to her, and records that”.[20]
[20] ARD p132 and Reply p 60.
He relates seeing Ms Tarbuk as she left the store on 13 March 2019, and he could see she was upset as she looked agitated and teary. He confirms she said, “I need to go, if I don’t go, I’m going to have a heart attack”.

Wetherill Park Medical Centre

These records show Lexapro was prescribed by Dr Lawal on 31 March 2018. The doctor records Ms Tarbuk had “Low mood-> 1y ear. Poor sleep. Depressed mood. Stress at work and home. No suicidal thoughts. Anxious[21]”. A referral to a psychiatrist Dr Gehan George[22] and to Ms Rosemary Qummouh were issued[23].
[21] ARD p 424.
[22] ARD p 430.
[23] ARD p 433.
Dr Ye on 23 November 2018 again prescribed Lexapro and noted Ms Tarbuk had major depression and was not getting better. Dr Ye referred Ms Tarbuk for cognitive behavioural therapy (CBT)[24].
[24] ARD p 434.
Dr Jaffrey on 19 June 2019 also prescribed Lexapro, and in 2021 Temazepam was prescribed by Dr Delos Reyes.

Dr Fadi Metti

Dr Metti is Ms Tarbuk’s general practitioner from the Cecil Hills Medical Centre. Dr Metti’s clinical entry for 17 December 2018 refers to depressive anxiety disorder but does not disclose the cause[25].“Product advised from outside this practice: Escitalopram 20mg”. The parties agree this is marketed as “Lexapro[26]”.
[25] ARD p 238 and Reply p178.
[26] ARD p 239.
On 13 March 2019 Dr Vyas records in the clinical notes that Ms Tarbuk came in distressed and tearful, stating she felt stressed and anxious. He notes she has been getting increasing pressure and workload in recent months. He noted the door/trolley incident and refers to feeling being bullied by a young new manager, who questions her all the time but never greets her. The doctor notes she has been on Escitalopram from another practice for the last few months for stress and depression due to the work issues[27].
[27] ARD p 237 and Reply p 177.
On 15 March 2019 Dr Metti provided a referral to Dr Selwyn Smith advising that Ms Tarbuk had work related abusive behaviour and worsening depressive anxiety disorder[28]. In that referral he lists the depressive anxiety disorder with a date of 17 December 2018 and that Escitalopram 20mg was prescribed. On 19 March 2019 Dr Metti provided a certificate that Ms Tarbuk was unfit to work until 22 March 2019 due to a medical condition[29] and his colleague Dr Vyas had provided a similar certificate covering the period 13 to 19 March 2019[30]. These certificates did not disclose the nature of the medical condition.
[28] ARD p 18.
[29] ARD p 20.
[30] ARD p 12 and Reply p 19.
On 21 March 2019 Dr Metti issued a WorkCover NSW- certificate of capacity[31]. He states in relation to the date of injury “Gradual over last 12 months” and in reference to how the injury is related to work he writes “conduct and bullying issues with manager”. He certified her unfit for any employment. He issued a similar certificate on 4 April 2019[32].
[31] ARD p 166 and Reply p 94.
[32] ARD p 169 and Reply p 97.
Thereafter, there are continuing entries about her psychological state.

Psychological treatment

On 29 May 2019 Dr Metti referred Ms Tarbuk for psychological treatment to Ms Kim Malone[33].
[33] ARD p 402.
On 19 June 2019 Dr Jaffrey from the Wetherill Park Medical Centre referred Ms Tarbuk to Randa Abdelsayed, psychologist, for treatment of her anxiety and depression issues[34]. The handwritten notes of Ms Abdelsayed are in the Application to Admit Late Documents filed on behalf of Ms Tarbuk.
[34] ARD p 390.
On 8 August 2019 Dr Amrin Sarwar referred Ms Tarbuk to Jeff Och, psychologist[35]. Mr Och reported to Dr Jaffrey on 14 August 2019 relating to her major depressive disorder with anxiety due to work place stressors. He noted the range of treatment given over six sessions[36].
[35] ARD p 400.
[36] ARD p 401.

Dr Selwyn Smith

Dr Selwyn Smith, psychiatrist, has provided reports dated 8 May 2019[37] and 16 October 2019[38]. The history in the first report has an incorrect date of injury, referring to 13 April 2019, however, it appears the doctor was told about the door closing/trolley incident which he says occurred on 5 March 2019 although Ms Tarbuk and other witnesses refer to this occurring on 13 March 2019. However, the facts he relates about that incident are reasonably consistent with Ms Tarbuk’s account in her statement. Dr Smith then adds “she also reported other untoward events particularly involving the need for a doctor’s note when she was off work for one day”.
[37] ARD p10 and Reply p 71.
[38] ARD p 1 and Reply p 142.
Dr Smith diagnosed that Ms Tarbuk had an adjustment disorder with mixed depressed and anxious mood in response to the untoward events experienced at her place of work. The doctor sets out his treatment recommendation.
In his second report Dr Smith confirms he has examined Ms Tarbuk on 6 May, 14 June and 13 September 2019. Dr Smith had available Ms Tarbuk’s statement and relates its contents. He sets out her ongoing psychological symptoms. He confirmed his earlier diagnosis and the cause being the work related events. He adds that her condition has been compounded by the discriminations in relation to her age as well as the excess work demands placed upon her.

Dr Robert Gertler

Dr Gertler, psychiatrist, provided a medico-legal assessment of Ms Tarbuk and his report is dated 13 December 2021[39]. He diagnosed that Ms Tarbuk is suffering from a major depressive disorder which is chronic in duration which the doctor says has developed with symptoms in 2018 and greatly aggravated by the incidents in March 2019 at work. Dr Gertler characterised that while the failure to provide a medical certificate contributed to her eventual complete emotional decompensation, it occurred on a background of ongoing harassment and bullying within her employment over a period of several years, culminating in her final decompensation and inability to continue, after the events of 13 March 2019.
[39] ARD p 12.

Dr Glen Smith

Dr Glen Smith, psychiatrist, was qualified by Myer claims and provided a report dated 17 May 2019[40]. Ms Tarbuk advised Dr Smith that in around 2017 she experienced difficulties in the workplace and incidents with Tracey [sic, Stacey[41]] and Jason are recorded. She advised when Jason left the store her difficulties ceased. Ms Tarbuk then related in March 2018 she was “moved to stock” and she says she was given more and more duties. She saw her general practitioner who prescribed Escitalopram 10mg, which she took for three months. She then took Chinese medicine for stress and anxiety, but no clear benefit. Dr Smith records the history that at this time she felt a cloud above her head which was getting worse and worse.
[40] ARD p 148 and Reply p 74.
[41] ARD p 123 [95].

Dr Smith has a history of the door closing/trolley incident in March 2019 and also about the conversation she had with Mr Grimshaw on 13 March 2019 about the lack of doctor’s certificate. Ms Tarbuk advised the doctor that she left the office feeling upset, sobbing and feeling anxious with chest pain. She saw her doctor who increased the Escitalopram to 20mg per day. She described other symptoms such as lack of energy, loss of interest, sleep disturbance and ruminations.
Dr Smith sets out details from his letter of instruction and summarises the treating reports made available to him. He made a provisional diagnosis of adjustment disorder with mixed anxiety and depressed mood. He opined that workplace events had contributed to her psychological injury. He advised his opinion that the predominant contributing factor was the manager requesting the medical certificate. However, in answer to question 11 he states, “the issues pertaining to discipline and the provision of employment benefits were the predominant factors contributing to her alleged psychological injury, incapacity for work and need for treatment”. The doctor does not, in response to this and the earlier question about causation, take into account that Ms Tarbuk had a need for treatment earlier than the medical certificate issue. The letters of instruction to Dr Glen Smith are lengthy and contained in Ms Tarbuk’s Application to Admit Late Documents.
Dr Smith provided a further report dated 6 May 2022[42] without re-examining Ms Tarbuk. He advises that before the incident about the medical certificate on 13 March 2019 Ms Tarbuk had not been incapacitated for work, therefore, he concluded that this incident was the predominant factor in the development of the adjustment disorder with mixed anxiety and depressed mood. He adds that she did not develop a major depressive disorder until she had ceased work and so the loss of work was also a predominant factor of causation. When considering Dr Gertler’s opinion Dr Smith says that the March 2019 issue was the predominant but not the whole contributing factor to her condition.
[42] AALD 10 May 2022 p 1.
Dr Smith considered the general practitioner’s records which in 2018 referred to stress at work and home. Dr Smith says this raises questions regarding the validity of the information provided by Ms Tarbuk in his assessments. However, the doctor does not consider whether this just means the stress at work caused her to feel stress when at home. The general practitioner’s entry is really too brief in my opinion to impugn Ms Tarbuk’s credit, especially since the doctor has not put this to her. Also, in the referral dated 31 March 2018 to
Ms Qummouh the doctor only refers to “stress at work” and Ms Qummouh’s notes only appear to refer to work issues. Dr Smith says he would need to re-examine Ms Tarbuk to provide a formal assessment of her WPI.

Submissions

The submissions spanned a duration of 3 hours 55 minutes and have been sound recorded, accordingly, I will not reproduce them verbatim.
Ms Tarbuk’s counsel submitted:
(a)    it is relevant that she is an employee of 25 years duration;
(b)    the causes of her psychological injury have accumulated over a period of time, not just from the events on 13 March 2019;
(c)    there is evidence in her statement and treating medical evidence to show that she was struggling with her job in 2018;
(d)    there is evidence from the respondent witnesses to support Ms Tarbuk’s evidence:
(i)Ms Pratt describes Ms Tarbuk as very conscientious and hard-working and Ms Samios described Ms Tarbuk as hard-working, determined and passionate about homewares;
(ii)Ms Pratt at [28] refers to problems experienced by Ms Tarbuk with
Ms James, at [29] with Ms Samios and at [30] regarding the issue with Mr Grimshaw;
(iii)Ms Pratt also relates at [33] she saw Ms Tarbuk was very upset, crying and inconsolable. This occurred on 5 March 2019. It was submitted this demonstrates Ms Tarbuk was having considerable emotional responses to her work before 13 March 2019. Ms Neale also confirms she found Ms Tarbuk crying and she said too many people were giving her directions;
(iv)at [41] Ms Pratt relates that she was aware Ms Tarbuk was overwhelmed by the volume of work on the dock and interaction with the dock worker;
(v)Ms Samios in her statement notes the persons who gave Ms Tarbuk instructions and at [21] Ms Samios observed that Ms Tarbuk was frustrated by this situation;
(vi)Ms Samios states at [25] she thought Ms Tarbuk put pressures on herself. Counsel submits that even if this is so, it still arises out of her employment. And acknowledges that it could be frustrating when a display which had been set up then gets changed;
(vii)the event of 13 March 2019 (when Ms Tarbuk had glassware break when moving the trolley) Ms Samios noted after that Ms Tarbuk came up and spoke loudly to Ms James. Counsel submits this is another sign of an emotional response of Ms Tarbuk, and
(viii)Ms James states that Ms Neale specifically asked her not to interact with Ms Tarbuk and counsel submits that this demonstrates problems in the workplace.
(e)    counsel submits that this evidence corroborates Ms Tarbuk’s statement, that she was having problems at work, and she was responding to that emotionally to the point she was crying inconsolably. And such matters have led Ms Tarbuk to suffer from psychological injury sustained in the course of her employment. He submits that it was not just the medical certificate event that caused the psychological injury;
(f) in relation to the section 11A defence, counsel submits one needs to view the medical certificate incident in the prism of a 25 year old employee, with extensive sick leave entitlements, and asks is it reasonable for the employer to make a point about her not having a medical certificate for one day?
(g) counsel also submits the respondent cannot discharge it onus in relation to section 11A because the test of wholly or predominantly caused cannot be satisfied because the psychological injury was not caused wholly or predominantly by the medical certificate incident;
(h)    it was submitted that the letters of instruction to Dr Glen Smith by the respondent, seek to relate everything to the medical certificate incident as Dr Smith’s attention is drawn to the interactions with Mr Grimshaw and Ms James. Counsel submits that this is not the whole picture. Counsel submitted that these letters of instruction purport to provide a summary of some of the evidence but they do not give a full picture. An example was given where Ms Samios stated she was unaware of Ms Tarbuk having issues before 13 March 2019 and it was submitted that this is clearly not accurate;
(i)    counsel submits in relation to the last report of Dr Glen Smith his attention is drawn to the fact that Ms Tarbuk and her husband gave statements on the same day, with both referencing the PIRS categories. Counsel submits that this is an attempt by the respondent to portray a jaundiced view to Dr Glen Smith. It was submitted that Dr Glen Smith has not given his opinion with a fair appreciation of all of the evidence, as the respondent has pointed him to the medical certificate issue;
(j)    Ms Tarbuk’s counsel submits that Dr Glen Smith does not seem to appreciate the correct legal test, because the test is not the “triggering cause” or the “cause that broke the camel’s back”. The week prior to the medical certificate event,
Ms Tarbuk was crying at work inconsolably and that fact and the earlier events mean that the events on 13 March 2019 cannot be the whole or predominant cause of the psychological injury. Counsel submits Dr Selwyn Smith and
Dr Gertler support this submission, and
(k)    it was also submitted that the general practitioner’s Patient Assessment- Mental Health dated 19 June 2019 has adjacent to the heading “the history of current episode” “happening since more than a year now seeing psychologist for more than a year now”[43]. It is submitted this is consistent with Dr Metti’s records of 2018.
[43] ARD p 393.
The respondent’s counsel submitted that Ms Tarbuk’s submissions asks the Commission to accept her evidence as a credible witness. Yet he submits other witnesses give conflicting accounts. The respondent also submitted that Ms Tarbuk herself has given about eight versions of events as follows:
(a)    counsel submitted Dr Vyas’ entry on 13 March 2019 has Ms Tarbuk identifying the triggering event as Ms James closing the stock room door in her face[44]. However, the entry refers to other matters such as “has been getting increasing pressure and workload in recent months”, feels she has been bullied and harassed by new manager, who questions her all the time but never greets her. Furthermore, while counsel read out this entry he did not include these aspects in his submission and he did not read out the last sentence “Says has been on escitalopram from another Practice for the last few months for Stress and Depression due to the work issues”. Escitalopram is Lexapro and that was prescribed for Ms Tarbuk by the doctors at the Wetherill Park Medical Centre in March and November 2018 and Dr Metti also prescribed it on 17 December 2018;
(b)    the Initial Contact Form refers to her feeling extremely upset follow her interaction with Mr Grimshaw on 13 March 2019, experiencing tight chest and shortness of breath. She felt she had been unfairly and disrespected by the way Mr Grimshaw spoke to her relating to the medical certificate. Counsel submitted there is no mention about Ms James closing the door in her face. Counsel submitted this was her chance to tell Myer why she was upset. However, the document includes a statement “worker reported that there has been a build-up of events which has led to her breakdown[45]”. Ms Tarbuk does mention other matters such as she was not coping with her workload, Ms James ignores her, she filled a display with glassware and when she returned from her break Ms James had removed it and gave her no feedback. Ms Tarbuk also mentions breaking down the week before with her line manager Lisa telling her she could not cope and she felt bullied and picked on the past few weeks;
(c)    the report of injury form asks: “what tasks were you doing when you were injured?” and she replied “taking out stock from reserve”[46]. Counsel submits you would draw from this version of events that the issue that caused her injury was dealings with Ms James on 13 March 2019 and no reference to the medical certificate incident;
(d)    counsel submits the fourth version of events is the history in Dr Selwyn Smith’s report 8 May 2019[47]. This refers to a manager slamming a door in her face resulting in the glasses from a trolley falling to the ground and smashing. Counsel says this suggests that the time interval between the door closing and the breakage was close in time, whereas Ms Samios says it was five minutes later. Dr Smith also notes the certificate issue;
(e)    on 16 May 2019 Ms Tarbuk gives another version to Dr Glen Smith. In the background section of the report details are given about issues in 2017 and 2018, but counsel draws attention to the fact that Ms Tarbuk had not taken time off work in relation to these incidents[48]. Counsel also referred to the details under “history of the injury” which referred to the storage room/trolley incident and medical certificate incident. He submitted that Ms Tarbuk had an opportunity to mention other matters that led to her ceasing work, but she does not;
(f)    counsel referred to a document headed Milica Tarbuk chronology, which is undated and not signed[49]. He drew attention to the description of Ms Tarbuk making a display of mugs, going on her tea break and on return finding they had been removed because Ms James did not like the display. He also noted the passage about 6 March 2019 when Ms Tarbuk was crying due to anxiety and feeling constantly criticized by Ms James and after this the criticism and disrespect from Ms James got worse from Ms James. Counsel read out the account of Ms Tarbuk being ill on 8 March 2019 and the details about being required to provide the medical certificate. He also read out the passage about the stockroom incident and noted Ms Tarbuk stated that after Ms James shut the door in her face while she was trying to wheel the trolley, she started to feel extremely anxious and started shaking and it was so severe that some of the stock fell off the trolley and glasses broke inside the boxes, and
(g)    counsel submitted the version given to Dr Gertler identifies the medical certificate and stockroom incidents on 13 March 2019 caused her extreme distress and to leave work.
[44] ARD p 237.
[45] ARD p 86.
[46] ARD p 90.
[47] ARD p 10.
[48] ARD p 150.
[49] Late documents 10 May 2022 p 78.
Counsel submitted that the small differences make a difference such as Ms Tarbuk attributing the glasses falling due to her shaking so much after Ms James closed the stockroom door in her face. He says this is in direct contrast to what she says in her statement at [143][50]. In that account Ms Tarbuk says the door hit the trolley and caused the glassware to fall and break. Counsel submits that this conflict brings into account her veracity coupled with the fact that she admits lying about having a medical certificate. Counsel also noted there is a discrepancy about how Ms Tarbuk cut her foot on Christmas Eve 2016. He drew attention to [70] of her statement where she describes it happening at work whereas
[50] ARD p 40.
[51] Late documents 10 May 2022 p 95.
Dr Jee records on 29 December 2016 that Ms Tarbuk broke a glass bottle at home and stepped on a piece of glass[51] and the Liverpool Hospital record show on 26 December 2016 she attended and gave a history she stepped onto glass five days ago. Counsel says this is another example reflecting poorly on her veracity.
It is submitted that the Commission should not accept her version of events unless it is independently corroborated.
Counsel referred to Mr Tarbuk’s statement at [11] to [14]. It was submitted that only incident she identified related to the medical certificate, and one would have expected Ms Tarbuk to have confided in her husband about other matters if they were causative of psychological injury. However, her husband does refer to her coming home from work in March 2018 absolutely exhausted and he describes the symptoms he observed in her. Mr Tarbuk’s statement is comparatively brief, and he does not purport to give an exhaustive list of the work stressors. Even though he only refers to the medical certificate incident, he concludes by adding at [14] that he felt prior to this incident her presentation had already changed dramatically and she appeared to be already very depressed and anxious. Therefore, I do not accept the respondent’s submissions about Mr Tarbuk’s statement.
It was also submitted the evidence of the respondent’s witnesses does not corroborate important aspects of various incidents. Counsel read extracts from the lost time report and submits there is a direct temporal relationship with the medical certificate incident on 13 March 2019 and the cessation of her employment, and she did not tell Mr Karagiannis of any other events even though she saw him on leaving the store. However, I do not accept this aspect of the submission. Ms Tarbuk at the time was visibly upset and told Mr Karagiannis she felt like she would have a heart attack. In such circumstances, I cannot draw any conclusions about her not stopping to discuss other causes of her distress. She did not even tell Mr Karagiannis about the conversation with Mr Grimshaw and others about the lack of the medical certificate.
Counsel referred to the near miss report which he says only refers to interactions with management, but he acknowledges it is not her document and is only a brief report.
In relation to Ms James’ statement, reference is made to the re-arrangement of the display undertaken by Ms Tarbuk without giving her an explanation. It is submitted that Ms Tarbuk’s perception of that event was not reasonable and could not reasonably be held. However, in Attorney General v K, Roche DP summarised the legal principles and stated:
“(e) there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f) it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.” (at [52])”
I find this event was a real event as it was described by Ms Tarbuk, Ms James and
Ms Samios as having occurred, and just because Ms Tarbuk has a different perception about it, and others may think her perception is not rational, is not the causal test.
Counsel referred to Ms James relating that she closed the stockroom door, which Ms Tarbuk had propped open. He said this was store policy to prevent theft. So he submitted that it was reasonable for Ms James to close the door. He noted that Ms James says she did not speak to Ms Tarbuk because Ms Neale had asked her not to. However, these aspects cannot be part of the concept of “discipline” in section 11A for reasons which will be discussed later in these reasons. Counsel later submitted that Ms James’ subsequent statement is a wholesale rejection by Ms James of Ms Tarbuk’s allegations.
Reference was made to Ms Samios’ statement and the fact that she has experienced displays being changed and it was submitted this demonstrates it was a normal part of the respondent’s business. Again, how this event comes within the aspect of “discipline” in section 11A is not evident.
Counsel refers to Ms Samios and other witnesses refuting Ms Tarbuk’s reference to some people in Myer having a discriminatory approach to age. He submits this demonstrates that not all of Ms Tarbuk’s complaints are based in fact. It was submitted that Ms Tarbuk has also included assertions about swipe cards are also disputed by various witnesses. There is a real dispute as to whether such events occurred, however, the events listed earlier in these reasons at [23] did occur.
It was submitted that Mr Grimshaw acted reasonably by asking Ms Tarbuk to speak to him about the absence of the medical certificate, especially in the context of Ms Tarbuk had acknowledged to Ms Neale that she lied about it. It was submitted that the question of what is reasonable is to be judged objectively and so even if Ms Tarbuk feared she would be fired is not relevant. It was submitted that Mr Grimshaw denied Ms Tarbuk’s account that he stated three times that she did not follow directions. It was submitted that the Commission should prefer Mr Grimshaw’s version of their discussion over that of Ms Tarbuk, given the matters submitted previously in relation to her credit.
Counsel submitted that there is clear evidence that Myer had a policy that if a worker took a Friday or Monday off work, they had to provide a medical certificate. It was argued that the requests made to Ms Tarbuk to provide a medical certificate for Friday 8 March 2019 were reasonable in this context.
Mr Karagianis’s and Ms Neale’s statements were discussed by the respondent’s counsel wherein they confirmed it was policy for the stockroom doors to be closed and the policy about the medical certificate and they refute the assertion by Ms Tarbuk about Myer having an ageist approach.
It was noted that Ms Neale stated she was unaware of Ms Tarbuk having issues at work until 5 March 2019 when she was upset reporting to different people. Counsel says this is significant because Ms Neale worked with her every day, and one would have expected
Ms Neale to have observed if Ms Tarbuk was struggling with her work. It was submitted that Ms Tarbuk identified to Ms Neale in the days after she left work, she was not happy about the exchanges with Ms James and Mr Grimshaw on 13 March 2019. Counsel submitted that Ms Tarbuk did not refer to any other causes of her psychological injury. It was submitted that the rest of the Kronos or M-Metrics notes do not support that Ms Tarbuk complained to any manager about other events at work. Counsel described the other complaints in Ms Tarbuk’s statement were a “figment of her imagination” to help her in this case.

The respondent submitted that when Ms Tarbuk told Ms Pratt that Ms James “annoyed her” and this is not consistent with Ms Tarbuk’s complaints about being upset about bullying. Also, he submitted that there is no evidence she was caused anxiety and stress by her managers until the episode on 5 March 2019.
It was submitted that this event did not prompt Ms Tarbuk going to seeing her general practitioner and it was until 13 March 2019 after the medical certificate event that she sought treatment. It was also submitted that Ms Pratt spoke to Ms Tarbuk after she left work but there is no evidence that Ms Tarbuk told Ms Pratt or anyone else about the issues she seeks to rely on beyond the stock room and medical certificate issues.
In relation to Dr Glenn Smith the respondent’s counsel argued that Ms Tarbuk’s submission that the doctor had been led to his view by the letter of instruction should not be accepted. It was submitted at this point in time Ms Tarbuk had not provided a statement and so the solicitors had to put together for the doctor details about what had transpired at work pieced from various sources. Furthermore, the respondent’s counsel submitted that there is no inconsistency in Dr Glenn Smith’s reports.
It was submitted while Dr Glenn Smith had a history about prior events, Ms Tarbuk advised him that she suffered significant anxiety levels after the events on 13 March 2019. It was submitted that nothing shakes Dr Smith from his original view that this was the predominant cause of her psychological injury.
Finally, the respondent’s counsel dealt with the medical evidence in 2018 from the Wetherill Park Medical Centre and Dr Lawal referred to “stress at work and home”. It was submitted there is no response to the referral to Dr Gehan George by the general practitioner and argued there is no information about the nature of the stress. It was also argued that
Dr Metti’s records do not disclose the nature of any work place stress.
For these reasons, the respondent submitted that the Commission should find that the medical certificate event was the predominant cause of her psychological injury. Her focus was on her dealings with Mr Grimshaw, it caused her great upset and caused to leave work. It was submitted that the closing of the stockroom door incident was remote in time to the reason she left work on 13 March 2019 and in any event, Ms James closing the door was reasonable. It was submitted that the temporal connection with Mr Grimshaw asking her to meet to discuss the medical certificate and the reasons for her cessation of work is strong.
Heggie was relied upon at [59] about an objective standard of reasonableness and the need to have a broad standard of the concept of discipline. Counsel submitted the medical certificate was an event in relation to employment benefits, as to enable Ms Tarbuk to access sick leave comes within “employment benefits”, and it was also part of “discipline” to ask
Ms Tarbuk to come to Mr Grimshaw’s office to speak about lying about having a medical certificate.
In reply, Mr Dodd argued the fact that Ms James may have acted reasonably closing the stock room door is not relevant because that incident is not part of “discipline” or “an employment benefit” and this incident happened on the same day as the medical certificate. It was argued that it is a fallacy to relate the predominant cause to when she went off work or when she sought treatment because the legislation refers to whether the psychological injury was predominantly caused by actions by the employer about discipline or employment benefits, not the cause of the cessation of work. It was argued that the respondent does not include the incident on 5 March 2019, just a week before, when Ms Tarbuk was found to be inconsolable at work from having too many people to report to. And this incident does not fall within section 11A. Mr Dodd submits to just pick the medical certificate incident as the predominant cause is not logical when there are three events close in time.
It was also submitted in reply that Ms Tarbuk already had a psychological injury before 13 March 2019 and the events on that day may have pushed her over the edge but those earlier events in 2018 were part of the psychological injury.
Also, Ms Tarbuk’s perception is what is relevant even though others’ perceptions may be different, and he gives an example in relation to the display being changed.
It was also submitted that the respondent’s submissions about different version of events cannot be given weight because it does not follow that on every occasion a worker would give a comprehensive account of all the events causing her injury.
Attention was drawn to the fact that the Kronos/ M-Metrics notes at page 656 of the reply do not include an entry for the 5 March 2019, and it is submitted this demonstrates that the notes are not necessarily a comprehensive account by her managers and the respondent’s submission that weight should be given to the absence of record of complaint by Ms Tarbuk is flawed.
Mr Dodd conceded whether Mr Grimshaw acted reasonably was not his strong point. But he submits that it cannot be found the certificate event wholly or predominantly caused the psychological injury. He relies on the stockroom event the same day, which is outside section 11A and the incident on 5 March 2019.
In relation to Dr Smith Mr Dodd relies upon his submission as there was a letter of instruction sent before his first examination of Ms Tarbuk and the letter says the causative effect of the claim was the medical certificate event on 13 March 2019 and the stockroom event. And that other events concerning which he has made submissions about are not considered by
Dr Glenn Smith.

Determination

As quoted earlier, Snell DP in Hamad refers the proposition that a series of events may be causative of a psychiatric condition, which does not manifest until some time later. Obviously each case turns on its own particular facts, but I have been persuaded by Mr Dodd’s submissions that this is what has occurred in Ms Tarbuk’s case. I find it is highly relevant that Ms Tarbuk was prescribed Lexapro on 31 March 2018 and at that time Dr Lawal found she had low mood, poor sleep, depressed mood and was anxious. He recorded “stress at work and home”. The fact that he includes “home” in this entry, I find, does not detract from
Ms Tarbuk being stressed at work, and this is borne out by the fact that in the referrals to
[52] ARD p 430.
[53] ARD p 433.
Dr George[52] and Ms Qummouh[53] Dr Lawal refers to “stress at work” and there is no mention of other outside causes of stress.
In addition, I note that the first WorkCover certificate issued by Dr Metti on 21 March 2019 in relation to the date of injury states “Gradual over last 12 months”. This provides support for the conclusion that Dr Metti does not attribute the injury to just events on 13 March 2019. Also, Dr Ye at Wetherill Park Medical Centre prescribed Lexapro again on 23 November 2018 and said Ms Tarbuk was not getting better and had major depression and Dr Metti on 17 December 2018 refers to depressive anxiety and he notes “Product advised from outside this practice: Escitalopram 20mg”. The parties agree this medication is marketed as Lexapro[54]. It is apparent from this entry that Ms Tarbuk advised Dr Metti of her treatment from Drs Lawal and Ye at the Wetherill Park Medical Centre, prescribing this medication.
[54] ARD p 239.
Furthermore, for the respondent to succeed in relation to a section 11A defence the events which caused the psychological injury need to be actions by the employer in relation to one of prescribed criteria in section 11A, in this case “discipline” and “provision of employment benefits”. There is a significant issue as to whether the events that have caused the psychological injury in Ms Tarbuk’s case are confined to such criteria. For instance, the respondent has not established that the stress at work in 2018 was in relation to discipline or employment benefits, and they have the onus of proof.
There is no evidence that any disciplinary action had been taken in relation to Ms Tarbuk. While she might have disobeyed Myer policy by keeping the stockroom door open,
Ms James did not speak to Ms Tarbuk, she just closed the door. When Ms Tarbuk later spoke to her, Ms James did not discipline her.
The respondent at times did not rely on this incident as being causative of the psychological injury and focused on the circumstances to do with the medical certificate issue. However, it is clear that the stockroom incident occurred only hours before Ms Tarbuk’s interaction with Mr Grimshaw about the certificate. While Ms Tarbuk’s version of exactly how and where the glasses fell off the trolley has been contradicted by Ms James and Ms Samios, it is clear that the door was closed without Ms James speaking to Ms Tarbuk. There also is a factual dispute as to how far away Ms Tarbuk was when the door was closed. Even if Ms Tarbuk was further back in the stockroom, as Ms James alleges, she did not speak to Ms Tarbuk and this incident was mentioned to Dr Vyas. This event, I find, is an example of the deterioration in the interpersonal relationship between Ms Tarbuk and Ms James and does not fall within the criteria in section 11A.
Another example of the deterioration in their relationship is after the event on 5 March 2019 (when Ms Tarbuk was witnessed by three staff to be crying inconsolably) was the fact that Ms Neale asked Ms James to go through her to give direction to Ms Tarbuk. Ms James says this is why she did not speak to Ms Tarbuk when closing the stockroom door, but Ms Neale did not say she was not to speak to her at all. It is not a question of finding fault by Ms James or Ms Tarbuk in relation to the events at work, simply there is ample evidence of interpersonal conflict. The removal by Ms James of the mug display that Ms Tarbuk had just completed, when Ms Tarbuk was at lunch and not telling her later why that was done, also caused Ms Tarbuk to have feelings of emotional distress. Clearly displays were re-arranged often and that is part of the business, but the timing of this led Ms Tarbuk to have a perception that she was not valued.
Mr Dodd submitted that it was relevant that Ms Tarbuk had worked for Myer for about 25 years. Ms Samios and Ms Pratt have given evidence of her passion for her work and the pride she took in her work and her determination. It may well be she placed too high standards on herself but as cited above in Attorney General v K there is an egg shell skull principle and events that occurred in the workplace which are perceived as creating a hostile working environment and a psychological injury followed can form the basis of a finding of causation. I find these elements are present in Ms Tarbuk’s case.
In addition to these events is the fact that Ms Tarbuk felt she had to empty many of the stock cages and Cisco on the dock told her to work faster. Ms Tarbuk told Ms Pratt about this. Even though the respondent witnesses attest to the fact that they had no such expectation, it does not mean that Ms Tarbuk did not have a perception she had to cope with the workload and in this context, it is evident that she was complaining about multiple directions and the effect it was having on her. For Ms Tarbuk, a hard worker, to break down in tears and be inconsolable on 5 March 2019 I find is highly relevant. The respondent’s counsel seeks to discount this as it did not cause her to leave work. However, I find it is clearly a part of the mix of events which demonstrate she was not coping and was exhibiting psychological symptoms at work before 13 March 2019.
In terms of the medical certificate issue. It is accepted by all that Myer required a worker who was sick on a Friday or Monday to submit a medical certificate. Ms Tarbuk admits she lied about having a certificate. Mr Grimshaw had requested to speak with her. This could be viewed as a management step prior to any disciplinary process. If so it would not come within section 11A. I was not addressed in detail about cases as to what constitutes discipline. Heggie suggests a broad view should be taken and investigation can be part of a discipline process. As the respondent’s counsel submitted the certificate incident could be seen as part of the “provision of employment benefits” in relation to the provision of sick leave for which the certificate was sought. Whether it falls within discipline and/or provision of employment benefits, it was reasonable for Mr Grimshaw to ask to speak to her. However, in any event, I am not persuaded, and I find, that the medical certificate issue was not the whole or predominant cause of the psychological injury.
For the reasons submitted by Mr Dodd and outlined by me above, I find there were multiple factors giving rise to the development of her psychological injury stemming back well before the interaction with Mr Grimshaw on 13 March 2019. I do not accept the respondent’s submission that because Ms Tarbuk did not mention in every history all the factors identified in her statement that they were not causative or that Ms Tarbuk’s credit should be impugned. There is ample evidence of these other events from the various witnesses and her perception of them. Dr Gertler opined that Ms Tarbuk is suffering from a major depressive disorder which is chronic in duration with symptoms in 2018 and greatly aggravated by the incidents in March 2019. He said the medical certificate incident was on the background of what he has termed ongoing harassment and bullying. The terms harassment and bullying are unhelpful descriptors. Mr Dodd has submitted that Ms Tarbuk’s perception of workplace events before 13 March 2019 did cause her psychological injury to develop and I accept his submissions in that regard for the reasons explained above.
The respondent has the onus of proof and I find it has not discharged the same as
Dr Glenn Smith, while he refers to earlier incidents, he focuses on the reasons why Ms Tarbuk left work on 13 March 2019. As stated in Hamad in some cases there is one cause of a psychological injury, yet in other cases it is a series of incidents with injury manifesting later. As further discussed in Hamad, there needs to be consideration of all of the causative factors and I find that Dr Glen Smith has not sufficiently considered the matters such as the breakdown by Ms Tarbuk on 5 March 2019 against the background of her treatment in 2018 and the growing interpersonal conflict with Ms James, her feelings of inability to cope with the workload and difficulty being the recipient of directions from multiple persons. For these reasons, I prefer the opinion of Dr Gertler to that of Dr Glenn Smith.
I consider it is simplistic to just conclude that the event immediately preceding her leaving work was the predominant cause of the psychological injury. It certainly could not be regarded as the whole cause, and I find it cannot be the predominant cause in the situation where there have been a series events over time have led to a psychological injury that as Dr Gertler opines is chronic in duration with symptoms from 2018.
Accordingly, I find the respondent has not established a defence under section 11A of the 1987 Act and Ms Tarbuk’s claim for lump sum compensation is to be referred to a Medical Assessor for the assessment of permanent impairment.

[2022] NSWPIC 349

30 June 2022