Tarif v Anglican Retirement Villages Diocese of Sydney
[2014] NSWWCCPD 61
•24 September 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Tarif v Anglican Retirement Villages Diocese of Sydney [2014] NSWWCCPD 61 | ||
| APPELLANT: | Kazi Tarif | ||
| RESPONDENT: | Anglican Retirement Villages Diocese of Sydney | ||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-14603/12 | ||
| ARBITRATOR: | Mr B Batchelor | ||
| DATE OF ARBITRATOR’S DECISION: | 16 June 2014 | ||
| DATE OF APPEAL DECISION: | 24 September 2014 | ||
| SUBJECT MATTER OF DECISION: | Psychological injury; challenge to factual findings; evaluation of conflicting evidence; application of the principles in Northern NSW Local Health Network v Heggie [2013] NSWCA 255; reasonable conduct with respect to discipline; s 11A of the Workers Compensation Act 1987 | ||
| PRESIDENTIAL MEMBER: | President Judge Keating | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Shine Lawyers | |
| Respondent: | Holman Webb Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. The name of the respondent in the Application to Resolve a Dispute and the Application –Appeal Against Decision of Arbitrator, lodged in the Commission on 16 November 2012 and 11 July 2014 respectively, is amended by consent to “Anglican Retirement Villages Diocese of Sydney”. 2. The Arbitrator’s determination of 16 June 2014 is confirmed. 3. No order as to costs. | ||
INTRODUCTION
The worker alleges that he suffered psychological injuries because of workplace bullying, discrimination and harassment from his supervisors. The Arbitrator found that the worker failed to discharge the onus of proving that he suffered a psychological injury arising out of or in the course of his employment with the respondent employer. The worker challenges the Arbitrator’s findings.
BACKGROUND
The worker, Kazi Tarif, was employed by Anglican Retirement Villages, the respondent, as a registered nurse between January 2009 and October 2012.
Mr Tarif alleges that as a result of the nature and conditions of his employment between February 2009 and October 2012, he sustained psychological injuries. He claims that he was “subject to ongoing workplace bullying, discrimination and harassment from his supervisors”.
Mr Tarif submitted a “Workers Injury Claim Form” (undated), attaching a letter dated 9 October 2012. He described the incident therein as follows:
“Manager and clinical leader harasing [sic] me by giving me letter and phone call and threatening me not to approve leave. And also putting me on pressure by more workload and creating stressful environment.”
On 23 October 2012, the respondent, through its workers compensation insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz), issued a notice pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It denied liability for the following reason:
“Your injury is wholly or predominantly due to reasonable action taken or proposed to be taken by your employer with respect to discipline: section 11A(1) of the Workers Compensation Act 1987” (emphasis included in original)
On 16 November 2012, Mr Tarif lodged an Application to Resolve a Dispute (the Application) in the Commission. He sought an order for weekly compensation from 8 October 2012 to date and continuing and an order for medical expenses in the sum of “$7,501 and ongoing”. In addition, Mr Tarif sought compensation pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act).
The alleged injury was pleaded as stress, anxiety and depression. Mr Tarif pleaded that the injury was due to being subjected to:
“- repeated verbal abuse and threat
- rude and threatening behaviour over the phone on any issue
- unreasonable and excessive work load causing stress
- micromanagement (unreasonably making small issues big as a way to cause more undue pressure on staff)
- discrimination and double standards as a result of favouring staff
- ongoing threatening and unsupportive working environment
- racial comments from management”
On 11 December 2012, the respondent filed a Reply to the Application. It confirmed that the issues in dispute were those stated in the s 74 notice dated 23 October 2012.
On 6 September 2013, Allianz issued an amended notice pursuant to s 74 of the 1998 Act declining liability in the following terms:
“You have not sustained a workplace injury for which compensation is payable under the workers compensation legislation: Section 4 and/or 9A of the Workers Compensation Act 1987 (the 1987 Act); You have not sustained a psychological injury within the meaning of Section 11A of the 1987 Act.
…
Alternatively, your injury is wholly or predominantly due to reasonable action taken or proposed to be taken by your employer with respect to discipline: section 11A(1) of the Workers Compensation Act 1987…” (emphasis included in original)
On 17 December 2013, Allianz issued a further notice pursuant to s 74 of the 1998 Act declining liability for compensation pursuant to s 66 of the 1987 Act. Amongst other things, it relied upon the previous s 74 notices.
Three conciliation/arbitration hearings were listed before a Commission Arbitrator, on 9 September 2013, 28 April 2014 and 15 May 2014 respectively. After hearing submissions by the parties, the Arbitrator reserved his decision.
On 16 June 2014, the Arbitrator issued a Certificate of Determination and a Statement of Reasons (Reasons). The Arbitrator found that Mr Tarif did not suffer a psychological injury arising out of or in the course of his employment with the respondent. In the alternative, the Arbitrator found that if Mr Tarif suffered a psychological injury it was a result of receiving a letter from the respondent, dated 3 September 2012, requesting that he attend a meeting to address work-related concerns. The Arbitrator found that such action was reasonable with respect to performance appraisal or discipline (s 11A of the 1987 Act).
PRELIMINARY MATTERS
The respondent was wrongly sued as “Anglican Retirement Villages”. The correct description of the respondent is “Anglican Retirement Villages Diocese of Sydney”. The respondent has applied to amend the pleadings accordingly. The appellant consents to the application. Accordingly, I order that the name of the respondent in the Application to Resolve a Dispute and the Application – Appeal Against Decision of Arbitrator, lodged in the Commission on 16 November 2012 and 11 July 2014, is amended to “Anglican Retirement Villages Diocese of Sydney”.
There is no dispute that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
ON THE PAPERS
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.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The Certificate of Determination, dated 16 June 2014, records the Arbitrator’s orders in the following terms:
“The Commission determines:
1. The applicant did not suffer psychological injury arising out of or in the course of his employment with the respondent.
2. Award for the respondent.
3. For the purpose of costs the matter is certified as complex and the respondent is entitled to 30 per cent costs uplift.”
THE EVIDENCE
The worker, Mr Tarif, was raised in Bangladesh. In 2002, he graduated from the University of Dhaka with a medicine degree. He completed his internship and residency before he came to Australia.
On 11 November 2004, Mr Tarif entered Australia as an international student studying a master’s degree in sexually transmitted diseases and HIV at the University of Sydney.
In 2006, Mr Tarif commenced studying a bachelor of nursing degree. That course was completed in 2008. He later applied for residency in Australia.
In January 2009, Mr Tarif commenced employment with the respondent.
In August 2010, Mr Tarif complained, to the respondent’s then regional manager, about his work arrangement. He alleged that he was only offered casual shifts despite being a permanent part-time employee of the respondent. Following that complaint Mr Tarif worked his contracted hours between two different facilities operated by the respondent, Winston Lodge Nursing Home (Winston Lodge) and Donald Coburn Centre.
In a statement dated 5 September 2013, Mr Tarif states that he had no problems at work until Ms Renata Zdziebko, facility manager, and Ms Belinda Arora, clinical leader, commenced work for the respondent in late 2011 and early 2012 respectively.
In mid-2011, Mr Tarif applied for parental leave, as his son was then due to be born on 14 January 2012. Mr Tarif states that his son was born early and that he had to take his leave earlier than what he had originally applied for. As a result, Mr Tarif states that Ms Zdziebko was so angry about the leave that she threatened to take away all of his shifts and force him to work on weekdays instead of weekends.
On 17 June 2011, Amanda Rajaratnam, services and administration coordinator, wrote to Mr Tarif, advising him that he was required to attend a disciplinary meeting on 22 June 2011 regarding his consistent and excessive leave. Mr Tarif’s 13 days of sick leave and six days absent without reasons since 6 June 2010 were considered by the respondent to be excessive. In that letter, Mr Tarif was advised of the following:
“disciplinary action is a possible outcome of the meeting. You will be given the opportunity to respond to the matter in detail during the interview, and the outcome will depend on the responses given at the interview and consideration of any other relevant information.”
Following receipt of that letter, on 22 June 2011 Mr Tarif lodged a complaint with the Anti-Discrimination Board of New South Wales alleging discrimination concerning his carer’s responsibilities. On 12 July 2011, a conciliation meeting was held to discuss the complaint.
On 15 July 2011, the respondent wrote to Mr Tarif apologising to the extent that Mr Tarif had perceived discrimination in relation to carer responsibilities. It noted that it was not aware of Mr Tarif’s personal circumstances and the difficulties faced at home which had impacted upon his ability to attend work.
On 22 July 2011, the anti-discrimination complaint was settled by agreement. The respondent did not admit to any unlawful discrimination and it was agreed that neither party will make disparaging comments about the other party.
On 12 January 2012, Ms Zdziebko allegedly rang and threatened Mr Tarif that she would not approve his paternity leave request and that he may lose his job. Mr Tarif claims that human resources resolved the issue but no one addressed the issue of phone threats and abuse.
On 12 January 2012, Ms Zdziebko sent an email to Mr Andrew Burton, the respondent’s regional human resources manager, advising that she had “complaints from families and staff that [Mr Tarif] is not doing his job on the weekend and [that she is] currently waiting for written statements after receiving verbal feedback last week passed to [Ms Arora]”.
On 13 January 2012, Mr Burton sent Mr Tarif an email confirming approval of one week’s paid paternity leave and requesting that Mr Tarif complete a separate leave application form for the week of 9 January to 15 January 2012 and an application for flexible working arrangements for 19 January to 29 June 2012 (Mr Tarif wanted to reduce his hours of work on Thursdays).
On 7 February 2012, a patient had a fall at one of the respondent’s premises. Mr Tarif states that it was Ms Arora’s responsibility to report the patient’s fall and complete the incident form. Mr Tarif denies not completing and following up the incident forms as per the respondent’s policy. He claims that he completed all the “parts” that he was supposed to complete. As for other incidents involving other patients Mr Tarif claims that he followed the respondent’s protocol.
In an email from Ms Arora to Ms Zdziebko, dated 30 August 2012, Ms Arora states that she spoke to Mr Tarif “about his lack of documentation and not being able to triaging [sic] the work and completing the incident form properly. He said he knows he did not complete the incident form properly and missed the crucial information…he promised to improve…”.
In a further email from Ms Arora to Ms Zdziebko, dated 31 August 2012, Ms Arora states:
“[Mr Tarif’s] performance – this last incident is 3rd incident that is not investigated properly, First was Mr [patient name redacted], Second was MRs [sic] [patient name redacted], both succumbed to their injuries die [sic] later on. Now Mrs [patient name redacted] incident not well investigated and is not followed up as a good clinician.
If we continue to overlook his performance now, he has not been given a chance to improve, Why not we should [sic] call him for a meeting and find out what is happening…”
Mr Tarif conceded that he wrote in the medical notes, only on one occasion, as the nurses’ notes were not available. However, he denied not “supervising the team leader’s work and ensuring that all necessary documentation [was] completed before the end of the shift”. He stated that if anything was missed it would “only be because of the excessive and unreasonable workload that [Ms Arora] and [Ms Zdziebko had] given to us” or because it was someone else’s responsibility.
Mr Tarif alleges that as soon as Ms Arora started her role as clinical leader she delegated her tasks to registered nurses and was increasing their workload. She started the “spill kits check list”, the “emergency box check and oxygen cylinder checks and emergency drugs check” which were previously completed by the former clinical leader.
On 7 March 2012, Ms Arora sent an email advising staff that schedule 8 “medications are to be checked every shift until further notice. I have noticed that weekend RN’s [sic, registered nurses] are not attending S 8 checks every shift. This is a formal advise [sic] to continue checking S 8 medications every shift”. Mr Tarif alleges that Ms Arora:
“forcefully put more pressure/workload by frequent checking schedule 8 drugs (drugs of addiction kept in locked cupboard) in every shift that is 3 times a day whereas by law only once a week is sufficient, but we proposed to check once every day but she refused and forced us to check in every shift.”
On 2 April 2012, Ms Zdziebko rang Mr Tarif and instructed him not to replace weekend staff if rostered staff called in sick. Ms Zdziebko threatened she would deduct money from his salary if he did so.
On 20 April 2012, Ms Arora sent Mr Tarif an email regarding monthly and weekly weight monitoring charts and performance review forms for Mr Tarif and his staff to complete by the end of May 2012.
Mr Tarif was granted annual leave for July and September 2012. While on leave, Mr Tarif decided that he wanted to come back early to save some of his annual leave but states “[Ms Zdziebko] rang me and falsely accused for not doing my job and also poor attendance. She did not approve my early come back and forced me to stay in A/L, whereas on paper she showed that she approved my request and amended the decision”.
On 3 September 2012, Ms Arora, sent Mr Tarif a notice to attend a fact finding meeting, scheduled for 12 September 2012. Therein it was stated:
“At this meeting with me, Facility Manager (Renata Zdziebko) and HR Manager (Juliet Buckley), I will be seeking your response to the following concerns:
1. Not completing and following up the incident forms as per ARV policy e.g. Late Mr. [patient name redacted], late Mrs. [patient name redacted] and Mrs. [patient name redacted].
2. Not supervising the team leaders’ work and ensuring all necessary documentation is completed before the shift. E.g. BP and weight monitoring.
3. Poor work attendance
4. Asking team leaders to attend dressings
5. Writing nursing progress notes in medical progress notes.
…
You are able to have a support person with you…”
On 11 September 2012, Mr Tarif replied to Ms Arora and Ms Zdziebko advising that he could not attend the meeting as he was on annual leave. The fact finding meeting never took place.
Mr Tarif states that all the above incidents caused him “stress and anxiety”.
On 8 October 2012, Mr Tarif completed his last day of work with the respondent. He has not worked since that date.
Also on 8 October 2012, Dr Neyamul Bashir, general practitioner, issued a WorkCover Medical Certificate certifying Mr Tarif unfit for work from 8 October 2012 to 12 November 2012 due to “work related stress and anxiety”. He diagnosed Mr Tarif with “work related stress, anxiety and depression”. As to how the injury occurred the following was recorded: “repeated verbal abuse, excessive work load”.
On 15 October 2012, Mr Tarif attended on Dr Bashir. In his clinical notes, Dr Bashir recorded:
“work related stress and depression
verbal abuse
making him do excessive work with out any extra payment
send several complain [sic] to authority – now being considered
unaable [sic] to sleep
can not relaxcontinue counselling…”
On 12 November 2012, Dr Bashir issued a further WorkCover Medical Certificate, in similar terms to the one dated 8 October 2012, certifying Mr Tarif unfit to work from 12 November 2012 until 14 January 2013.
On 29 January 2013, Mr Tarif attended on Dr Robert Hampshire, consultant psychiatrist, at the request of Shine Lawyers. Dr Hampshire recorded a history that “things went very well [at the respondent] for three years but around the end of 2011 a new management team arrived and within the next year [Mr Tarif] – and to the best of his knowledge – all the other six or seven Registered Nurses were managed out”. He reported that the “list of complaints of his nursing style seemed endless and entirely trivial and are in themselves of no significant meaning and content of this report”. Dr Hampshire further recorded that “the new management increased [Mr Tarif’s] workload to such an extent that he no longer took tea breaks or lunch breaks, that he was micromanaged and relentlessly criticised”.
Dr Hampshire recorded that “…during the second half of 2012 – [Mr Tarif] developed a Major Depressive Disorder and Panic Attacks”. He added:
“Dealing firstly with his depression, he scored 27/63 on the BECK Depression Inventory which would put him in the mild to moderate range of depression however this is inconsistent with the history he gave me and on the Mental State Examination I found him to be more severely depressed.”
Dr Hampshire diagnosed Mr Tarif with Major Depressive Disorder with melancholic features and panic attacks. Dr Hampshire noted that Mr Tarif had commenced having panic attacks well over a year ago, which occur more than once per month but less than weekly. He further noted that the panic attacks “grossly impair with his cognitions”.
Dr Hampshire concluded that he could not “make sense of [the extensive documentation relating to Mr Tarif’s job tasks] in terms of him being unfairly treated or not”. He noted that there were a number of workplace incident reporting forms which appeared to be related to “somewhat trivial but relentless harassment”. He assessed Mr Tarif to have suffered 19 per cent whole person impairment.
On 30 January 2013, Mr Tarif attended on Dr Leonard Lee, consultant medico-legal psychiatrist qualified by the respondent. Dr Lee recorded a history that Mr Tarif had been accused of not doing his work properly. He noted that Mr Tarif’s results on the Test of Memory Malingering suggested “he did not attempt maximal effort”.
Dr Lee made the following diagnosis:
“In my opinion, while Mr Tarif indicates that he suffers with chronic depression with impaired concentration as a result of maltreatment at work, the accompanying documentation indicates that he was frequently absent during weekdays and selectively attended during weekends when his work performance was poor including playing games instead of working, which is inconsistent with a psychiatric disorder. This together with his presentation indicates that it is more likely than not that he does not have an axis one psychiatric diagnosis such as major depression.”
As to his opinion concerning whether the employment was a significant contributing factor to the alleged injury, Dr Lee said “I am not satisfied given the material provided that [Mr Tarif] was injured at work because he tended to be absent during weekday shifts but attended on weekends when he had increased responsibilities”. Dr Lee expressed that Mr Tarif had previously indicated that his lifestyle and family activities accounted for his absenteeism and therefore that was more likely than not to be a significant contributing factor.
In evidence are statements from Mr Tarif’s colleagues, Ms Sue Narayan, dated 5 September 2013, and Ms Rowena Saxon, dated 6 September 2013 respectively. In those statements, Ms Narayan and Ms Rowena describe the conduct of Ms Arora and Ms Zdziebko towards them and how it affected them. These statements do not specifically address any incidents involving Mr Tarif but suggest an environment of “harassment” and delivery by Ms Arora and Ms Zdziebko of unwarranted disciplinary action.
On 22 October 2013, Mr Tarif again attended on Dr Hampshire. Dr Hampshire records a history that it was “around the end of 2011 that a new management team arrived [at the respondent] and the bullying commenced”.
Dr Hampshire again administered the BECK Depression Inventory Test and was “struck by the severity of the downturn in [Mr Tarif’s] mood”, noting that his depression now fell in the “severe range”. He concluded that Mr Tarif “continues to suffer from a Major Depressive Disorder with melancholic features. He is also suffering from episodic Panick Attacks, but these are settling”.
Dr Hampshire noted that Mr Tarif was undergoing treatment, including a second course of antidepressants (Mr Tarif was trialled on Zoloft for three months but had been taking Cymbalta for a month and noticing an improvement, particularly in his panic attacks). Dr Hampshire also noted that Dr Bashir had prescribed Mr Tarif valium for stress and depression in 2012. Dr Hampshire assessed Mr Tarif with a 22 per cent whole person impairment which he found directly attributable to the harassment and bullying that he experienced in the workplace.
On 14 March 2014, Mr Tarif again attended on Dr Lee. He noted that Mr Tarif was taking the antidepressant, Cymbalta. Dr Lee found that although Mr Tarif’s performance, in undergoing a structured interview of malingered symptomatology, suggested a high likelihood of feigning or exaggeration, the possibility remained of an “atypical psychotic disturbance or neurologic or cognitive impairment”.
In response to Dr Hampshire’s report of 22 October 2013, Dr Lee noted “It would seem that [Dr Hampshire’s assessment of 22 per cent whole person impairment] is based on the reported impairment which may, with respect, be exaggerated The BDI has no validity scales.” (emphasis included in original). Dr Lee concluded that while Mr Tarif’s “presentation is consistent with a resolving depressive state, the SIMS [structured interview of malingered symptomatology] is inconsistent with depression as opposed to feigning, or a markedly atypical constellation of subjective symptoms”. It was unlikely that Mr Tarif had suffered a psychiatric injury and there was evidence of feigning and/or exaggeration of the alleged psychiatric disorder.
THE ARBITRATOR’S REASONS
The Arbitrator recorded in detail the submissions made by the parties. A summary of the parties’ submissions follows.
The applicant’s submissions
Mr Tarif submitted that he experienced difficulties in the workplace after the appointment of Ms Zdziebko and Ms Arora. The Arbitrator recorded (at [11] of Reasons) that according to Mr Tarif the problems which arose included:
“(a) an issue over the Thursday afternoon shift, temporarily vacated by [Mr Tarif];
(b) the fact that [Ms Arora] began blaming staff for errors, including an allegation that the weekend staff were not working properly;
(c) a family situation which arose within Mr Tarif’s family in mid-2011 as a result of which [Mr Tarif]was unable to attend a particular shift. This situation was only resolved after [Mr Tarif] took proceedings under the Anti-Discrimination Act 1977 in the Anti-Discrimination Board, and a conciliation agreement was reached between [Mr Tarif] and respondent on 3 August 2011;
(d) an allegation that [Mr Tarif] was “playing games” in the workplace (strongly denied by Mr Tarif);
(e) an incident when [Mr Tarif] wrote a report on a doctor’s note as opposed to on a nursing note – [Mr Tarif] gave an explanation for this action;
(f) a further incident when [Mr Tarif] was alleged not to have properly followed up upon a report of a fall experienced by one of the patients in the respondent's care;
(g) allegation of failure to properly complete necessary documentation before the end of each shift and of failure to supervise the team leaders’ work, and
(h) a dispute which arose in January 2012 over [Mr Tarif’s] request for leave. This matter was the subject of email correspondence between Andrew Burton, regional HR manager of the respondent and [Ms Zdziebko] which is to be found at pages 12-15 of the late document dated 3 September 2013.”
Mr Tarif alleged that he was micromanaged in a way that was unjustified. He submitted that no evidence had been called from either Ms Zdziebko or Ms Arora to respond to the allegations. Alleged complaints that had been made about Mr Tarif by family members of patients were unsupported by any documentation.
Mr Tarif submitted to the Arbitrator that Ms Saxon and Ms Narayan had complained of similar treatment at the hands of Ms Zdziebko.
Mr Tarif relied on medical certificates issued by Dr Bashir and Dr Hampshire’s diagnosis of major depression.
The respondent’s submissions
The respondent submitted that the evidence did not establish that Mr Tarif had suffered an injury arising out of or in the course of his employment. Alternatively, its conduct in calling upon Mr Tarif to attend a meeting in September 2012, to discuss its concerns, was reasonable action.
Notwithstanding complaints of micromanagement arising out of incidents in 2010 and 2011, there is no evidence to suggest that Mr Tarif suffered an injury at that time or sought treatment.
The complaint of discrimination in relation to Mr Tarif’s carer’s leave in 2011 to the Anti- Discrimination Board was resolved by a conciliation agreement and there was no evidence that Mr Tarif’s health had been adversely affected. Mr Tarif did not seek treatment or access the employee assistance program that had been available to him.
In the context of Mr Tarif’s employment, working in a nursing home in the care of elderly patients, objectively the employer had every right to micromanage or closely monitor his activities.
Dr Lee expressed the view that there was no evidence that Mr Tarif had sustained an injury arising out of or in the course of his employment as a result of the so called “micromanagement” issues.
The evidence that co-workers had also been placed under pressure was not probative of Mr Tarif’s allegations.
In essence, Mr Tarif was attempting, in the absence of any contemporaneous complaint or assertion at the relevant time, to construct an “ex post facto” case of micromanagement, harassment and bullying as a basis for his claim. This was evidenced by the fact that he had first consulted a doctor in relation to his alleged injury on 8 October 2012, well after he had ceased active involvement in his employment with the respondent.
In the alternative, the respondent submitted that if it were found that Mr Tarif had suffered an injury, arising out of or in the course of his employment, it was as a consequence of the receipt of the letter to him in September 2012 requiring him to participate at a fact-finding meeting on 12 September 2012. It was submitted that the respondent’s actions in so doing were reasonable action, taken or proposed to be taken, with respect to performance appraisal and discipline.
Mr Tarif’s first consultation with Dr Bashir in relation to work related stress was on 8 October 2012, one month after the letter of 3 September 2012.
THE ARBITRATOR’S CONCLUSIONS
The Arbitrator set out a detailed account of Mr Tarif’s allegations of micromanagement and harassment. He also analysed in some detail, the content of Dr Bashir’s medical certificates and the assessments and conclusions by Drs Hampshire and Lee.
The Arbitrator stated his conclusions at [53]–[69] of the Reasons. He found that the incidents complained of in 2010 and 2011 (involving the Anti-Discrimination Board) appeared to have been satisfactorily resolved. There was obviously a level of discord between Ms Zdziebko, Ms Arora and Mr Tarif from 2011 onwards. Mr Tarif had refuted all allegations made against him in respect to his work at Winston Lodge. The Arbitrator also noted that no evidence had been called from either Ms Zdziebko or Ms Arora to counter or refute Mr Tarif’s allegations.
The Arbitrator noted that the material, which is voluminous, had not been presented in any logical or chronological order. (In addition to the voluminous Application to Resolve a Dispute and the Reply, there were at least 12 subsequent Applications to Admit Late Documents). The Arbitrator commented at [56]:
“Based on this material it is not possible, or necessary to come to any concluded view as to [Mr Tarif’s] complaints of micromanagement, bullying and harassment on the part of the employees of the respondent, particularly Renata and Belinda, or the complaints by these two persons concerning [Mr Tarif’s] performance as a registered nurse in the Winston Lodge. It is obvious that there was a degree of ill feelings between the parties, particularly from [Mr Tarif] towards [Ms Zdziebko] and [Ms Arora].”
Whatever the difficulties were between 2011 up to 11 September 2012, when Mr Tarif last worked at Winston Lodge, there was no evidence that he consulted a doctor for any psychological problems he may have been experiencing as a result of his employment. His first complaint to Dr Bashir that he was suffering work related stress was on 8 October 2012.
The Arbitrator analysed in some detail the history and findings of Drs Hampshire and Lee at [58]–[66] of Reasons.
The Arbitrator concluded that the medical certificates of Dr Bashir were not of any great assistance in the absence of a medical report from him.
The Arbitrator concluded (at [68]) that Mr Tarif did not suffer a psychological injury arising out of or in the course of his employment. He accepted the opinion of Dr Lee in preference to that of Dr Hampshire. His reasons for doing so were recorded (at [68]) in the following terms:
“(a) as noted earlier, irrespective of the merits or otherwise of the respective complaints either by [Mr Tarif] or [Ms Zdziebko] or [Ms Arora] as to [Mr Tarif’s] performance up until he ceased employment in September 2012, there is no evidence at all of any complaint of any psychological systems or distress caused by what was going on at work;
(b) the first complaint of any psychological distress is to Dr Bashir on 8 October 2012;
(c) the history given to Dr Hampshire on 29 January 2013 of the development of recurrent panic attacks occurring more than once per month, but perhaps less than weekly, and present for well over a year is simply not supported by any contemporaneous medical evidence. That history would place the panic attacks commencing in January 2012 and, on the evidence, that is simply not the case;
(d) I accept the evidence of Dr Lee in respect of the tests he administered to [Mr Tarif], and also his criticism of the BDI test administered by Dr Hampshire which he said has no validity scales. I think it is significant that [Mr Tarif] saw Dr Lee on 30 January 2013, the day after he first saw Dr Hampshire, when the first two tests were administered by Dr Lee;
(e) whilst I do not accept Dr Lee's initial opinion that [Mr Tarif’s] behaviours were consistent with narcissistic personality traits (a view from which he retreated in his later report), I do accept Dr Lee's opinions on the findings of the tests administered by him as opposed to the BDI test administered by Dr Hampshire.”
The Arbitrator concluded that for the reasons referred to above, Mr Tarif had failed to discharge the onus of proof of demonstrating that he suffered a psychological injury arising out of or in the course of his employment with the respondent.
In the event that the Arbitrator’s conclusion in relation to the injury issue was wrong, he addressed the respondent’s s 11A defence. He found that Mr Tarif did not consult his medical practitioner with any complaint as to work related stress until 8 October 2012. Therefore, if, contrary to his finding on the injury issue, Mr Tarif did suffer psychological injury, it was the result of the receipt of the letter dated 3 September 2012, requesting him to attend a meeting on 12 September 2012 to address the five concerns about his performance and attendance. Ultimately, Mr Tarif did not attend that meeting, giving as his reason his absence on annual leave.
The Arbitrator accepted the respondent’s submission at the arbitration, namely that it was entitled to raise matters of concern with Mr Tarif’s work performance with him, particularly having regard to the nature of his responsibilities, caring for aged and frail patients.
As the Arbitrator noted on the evidence, it was not possible to make factual findings on the allegations of lack of attention to duties, lack of supervision, poor work attendance, or the correct writing up of medical progress notes. Whilst Mr Tarif refuted those allegations, that was not to the point. If the respondent was concerned as to Mr Tarif’s work performance, it was entitled to investigate that performance. That investigation was commenced by way of a letter dated 3 September 2012 to Mr Tarif. The question the Arbitrator addressed was whether such action was reasonable.
There was no evidence from Mr Tarif that his denials of poor work performance, or failure to properly complete his duties were ever conveyed to either Ms Zdziebko or Ms Arora. The invitation to attend the meeting in September provided Mr Tarif with that opportunity. It was made clear to him that there was no threat of dismissal and that he was entitled to have a support person present. Further, that he could access the employee assistance provider on a nominated phone number.
The notice was expressed to be a formal direction, requiring Mr Tarif’s attendance. Ultimately the meeting never eventuated.
By the time Mr Tarif sought treatment on 8 October 2012 in relation to his psychological symptoms, he had not been at work since 11 September 2012.
The Arbitrator concluded that the respondent’s actions in requiring Mr Tarif to attend a meeting, for the reasons referred to in the letter of 3 September 2012, were reasonable in the circumstances and constituted reasonable action on the part of the respondent with respect to performance appraisal, or discipline.
GROUNDS OF APPEAL
The appellant alleges that the Arbitrator erred by:
(a) finding that it was not possible nor necessary to come to any concluded view as to Mr Tarif’s complaints of micromanagement, bullying and harassment (ground one);
(b) determining that there was no evidence at all of any complaint of any psychological systems or distress caused by his employment (ground two);
(c) preferring Dr Lee’s evidence, when so doing, failing to properly analyse and evaluate the competing opinions in light of both the medical evidence and the lay evidence and failing to give proper reasons for the acceptance of Dr Lee’s report (ground three);
(d) finding the s 11A defence was available notwithstanding the performance appraisal resulted from unreasonable workloads and demands by the respondent (ground four), and
(e) finding that the worker’s psychological condition was not caused by work, when such a conclusion was supported by Drs Bashir and Hampshire, notwithstanding the absence of evidence of complaints of panic attacks or psychological symptoms (ground five).
SUBMISSIONS AND FINDINGS
Did the Arbitrator err in not reaching a concluded view on the merits of the allegations of micromanagement, bullying and harassment? (ground one)
The appellant submits that it was possible for the Arbitrator to come to a concluded view as to his complaints of unreasonable micromanagement, bullying and harassment on the part of the respondent’s employees. There was uncontested evidence from Ms Saxon and Ms Narayan of the adverse state of the appellant’s work environment which was not refuted.
The Arbitrator accepted (at [54], [56] and [68]) that there was an obvious level of discord between Mr Tarif, Ms Arora and Ms Zdziebko. The Arbitrator set out in some detail the nature and extent of Mr Tarif’s allegations (see [62] of this decision). The Arbitrator also had regard to the histories contained in the reports of Drs Hampshire and Lee.
Dr Hampshire, on whose opinion the appellant’s case principally rested, did not make any attempt to analyse the merits of the complaints between the parties. He stated (at p 9 of his report of 29 January 2013) that he could not “make sense of [the extensive documentation relating to Mr Tarif’s job tasks] in terms of him being unfairly treated or not”. He proceeded on the acceptance of the fact that there was a significant level of discord in the workplace.
The Arbitrator’s conclusion on the question of injury turned on the fact that, irrespective of the merits of Mr Tarif’s allegations of micromanagement, there was no evidence at all of any complaints of symptoms of a psychological condition caused by the events that had been unfolding in the workplace prior to Mr Tarif ceasing work in September 2012. That was a finding that was open to the Arbitrator and it did not involve error.
Mr Tarif failed on the question of injury not because the Arbitrator did not examine and reach a concluded view on his allegations of micromanagement, bullying and harassment, but because even if his allegations were accepted, he failed to discharge the onus of proof that he suffered a psychological injury by reason of same.
Consequently ground one fails.
Were there complaints of psychological symptoms or distress? (ground two)
The appellant submits that the Arbitrator’s decision not to make a determination on the lay evidence as alleged in ground one, affected his reasoning and caused him to err in the exercise of his discretion when he determined (at [68] of Reasons) that there was no evidence at all of any complaint of any psychological symptoms or distress caused by what was going on at work.
The appellant further submits, if the Arbitrator had properly determined that the evidence of Ms Saxon and Ms Narayan corroborated the appellant’s complaints of an adverse work environment, he “would have had little trouble in accepting [Mr Tarif’s] evidence of onset of panic attacks and stress from early 2012 and worsening of his depression in the later half of 2012 as referred to by Dr Hampshire”.
The appellant’s submission that the Arbitrator did not make a determination based on the lay evidence is incorrect. The Arbitrator specifically referred to the evidence of Ms Saxon and Ms Narayan (at [15] and [54] of the Reasons). The Arbitrator accepted that Ms Saxon and Ms Narayan corroborated the appellant’s complaints of discord in the workplace.
At the arbitration hearing before the Arbitrator the appellant’s counsel, Mr Hickey, conceded (at T23.22 of 28 April 2014), that the evidence of Ms Saxon and Ms Narayan, which Mr Hickey accepted was hearsay evidence, corroborated complaints of micromanagement and harassment by Ms Arora and Ms Zdziebko. As Mr Hickey correctly submitted, the evidence of Ms Saxon and Ms Narayan provide “insight” into what was happening at the workplace. However, their evidence is not directly relevant to Mr Tarif’s complaints and do not deal with, and certainly do not corroborate, Mr Tarif’s allegations of the onset of panic attacks and stress from the early part of 2012.
In addition to the reasons given by the Arbitrator, I note that Mr Tarif visited Dr Bashir on 21 occasions between 4 April 2012 and 8 October 2012 and on none of those occasions did the doctor make any reference to any complaints of anxiety, panic attacks or any other psychological symptoms.
It follows that the Arbitrator’s finding of absence of panic attacks and stress from the early part of 2012 was consistent with the evidence presented and did not involve error.
Did the appellant suffer a psychological injury? (ground three)
The appellant alleged that in reaching his conclusion that the appellant did not suffer a psychological injury arising out of or in the course of his employment, the Arbitrator erred by preferring Dr Lee’s evidence, because Dr Lee failed to analyse and evaluate the evidence in relation to the worker’s ongoing treatment and prescriptions of medication.
The appellant submitted that the Arbitrator failed to have regard to the fact that Mr Tarif was prescribed Valium by Dr Bashir in 2012, for stress and depression, and was subsequently prescribed antidepressants, Cymbalta and Zoloft.
Dr Hampshire refers to Mr Tarif being prescribed Valium in 2012 for stress and depression. Dr Bashir’s clinical notes (Application to Admit Late Documents 15 August 2013, p 5) include a “Full History [of] Medications” prescribed for Mr Tarif between April 2012 and January 2013. Not only was Valium not listed as being prescribed, no antidepressants at all were prescribed by Dr Bashir during that period. Dr Bashir’s medical certificates on 15 October 2012 and 12 November 2012 suggest that the management plan was “off duty and required counselling”. There was no mention of medication.
The evidence does not reveal when Zoloft was trialled, however Dr Hampshire’s report indicates that Mr Tarif could not have been prescribed Cymbalta until at least September 2013, well after the alleged events. It follows that the prescription of medication does not advance Mr Tarif’s case and, whether or not the Arbitrator took that into account, it cannot amount to an error that has affected the outcome.
Further the appellant alleges that he “feels aggrieved” by the Arbitrator’s alleged failure to consider the fact that Mr Tarif was taking antidepressant medication, namely Cymbalta, at the time of Dr Lee’s assessment. This submission was not supported by any reasoned argument or reference to relevant evidence.
There is no evidence that Dr Lee’s opinion was affected by Mr Tarif’s impaired cognitive abilities at the time of his assessment by reason of his ingestion of antidepressant medication. Dr Lee’s opinion was based, among other things, on the results of objective testing. The results of the SIMS test indicated that Mr Tarif was feigning psychiatric disorder. The Test of Memory Malingering (TOMM) indicated malingering. There is simply no evidence that the results of these tests were in any way affected by Mr Tarif’s medication.
Further it is submitted that the Arbitrator erred by failing to properly and adequately analyse the lay and medical evidence and provide adequate reasons for his decision. That submission again was unsupported by any reasoned argument and I reject it. The Arbitrator set out in considerable detail his analysis of the evidence on the question of injury at [53]–[69] of the Reasons. The Arbitrator’s conclusions are summarised at [75]–[89] of this decision, but at risk of repetition they may briefly be summarised as follows:
(a) the incidents complained of in 2010 and 2011 (involving the Anti-Discrimination Board) appear to have been satisfactorily resolved;
(b) there was obviously a level of discord between Ms Zdziebko, Ms Arora and Mr Tarif from 2011 onwards;
(c) whatever the difficulties were between 2011 up to 11 September 2012, when Mr Tarif last worked at Winston Lodge, there was no evidence that he consulted a doctor for any psychological problems he may have been experiencing as a result of his employment;
(d) the medical certificates of Dr Bashir were not of any great assistance in the absence of a medical report from him, and
(e) Dr Lee’s evidence was to be preferred because:
(i)the history given to Dr Hampshire on 29 January 2013 of the development of recurrent panic attacks was not supported by any contemporaneous medical evidence;
(ii)the BDI test administered by Dr Hampshire could not be validated, and
(iii)Dr Lee's opinions and findings were based on objective testing.
An Arbitrator’s obligation to give reasons depends on the circumstances of the individual case: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 per Samuels JA (Clarke JA and Hope AJA agreeing). The issue before the Arbitrator was whether Mr Tarif had suffered a psychological injury arising out of or in the course of his employment. The Arbitrator exposed his reasoning on the critical issues in dispute and articulated the essential grounds upon which he based his decision (Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 per McHugh JA at 280). The Arbitrator’s reasons were adequate in the circumstances.
Accordingly ground three fails.
Was the alleged psychological injury caused by work? (ground five)
The appellant submitted it was “not to the point” that the worker was found not to have suffered psychiatric injury because of an absence of complaints of panic attacks from the start of January 2012. He submitted that it is often the case that workers “put up with stress and abuse in the workplace for years until incapacity finally occurs” and then they resort to seeking medical attention. The mere fact that Mr Tarif did not seek medical attention until 18 October 2012 (sic, 8 October 2012) “is not definitive of not having had psychological symptoms over 2012”. The appellant submitted that the evidence of Dr Bashir and Dr Hampshire left it open for the Arbitrator to accept that Mr Tarif suffered the symptoms complained of over 2012.
An appeal such as this is characterised by the identification and correction of error (s 352 of the 1998 Act). No error has been identified in the appellant’s submission. This submission is no more than a plea that the Arbitrator should have viewed the evidence in a way that was favourable to the appellant. The Arbitrator had to determine whether Mr Tarif’s psychological condition had been caused by work by reference to the whole of the evidence. He did that and his findings were open on the evidence and disclose no error.
Moreover, the appellant’s submissions have failed to acknowledge that it was Mr Tarif who carried the onus of establishing that he suffered from a psychological injury arising out of or in the course of his employment. There is no report from Dr Bashir and his certificates do not advance the appellant’s case that his condition was related to his employment.
The Arbitrator’s conclusions were based not only on the absence of a complaint of panic attacks, but on the absence of any evidence of any psychological symptoms of distress caused by what was happening in the workplace.
It was open to the Arbitrator to conclude, as he did, that recurrent panic attacks occurring more than once per month, perhaps less than weekly and present for well over a year, was simply not supported by any contemporaneous medical evidence.
The Arbitrator’s ultimate conclusion that Mr Tarif had not suffered psychological injury arising out of or in the course of his employment with the respondent was certainly open on the evidence and discloses no error.
If Mr Tarif had suffered a psychological injury was it caused by reasonable action taken or proposed to be taken with respect to performance appraisal or discipline? (ground four)
This issue only arises if it is first established that Mr Tarif suffered a psychological injury that was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal or discipline. As the Arbitrator found that the necessary causation had not been established, and as that finding has been upheld on appeal, it is not strictly necessary to deal with the s 11A defence, however, for the sake of completeness I will deal with the issues that have been raised.
The appellant alleges that the Arbitrator erred in law and fact in determining that the respondent’s actions in calling a performance appraisal meeting were reasonable. He alleges that the evidence established that the intended appraisal “sprang from unreasonable and undue workload(s) imposed on the worker and unreasonable dealings with the worker in his workplace”.
The Arbitrator set out, at [74] of the Reasons, the principles he intended to follow as identified by the New South Wales Court of Appeal in Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [59]. The appellant has not taken any issue with the principles referred to by the Arbitrator. No error of law has been identified. The alleged error merely asserts that the Arbitrator should have formed a different conclusion on the evidence. That is a question of fact.
The Arbitrator acknowledged at [76] that Mr Tarif denied most of the allegations with respect to his performance. He did admit on one occasion to writing on a doctor’s note as opposed to a nursing note. The Arbitrator noted Mr Tarif’s allegation that any shortcomings in his supervision of the team leader’s work by ensuring that all necessary documentation was completed before the end of the shift, was because of an excessive and unreasonable workload placed upon him by Ms Arora and Ms Zdziebko. A similar allegation is made with respect to the spills kit check list allegation.
The Arbitrator found however that there was no evidence from Mr Tarif that these denials of his alleged poor performance or failure to properly complete his duties as a registered nurse in the Winston Lodge, were conveyed to either Ms Arora or Ms Zdziebko. The Arbitrator concluded that Mr Tarif was being given an opportunity by virtue of a letter of 3 September 2012, to give a response to concerns set out in that letter. The relevant terms of the letter are reproduced at [41] of this decision. The letter stressed that Mr Tarif was under no threat of dismissal and informed him of his right to have a support person present and/or to access the employee assistance provider on a nominated telephone number.
Notice of the letter was sent by post on 3 September 2012, requiring Mr Tarif to attend a “fact finding meeting” on 12 September 2012. Allowing a few days for the letter to reach him this should have given Mr Tarif about a week’s notice of the meeting. Yet, according to Mr Tarif, the letter took seven days to reach him as he claims not to have received it until 10 September 2012, which coincidentally coincided with the commencement of his annual leave that day. This prompted Mr Tarif to seek a postponement of the proposed meeting.
It would appear that the respondent had given favourable consideration to his request to have the interview deferred until the completion of his annual leave, as I note that on 24 September 2012, Ms Arora, in an email to Ms Zdziebko, indicated that she had contacted Mr Tarif that day, at which time he indicated that he would let her know when he was available to attend the meeting. Therefore that evidence supports the conclusion that the employer acted reasonably with regard to the timing of the proposed meeting. Ultimately, the meeting never eventuated.
In order to succeed with a defence under s 11A of the 1987 Act, an employer must establish that a psychological 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, in this case, performance appraisal and/or discipline. This case has been conducted on the basis that the respondent’s conduct in calling Mr Tarif to a “fact finding” meeting was part of a process of performance appraisal. I intend to proceed, without deciding the issue, on the basis that it was part of a performance appraisal process, although I would not accept that it was action taken or proposed to be taken with respect to discipline.
As Basten JA observed (at [33]) in Jeffery v Lintipal Pty Ltd [2008] NSWCA 138, the statute does not require “that the action be demonstrated to be ‘unreasonable’ in order for a claimant to succeed, but rather … that compensation will not be payable if the action were ‘reasonable’”. The objective facts supported the Arbitrator’s conclusion that the respondent’s actions were reasonable. Mr Tarif was working in a nursing home and was charged with the responsibility for the care of elderly patients. Objectively, the respondent has a responsibility to closely monitor the way in which such care was administered to residents of the home. The consequences of the failure to follow strict protocols for the administration and recording of medication could be dire for the patients concerned. It was in the circumstances, appropriate to ensure that there were tight controls over the way in which the care of residents was managed, even if it resulted in a perception of micromanagement.
On the available evidence it was certainly open to the Arbitrator to conclude that it was reasonable for the respondent to investigate, in the manner that it did, issues which predominantly concerned shortcomings in compliance with procedures relating to patient care.
Therefore, had Mr Tarif established that he suffered a psychological injury by reason of the employer’s conduct in requiring him to participate in a fact finding meeting, the Arbitrator’s conclusion that such conduct was reasonable was a finding which was open on the evidence. Consequently no error has been established.
ORDERS
The name of the respondent in the Application to Resolve a Dispute and the Application –Appeal Against Decision of Arbitrator, lodged in the Commission on 16 November 2012 and 11 July 2014 respectively, is amended by consent to “Anglican Retirement Villages Diocese of Sydney”.
The Arbitrator’s determination of 16 June 2014 is confirmed.
COSTS
No order as to costs.
Judge Keating
President
24 September 2014
I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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