Van Der Poel v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Van Der Poel v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2024] NSWPIC 17
APPLICANT:	Peter Van Der Poel
RESPONDENT:	Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle
MEMBER:	Gaius Whiffin
DATE OF DECISION:	11 January 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claims for weekly benefits compensation, treatment expenses pursuant to section 60, and lump sum compensation pursuant to section 66; consideration of applicant’s and witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; respondent accepts that the applicant sustained a psychological injury to which his employment was the main contributing factor but relies upon a defence to his claim pursuant to section 11A; consideration of whether the respondent can establish that the applicant's psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to promotion, demotion, transfer or the provision of employment benefits; Department of Education and Training v Sinclair, Melder v Ausbowl Pty Limited, Pirie v Franklins Limited, Manly Pacific International Hotel Pty Limited v Doyle, Insurance Australia Group Services Pty Limited v Outram, Ponnan v George Weston Foods Limited, Temelkov v Kemblawarra Portuguese Sports and Social Club Limited, Smith v Roads and Traffic Authority of NSW, Baker v Southern Metropolitan Cemeteries Trust, Hamad v Q Catering Limited, and Drca v KAB Seating Systems Pty Ltd considered; consideration of whether (and if so, to what extent) the applicant has been incapacitated for work as a result of his psychological injury, since 13 September 2021; Ferro v Mercon Group Pty Limited, Stone v Stannard Bros Launch Services Pty Limited, Alto Ford Pty Limited v Antaw, and GIO Workers Compensation (NSW) Limited v GIO General Limited also considered; Held – the respondent has failed to establish its defence under section 11A; the applicant had no current work capacity between 13 September 2021 and 28 July 2023 and is entitled to an award pursuant to section 37(1) in this regard; the Personal Injury Commission does not currently have jurisdiction to make any award in favour of the applicant pursuant to section 38, regarding his claim for weekly benefits compensation from 29 July 2023; the applicant is entitled to have his reasonably necessary treatment expenses pursuant to section 60 paid by the respondent; the applicant’s claim pursuant to section 66 is remitted to the President for Medical Assessment.
DETERMINATIONS MADE:	The Commission determines: 1. As a result of events occurring in the course of the applicant's employment with the respondent, he has sustained a psychological injury pursuant to s 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act). His employment with the respondent is the main contributing factor to that injury. 2. Pursuant to s 15(1)(a)(i) of the 1987 Act, the applicant’s psychological injury will be deemed to have happened on 29 January 2021. 3. The respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to promotion, demotion, transfer, or the provision of employment benefits. 4. The applicant has been incapacitated for work as a result of the psychological injury since 29 January 2021, until at least 28 July 2023. 5. The applicant’s pre-injury average weekly earnings (PIAWE) is $2,595.50. 6. Between 13 September 2021 and 28 July 2023, the applicant had no current work capacity. 7. The Personal Injury Commission (Commission) does not currently have jurisdiction to make any award in favour of the applicant pursuant to s 38 of the 1987 Act, regarding his claim for weekly benefits compensation from 29 July 2023. 8. The applicant is entitled to have his reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act paid by the respondent, in relation to the psychological injury. The Commission orders: 9. There will be an award that the respondent pay the applicant weekly compensation pursuant to s 37(1) of the 1987 Act from 13 September 2021 to 28 July 2023, at the rate of $2,076.40 per week (as adjusted from time to time for relevant PIAWE variations pursuant to s 82A of the 1987 Act). 10. I grant leave to either party to approach the Commission prior to 7 February 2024, in order to apply for an amendment to the period during which the applicant is to receive his award pursuant to s 37(1) of the 1987 Act. 11. There will be an award that the respondent pay the applicant’s reasonably necessary treatment expenses pursuant to s 60 of the 1987 Act. 12. I remit the dispute to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: (a) date of injury: 16 November 2022 (deemed for the purpose of the applicant’s claim pursuant to s 66 of the 1987 Act); (b) body systems/parts: psychiatric and psychological disorders, and (c) method of assessment: whole person impairment. 13. The documents to be reviewed by the Medical Assessor are: (a) this Certificate of Determination together with its accompanying reasons; (b) the Application to Resolve a Dispute and its attached documents; (c) the respondent’s Reply and its attached documents, and (d) the applicant’s Application to Admit Late Documents dated 16 August 2023 and its attached documents, save for the following: (i) pages 5-13 - the report from Dr Dinnen dated 9 August 2023 and the applicant’s statement dated 23 June 2023, and (ii) paragraphs 3 and 8-9 of the applicant’s 28 June 2023 statement – found between pages 14 – 18. 14. Following the completion of the Medical Assessment process, the dispute will be listed before me again for a preliminary conference in order to deal with any issues still requiring determination.

STATEMENT OF REASONS

BACKGROUND

Peter Van Der Poel (the applicant) is 55 years old and commenced employment with the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (the respondent) in 1993. He worked as a teacher and also held other leadership positions. From 1999, he worked at the respondent’s St Mary’s School at 16 Grant Street, Maitland. In 2018, St Mary’s School and the respondent’s St Peter’s School merged to form All Saints College (ASC). The applicant then continued to work for the respondent (at the same address) at ASC.
The applicant alleges that he sustained a psychological injury as a result of events which occurred during his employment with the respondent from 2019. He ceased working for the respondent as a result of this injury on 29 January 2021, and has not worked since.
It is apparent that the respondent initially paid weekly benefits compensation to the applicant after 29 January 2021, and also met his expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
However on 26 August 2021, the respondent issued a notice denying liability under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for the applicant's claim in relation to his psychological injury. The applicant has as a result not received any weekly benefits compensation since 12 September 2021, or payment of his medical expenses in relation to his treatment for his psychological injury since the date of the notice.
The notice denied liability, alleging that the applicant was not injured within the meaning of
s 4 of the 1987 Act. It also alleged that if he was injured, the injury was wholly or predominantly caused by reasonable action taken by the respondent with respect to promotion and/or demotion and/or transfer and/or the provision of employment benefits, in order to provide it with a defence to his claim pursuant to s 11A of the 1987 Act.
The applicant then, by letter dated 16 November 2022, made a formal claim upon the respondent for lump sum compensation pursuant to s 66 of the 1987 Act – the letter claimed that the applicant’s whole person impairment was 21% and attached medical evidence in that regard.
The respondent issued a further notice under s 78 of the 1998 Act on 5 April 2023, confirming its position in its 26 August 2021 notice, and specifically denying liability with respect to the applicant’s claim pursuant to s 66 of the 1987 Act.
By an Application to Resolve a Dispute (ARD) filed in the Personal Injury Commission (Commission), the applicant claims weekly benefits compensation from 13 September 2021 to date and on a continuing basis pursuant to ss 37 and 38 of the 1987 Act, and payment of his medical expenses in relation to his treatment for his psychological injury pursuant to s 60 of the 1987 Act, as well as lump sum compensation pursuant to s 66 of the 1987 Act.

ISSUES FOR DETERMINATION

The parties have agreed that the following issues remain in dispute:
(a) whether the respondent can establish (pursuant to s 11A of the 1987 Act) that the applicant's psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to promotion, demotion, transfer, or the provision of employment benefits, and

(b) if the answer to (a) is in the negative, whether (and if so, to what extent) the applicant has been incapacitated for work as a result of his psychological injury, since 13 September 2021.

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. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
An extensive conciliation conference was held in the dispute on 21 August 2023. On that occasion, Mr Luke Morgan of counsel appeared for the applicant instructed by Ms Bates, and Mr Fraser Doak of counsel appeared for the respondent instructed by Mr Ainsworth. The applicant was present in person (with his wife in support), and a representative from the respondent’s insurer (Ms Gagic) was also present.
As an agreed resolution of the dispute was not reached during the conciliation conference, the dispute proceeded to an arbitration hearing.
The applicant confirmed that his claim for weekly compensation was pursuant to ss 37 and 38 of the 1987 Act from 13 September 2021 and on a continuing basis. The applicant also confirmed that he only sought a ‘general order’ pursuant to s 60 of the 1987 Act. The applicant further confirmed that he sought a referral of his claim pursuant to s 66 of the 1987 Act to Medical Assessment in accordance with Chapter 7 Part 7 of the 1998 Act.
The respondent then formally advised that it did not dispute that the applicant had sustained a psychological injury pursuant to s 4 of the 1987 Act per se, but that it still denied liability to compensate him, relying upon s 11A of the 1987 Act.
It conceded that if it failed in its defence relying upon s 11A of the 1987 Act, the applicant would be entitled to a ‘general’ order pursuant to s 60 of the 1987 Act, as well as the referral of his claim pursuant to s 66 of the 1987 Act to Medical Assessment.
As a result of these agreements and concessions, the only issues currently requiring determination by the Commission (see paragraph 9 above) were agreed.
The parties agreed the applicant’s pre-injury average weekly earnings (PIAWE) at $2,595.50.
As a result of the extensive conciliation, there were time constraints on 21 August 2023 in the parties being able to provide submissions. Directions were therefore made regarding the provision of written submissions, which the parties have complied with.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)   the ARD and attached documents - the respondent did not object to the admission of any of these documents;
(b)   the respondent’s Reply (Reply) and attached documents - the applicant did not object to the admission of any of these documents, and
(c)   the applicant’s Application to Admit Late Documents dated 16 August 2023 (applicant’s AALD) and attached documents, save for the following (objected to by the respondent and agreed to be removed by the applicant):
(i)pages 5-13 – the report from Dr Dinnen dated 9 August 2023 and the applicant’s statement dated 23 June 2023, and
(ii)paragraphs 3 and 8-9 of the applicant’s 28 June 2023 statement – found between pages 14-18.

Oral evidence

There was no oral evidence called at the arbitration hearing.

Applicant’s evidence

There are three statements from the applicant in evidence. The first statement was signed on 7 May 2021 and is found at page 1 of the ARD. It was prepared following conversations between the applicant and an investigator retained by the respondent, Jason Glynn.
The applicant says that he commenced employment with the respondent in 1993, and that he had been employed by it at ASC since 2018. He had taught Personal Development Health & Physical Education (PDHPE) since 1999, and he also explains that he had held other leadership positions:
“From 2007 to 2015, I held the position of Student Coordinator. In 2016 I was the Studies Coordinator for PDHPE. In 2017/2018 I was the Wellbeing and Academic Care Coordinator. In Term 4 2018, I was appointed Senior Coordinator, Wellbeing. I held that position until the end of 2020 to support the newly appointed Executive, as the current model at the time was not working.”
The applicant reported directly to Marc Romano (Romano), who was the respondent’s College Principal, in 2018 and 2019. He then reported directly to the respondent’s Head of Campus at St Mary’s, Kathryn Johnstone (Johnstone), from the beginning of 2020.
The applicant says that he sustained a psychological injury, for which he first sought medical attention on 2 December 2020. He identifies 25 incidents relevant to the injury, and he summarises:
“I could not handle being at the School after being told that I was not successful for the Senior Wellbeing Coordinator role. Since participating in the April 2019 HR investigation, the accumulation of targeted workplace bullying, lack of recognition and exclusion over three years (2018 – 2020) had finally reached a tipping point.”
The applicant says that prior to sustaining his psychological injury in the course of his employment with the respondent, he had never been diagnosed with any psychological injury, and had not sustained any other work or non-work injuries.
The first incident identified by the applicant occurred at the end of a Student Coordinator Meeting in 2019, when Johnstone said to him “I’d better stop talking otherwise I’m going to say something I regret”. He says that he “felt quite threatened by that comment”.
The second incident identified by the applicant revolved around the lack of transparency or discussion prior to classes being allocated to the applicant by the respondent. At the beginning of 2020, the applicant was allocated a shared PDHPE class and told by his Leader of Learning, Shane Whereat (Whereat), that he had no other option. However, after the applicant approached Romano, a more suitable option for the applicant was allocated. However, at the beginning of 2021, the applicant was to be allocated two Exploring Early Childhood classes, when he had expressed his desire not to be allocated those classes as he had traditionally taught PDHPE consistently, and as there was “no logical reason” for him not to continue to teach PDHPE. On this occasion, there were no meetings with Whereat and the applicant’s attempts to discuss the allocations with Johnstone did not eventuate. The applicant says that he “felt devalued and that my experience was disregarded”.
The third incident identified by the applicant occurred on 4 June 2019. The applicant had not attended the 2019 Student Coordinator Retreat, advising Johnstone prior to it that he wanted to be with his pregnant wife. Following the retreat, he was approached by Johnstone, who questioned his commitment, and when he explained that his family came first, she said in a sarcastic tone “Does it?”. He says that that comment made him feel harassed and guilty for putting his family first. He also says that he viewed the comment as hypocritical as Johnstone produced slides at a subsequent meeting on 28 January 2021 specifically referring to “Family first”.
The fourth incident identified by the applicant involved him being unsupported by Johnstone when he chaired Wellbeing Meetings in 2019 and 2020, and complained to her about Sonya Ceccato (Ceccato), a Student Coordinator, being unprepared for the meetings and not offering any agenda items. Johnstone’s response was that Ceccato had a “different perception of the role”.
The fifth incident identified by the applicant occurred in February 2020 when the applicant attended an “uncomfortable” meeting between Romano and a Dr Belcher, when Romano alluded to a perception that Dr Belcher was in a relationship with a casual teacher (Caitlin Anderson) and said to Dr Belcher “I am glad you brought Peter along because I’m not intimidated by Peter”. The applicant says that he felt confused and intimidated by that comment.
The sixth incident identified by the applicant occurred during the COVID-19 pandemic, when the applicant (as Senior Wellbeing Coordinator) sent regular emails to staff and students with self-care tips. He says that he was proud of this initiative and received excellent feedback from staff, but no recognition from Romano or Johnstone. He says that he felt devalued and not appreciated.
The seventh incident identified by the applicant occurred when Romano did not send out a congratulatory email following the birth of his child in September 2019, despite the fact that Romano regularly sent out congratulatory emails when other staff had children. The applicant says that he felt unimportant, excluded, devalued, confused, and disappointed at receiving differential treatment.
The eighth incident identified by the applicant occurred in June 2020 when Romano declined the applicant’s offer to be on a committee of volunteers, to devise a new house structure to support ASC. The house structure was relevant to the applicant’s role and another member of the committee (Damian Norris) was surprised that the applicant was not on it. The applicant says that he felt unimportant, excluded, devalued, and not recognised.
The ninth incident identified by the applicant involved him receiving no recognition from Romano or Johnstone when he went to the considerable effort of arranging Beanie Day on
3 July 2020 and Resilience Day on 6 November 2020, for which he was also asked to write articles for the respondent’s media department. Instead, Romano’s comment was “There should be more of them”. He says that he felt excluded and unimportant, and that he interpreted Romano’s comment as meaning that he was in fact not doing enough.
The tenth incident identified by the applicant occurred in July 2020 when the applicant was excluded by the respondent’s Assistant Principal Wellbeing, Raeleen Austin (Austin), from providing feedback regarding role descriptions, when feedback was sought from the respondent’s other Senior Wellbeing Coordinators. The applicant was “shocked”, and he felt embarrassed as well as excluded.
The eleventh incident identified by the applicant occurred prior to the 2020 Higher School Certificate examinations when the respondent’s Wellbeing Office was relocated. The applicant expressed concerns to Austin that the office’s new space was inappropriate for conducting interviews to discuss wellbeing issues, but the applicant’s concerns were dismissed. The relocation caused the applicant stress as to access his desk in the office’s new space, he often had to interrupt other wellbeing interviews.

The twelfth incident identified by the applicant occurred on 6 August 2020. The applicant had been excluded by Whereat from being involved in picking the trial Higher School Certificate PDHPE examination paper. When he approached Whereat in this regard, Whereat suggested in a hostile manner that “Let’s go to the source” and see the respondent’s Assistant Principal Learning, Claudette Stace (Stace). Then, during the resulting meeting with Stace, Whereat said “Quite frankly Peter, I find you difficult to deal with”. The applicant was shocked by this comment and felt distressed, belittled and embarrassed. Stace did not reprimand Whereat or deal with his comment effectively. She simply sent an email to both of them suggesting meetings and discussions, which never took place.
The thirteenth incident identified by the applicant occurred in September 2020 when Whereat altered the content of the instructions that the applicant had provided to his Year 12 students without informing the applicant.
The fourteenth incident identified by the applicant occurred during a practice session for the ASC 2020 Year 12 Graduation. The applicant had been helping student leaders to set up for an assembly that they were conducting later that day. When he turned up to the practice session, Johnstone approached him and aggressively said “You missed your part. I saw you sitting at the back”. The applicant explained where he had been, but felt embarrassed and belittled.
The fifteenth incident identified by the applicant involved him receiving no recognition from Romano during an organised lunch for the ASC Year 12 Student Leaders, despite the fact that he had been their mentor for 12 months, been involved in their election, and chaired over 30 of their meetings. He says that he felt “humiliated, disappointed, unimportant, excluded and devalued.”
The sixteenth incident identified by the applicant involved him not being invited to be part of a video produced by ASC’s PDHPE department for the school’s Final Assembly at the end of Term 3 2020, despite all other staff being involved in the video. He says that he felt embarrassed, particularly as the Year 12 students “would have been wondering why I had not participated”.
The seventeenth incident identified by the applicant occurred when Romano sent emails to ASC staff on 25 September 2020 and 13 November 2020, and when Johnstone sent an email to staff on 25 September 2020. The applicant explains:
“A number of staff were mentioned for their contributions, however, I was totally excluded despite the work I had done with the Student leaders, the Wellbeing initiatives, the Friday lunch Cluster sports, work I had done supporting students through COVID-19, case management of a number of Year 12’s and others…I felt humiliated, disappointed, unimportant, excluded and devalued.”
The eighteenth incident identified by the applicant occurred when he felt excluded after his name was not included on the list of staff available for student support during the 2020 Higher School Certificate, and when Stace then sent an email to ASC staff on 18 October 2020 thanking particular staff members (but not the applicant) for their work in preparing students for the Higher School Certificate. The applicant says that his name should have been on the list and should have been referred to in the email, due to the fact that he was the school’s Senior Wellbeing Coordinator, and had led many wellbeing initiatives during the year, case managed many students in wellbeing issues, and been privy to extensive wellbeing information about students.
The nineteenth incident identified by the applicant occurred at a Student Leaders Meeting which he chaired on 27 October 2020. Prior to the meeting, he had asked Romano “if he wanted me to continue in the role as Student leaders’ mentor, due to him not recognizing me at the end of Term 3 2020 with the previous Students leaders’ group”, and Romano had advised the applicant that he did. However, at the meeting, Romano advised the students that he and Johnstone would be attending the upcoming Student Leadership Camp, without mentioning whether the applicant would be. The applicant was then asked by one of the Student Leaders why he was not attending the camp, causing him embarrassment. The applicant advises that his “continued exclusion” was causing him “increased stress”, which he discussed at this time with Damian Norris.
The twentieth incident identified by the applicant occurred at a lunch for the new ASC Student Leaders for 2021, at which Romano ignored the applicant. He did not introduce the applicant as the Student Leaders’ mentor, or mention the work performed by the applicant with the previous Student Leaders despite praising that work.
The twenty-first incident identified by the applicant occurred after no members of the ASC Executive attended the Student Leaders Meeting on 24 November 2020, when traditionally Romano and Johnstone would. The applicant says that he interpreted this lack of attendance as meaning that he would not be successful with his Senior Wellbeing Coordinator role application (for which the interviews were to occur on 25 November 2020) as “they did not want to further engage with me”. He says that he felt abandoned.
The twenty-second incident identified by the applicant occurred during a College Leadership Meeting on 19 October 2020, when Wellbeing Policy changes were presented that the applicant (as Senior Wellbeing Coordinator) was unaware of. The changes had been proposed by two Year 11 Student Coordinators and ratified by Johnstone, and the applicant says that (due to his position) he should have been involved in discussing the changes. He felt “excluded from the process which led to stress”.
The twenty-third incident identified by the applicant occurred during Term 4 2020 when the applicant began an initiative (following consultation with Johnstone) to make Year 12 students’ study periods more effective. Johnstone prepared a list of action items on
21 August 2020, and the applicant attended to the items allocated to him, whereas Johnstone did not. As a result, the initiative was not able to be implemented and the applicant explains:
“This placed me in a position of high stress. I felt that I had let down teachers that were part of the initiative and the students, however it was out of my control. It was unfair to those students that did not have an allocated teacher for their study period and a good place to study in.”
The twenty-fourth incident identified by the applicant involved the ASC process for the selection of the Senior Wellbeing Coordinator for 2021. The applicant says that he decided to apply for the role even though he was “hesitant and fearful that the application would not go well, due to the incidents that had been happening since the HR investigation”. He explains that the Human Resources investigation occurred in April 2019, and following providing opinions and evidence as part of the investigation, he felt “great stress” as he was “worried that the Executive would be able to work out what my evidence was, with a potential negative impact on my position as Senior Wellbeing Coordinator and other repercussions”. He says that it became evident to him that following the investigation, he had fallen out of favour with members of the Executive (which included Romano and Johnstone).
Although he thought he had limited prospects of retaining the role of Senior Wellbeing Coordinator, he also notes:
“I was led to believe that how I was performing in the role was effective, and to therefore retain status quo. I had asked Marc a couple of times in the role as to how I was tracking, and he responded that he would let me know if there were any issues. He never approached me, therefore, I believed there were no issues as to how I was performing in the role.”
The applicant was interviewed for the role on 25 November 2020 by (among others) Romano and Johnstone. At the interview, he read a quote from a book gifted to him by the ASC 2020 Student Leaders, and offered the book to the Interview Panel for them to read at their leisure. He says that Romano then stated condescendingly “We get the jist”. He also says that at the end of the interview, Romano stated “Thank you. However, we need to act in the best interests of the College”, which suggested to him that it had already been decided that he would not be offered the role.
Romano informed the applicant on 26 November 2020 that he had not been successful in obtaining the Senior Wellbeing Coordinator role. The applicant says:
“I asked about all the work I had done and the fact that there had been no performance issues and that no one had ever questioned my performance or actions in the role. Marc’s response was, ‘Thank you for all the work you have done, but we don’t see that in the role in the future’, in reference to the duties I had done in the past…An inappropriate comment Marc made was, ‘In my wife’s school, you would be lucky to get an interview’. My mental health was in rapid decline by this point.”
The successful applicant for the Senior Wellbeing Coordinator role was announced on
10 December 2020 as Ceccato. This made the applicant feel embarrassed and unfairly treated, as Johnstone was aware of performance issues with Ceccato, yet he had no performance issues. In this regard:
(a)   Johnstone was aware that Ceccato was not visiting tutor group teachers in 2019;
(b)   Johnstone was aware that Ceccato did not complete the Term 4 2020 Wellbeing Meeting Survey;
(c)   Johnstone was aware of Ceccato personally attacking the applicant at a Term 3 2019 Student Coordinator Meeting, by saying “We can’t keep rolling out the same things like exercise, diet, sleep blah blah blah” - the applicant says that he left the meeting early due to this personal attack, and when he later raised it with Johnstone, she just commented “I noticed you left the meeting”, and
(d)   see the fourth incident identified by the applicant at paragraph 29 above.
The twenty-fifth incident identified by the applicant occurred on 11 December 2020 when Johnstone visited his office and said “I know that things did not work out your way, but you still have something to offer”. The applicant says that he felt undervalued, belittled and patronised. He also says that following the conversation:
“I was aware that I was required to pack up my current office that I had worked hard to physically set up, and now had to swap workspaces with Sonya. Psychologically, I could not handle this. This would had been a constant reminder as to what had gone on. I hit rock bottom at this point. My self-worth plummeted.”
The applicant says that he worked on 26 November 2020 and 27 November 2020, before taking sick leave until 10 December 2020. He then worked on 10 December 2020 and
11 December 2020, which was the final day of classes for 2020. He returned to work on
27 January 2021 “still in a stressed and fragile state”. His classroom allocations issues (see the second incident identified by him at paragraph 27 above) had not been resolved. He emailed Johnstone on 28 January 2021, expressing his concerns at his classroom allocations, and also expressing that he was still unwell. Johnstone emailed him later in the day stating that she was happy to talk to him about his concerns. She did not ascertain as to his wellbeing.
He also saw Whereat on 28 January 2021, but he did not enquire as to the applicant’s wellbeing or seek to discuss classroom allocations with him. The applicant says that he “walked past me and smirked, saying ‘G’Day Pete’”.
On 29 January 2021, the applicant attempted to meet with Johnstone at 10am, and was advised that she could then not be disturbed. The applicant says that he was then very stressed and shaking, as the School Year was about to commence on 1 February 2021 and his classroom allocations issues had not been resolved. He attempted to meet with Johnstone again at 12 noon, but she was still unavailable. He says that he then left ASC and has not returned since.
Johnstone did email him on 31 January 2021 and 1 February 2021, stating that it was his responsibility to “set lessons”, but she did not telephone him. He replied to the
1 February 2021 email, stating that his absence was “work related and to not be contacted”. He provided her with a medical certificate in this regard.
The applicant says that on his way home from work on 29 January 2021, he stopped his car and arranged the first available appointment with his general practitioner, Dr Kanjithanda, on 4 February 2021. He says that he had first discussed his distressed state with the doctor on 2 December 2020, and had obtained generic medical certificates from the doctor in relation to his absences from work in December 2020.
The doctor later provided the applicant with a certificate of capacity on 19 February 2021, following the applicant’s decision to make a workers compensation claim. The doctor also referred the applicant to a psychologist through Life Matters.
The applicant’s second statement was signed on 1 September 2022, and is found at page 36 of the ARD. The statement updates the applicant’s situation since his first statement, advises as to further stressful employment events that the applicant had been subjected to since his first statement, and attaches a number of annexures.
The applicant says that he is still on leave without pay from the respondent, and had not worked there since 29 January 2021. He says that he has had no capacity to work during that period. He lists his psychological symptoms as including loss of concentration, lack of motivation, anxiety, high blood pressure, insomnia, rumination and preoccupation with workplace incidents, feelings of hopelessness and worthlessness, excessive worry about his future, as well as headaches and neck pain due to stress.
The applicant’s general practitioner is still Dr Kanjithanda, who is prescribing his medication. He is also having regular monthly counselling sessions with a psychologist, Dr Tadic from Life Matters, and regular physiotherapy treatment. He has also consulted with a pain management specialist, Dr Tame.
The applicant says that:
“the ongoing poor treatment from my employer has made my condition worse. It’s prevented me from recovering and being unable to return to work. The diocese has been constantly unfair and often illegal in its approach towards me. The ongoing exclusion and heavy-handed tactics of the diocese since I’ve been off work have exacerbated my depressive condition.”
In relation to these ongoing issues, the applicant identifies:
(a)   receiving copies of statements signed by Romano and Johnstone;
(b)   receiving a telephone call (which was not followed up) from the respondent advising that he had been overpaid and would be required to repay over $8,000;
(c)   further exclusionary incidents - such as his lack of appearance in the 2022 ASC Handbook and his exclusion from staff notices and surveys;
(d)   being provided with inappropriate return-to-work options;
(e)   having limited contact with his return-to-work officer;
(f)    being denied access to the respondent’s work systems, and
(g)   issues with the respondent’s direction for him to attend an independent medical examination.
I have considered the annexures to the applicant’s second statement, and will refer to them further if directed specifically to them during the parties’ submissions. They largely provide documentary support for the issues raised by the applicant at paragraph 65 above.
The annexures do however include a copy of a document entitled Review of All Saints’ College, Maitland – Executive Summary prepared in November 2021 for the respondent by Dr Dan White and Ms Terry O’Brien.
Importantly, the document makes findings including:
“The All Saints’ community is truly fortunate to have a team of very dedicated and committed leaders and staff members. The student body spoke highly of the quality of their educational experiences at ASC and the passion demonstrated by their teachers and support staff in assisting them with their academic endeavours while guiding their emotional, social and spiritual growth. The key challenge however is that, across each campus, staff are committed to differing and sometimes contrasting models of ‘service delivery’ to their students…The decision to formally amalgamate St Peter’s and St Mary’s schools into one cohesive and fully integrated 7-12 College is strategically affirmed and endorsed. However, the vision and mission for an integrated 7-12 college, is fragmented and is in need of significant clarification and review, especially within the staff community…Overall, the welfare and emotional wellbeing of students is one of the college’s highest priorities. Significant evidence was provided as to how and when the college had implemented a variety of strategies and initiatives to address wellbeing issues. That said, it has been discerned that the current tutor program within the college could be updated 7-12 and refined to more systematically address a range of contemporary student wellbeing issues. In addition, further attention could be given to nurturing a culture that values and recognises success, enhancing student engagement and providing greater opportunities for student voice…The care and wellbeing of all staff should always be of paramount importance within a Catholic school community. However, since the formal amalgamation of the two campuses into one college four years ago, it is evident that the morale and sense of community experienced by all staff has declined. The differing viewpoints about the long-term vision and overall structure of the college have been a source of tension, the lack of opportunities for genuine consultation and collaboration, combined with a professional and pastoral disconnect between the college executive team and the wider staff community, needs to be addressed and resolved…When All Saints’ was formally amalgamated, a new college leadership structure was established and appointed from the start of 2018. Whilst the executive leadership model was theoretically appropriate for a dual campus school, it has struggled to effectively connect with staff and to some extent students, within the current configuration of the college. In particular the panel noted that the opportunities for close collaboration and shared decision-making with the Middle Leaders in the college could be substantively enhanced. There were also challenges associated with role clarity, access to key personnel, the nature and level of consultation processes and across college communication channels. Other issues raised include decision making processes, change management, relational trust and human resource management processes.”
The annexures also include:
(a)   documentation in relation to wellbeing initiatives instituted by the applicant – reported in 24 ASC newsletters between 8 March 2019 and 20 November 2020;
(b)   an example of an email sent by Romano congratulating a staff member on the birth of his child, and
(c)   various statements from fellow ASC staff members to the applicant, generally praising the applicant’s extensive wellbeing initiatives and expert pastoral care and guidance to students, as well as evidencing the respect felt towards him by students and staff alike - the statements also bear witness to the applicant’s professionalism, contribution, commitment and organisational skills - these statements come from Justin Mahoney dated 15 November 2021 (unsigned), Anne Buffier dated 9 October 2021 (unsigned), Christopher Mooney dated
4 August 2022 (unsigned), Robert Moore dated 31 July 2022 (signed) and Father Matthew Kirby dated 28 October 2021 (signed).
The annexures also include responses prepared by the applicant to the statements (to be discussed later) signed by Romano and Johnstone. These responses are often submissions rather than evidence. I will discuss relevant comments made by the applicant in the responses when I discuss the statements.

The applicant’s third statement was signed on 28 June 2023, and is found at page 14 of the applicant’s AALD. Much of this statement is not in evidence (see paragraph 19(c) above), but in relation to the parts that are in evidence, the applicant updates:
(a)   he remains on leave without pay from the respondent - he has not worked since he last worked for it and has no capacity for work;
(b)   his treatment providers remain the same – see paragraph 63 above - although his medication has been increased, and
(c)   his psychological symptoms remain similar – see paragraph 62 above.
The applicant relies upon a medico-legal report from Dr Dinnen (psychiatrist) dated
21 September 2022, which is found at page 161 of the ARD.
The doctor takes a history that the applicant had never experienced mental health problems until he experienced increased stress and worry from the end of 2018 or early 2019. He records that this “was to do with his concerns about what was happening in the workplace”.
The doctor then records details which are otherwise not fully outlined in the applicant’s statements regarding his issues prior to the Human Resources investigation in April 2019. These included:
(a)   staff complaining to him (as a Wellbeing Coordinator) of problems following the merging of the respondent’s two schools to create ASC (including problems with ASC’s Executive);
(b)   he was aware of mental health issues with ASC’s students;
(c)   he considered himself to be “subject to a conflict of interest between his concerns for his colleagues and his apprehension about raising problems with the new Executive”;
(d)   he eventually raised his concerns about staff unrest with his then Principal, Tim Cleary (Cleary), in February 2019;
(e)   he left a meeting in tears after raising staff concerns at it, and being “shut down by the Principal”;
(f)    he was involved in the Human Resources investigation, but “The result of this enquiry was that nothing was done”, and
(g)   in relation to the investigation, “the Executive found out about his specific actions, even though the contributions were supposed to be anonymous”.
The doctor then records:
“From about April 2019, until he ceased work in January 2021, there was ‘one incident after another’. It was evident that he was not on the good side of the Executive.”
The applicant advises the doctor that he started to be excluded and treated differently. He was very stressed, worried about his job, and what incident would arise next. He “managed to push through” but lost a lot of sleep.
The doctor then takes a history of the applicant’s failed application for the position of Senior Wellbeing Coordinator in late 2020. Following that failed application, the applicant started to take days off work because he felt “too unwell”. During the school holiday period at the end of 2020, his sleep was disturbed, he was anxious and unhappy, he felt abandoned, and he “couldn’t get myself going”.
The doctor then takes a history of the applicant’s failed attempts to contact Johnstone at the end of January 2021 in order to discuss his classroom allocations. He records that the applicant told him that “I was shaking. I felt sick. I couldn’t handle being around people.”
The doctor then discusses his current condition with the applicant. The doctor records that he continues to consult with his general practitioner and his psychologist, and continues to take medication. He has sleeping issues, he gets agitated at night and during the day, he feels hopeless and worthless, he cries, he is withdrawn, he is irritable, he has lost confidence, he sees the future as hopeless, he avoids social interaction, and he is concerned about his memory and concentration.
The doctor records that he was provided with substantial documentation in order to prepare his report, including the applicant’s first statement, the applicant’s second statement, and medical evidence from Drs Roberts, Tadic, Kanjithanda, Tame, and Anwar. The doctor notes that all of this documentation (except Dr Roberts’ report) is both consistent with the applicant’s account during interview as well as his findings. He summarises his opinion as follows:
“The patient’s mental state as observed at interview and the history provided, indicated the presence of an ongoing psychiatric disorder as a result of workplace stressors. This had resulted in an adjustment disorder with anxiety, which in my view has now progressed to being a persistent depressive disorder (dysthymia). An alternative diagnosis would be major depressive disorder…The condition appears to be entrenched and he requires ongoing treatment. The prognosis is guarded.”
The doctor opines that the applicant is currently unfit for any form of employment.
The doctor then provides a second report dated 21 September 2022 (at page 170 of the ARD) in which he assesses the level of the applicant’s whole person impairment at 21%.
The applicant also relies upon a report from Dr Anwar dated 7 July 2022 (which is found at page 176 of the ARD). The applicant was sent to consult with the doctor directly by the respondent (rather than its insurer), in order for his fitness for duty to be assessed. The respondent did not object to the admission of the report, and I do not believe that the admission of it infringes cl 44 of the Workers Compensation Regulation 2016 as it is not a ‘forensic medical report’ within the definition provided in the clause. It was not obtained “for the purpose of proving or disproving an entitlement, or the extent of an entitlement, in respect of the claim or dispute”, but rather, it was obtained for the purpose of an employer ascertaining the fitness for work of one of its employees.
The doctor takes a history of the applicant’s interactions with Cleary from early 2018, which included micromanaging, bullying, targeting, harassment and lack of support. The applicant alleged Cleary was abrupt, not supportive, and had unrealistic expectations. This resulted in staff members complaining to him about bullying and harassment from Cleary. There were also complains to him when Cleary “cut off” the photocopier without advising staff and students. The doctor also records:
“In his role as senior wellbeing coordinator position, he spoke with Tim about the staff and students concerns in a staff meeting, he alleged Tim shut him down in front of the other staff members.”
The doctor then takes a history of the applicant’s involvement in the ASC Human Resources investigation in early 2019. He records:
“He felt that management started bullying him and targeting him because he provided statements to the investigation team about the allegations made against the executive team in 2019. He reported in June 2020, the management came to know about his statement in the inquiry against the executive members.”
The doctor then specifically records the third and seventh incidents raised by the applicant in his first statement (see paragraphs 28 and 32 above).
The progression of the applicant’s psychological symptoms is well recorded by the doctor, as follows:
“He reported due to the alleged bullying, harassment, and lack of support he started experiencing psychological symptoms around early to mid-2018. The psychological symptoms were intermittent in 2018. The intermittent psychological symptoms included feeling anxious, worried, overwhelmed. He felt unsupported, demoralised, and demotivated. The psychological symptoms gradually increased because of alleged bullying and lack of support by the management. He reported the management allegedly sweeping the allegations against the executive management under the carpet impacted negatively on his psychological well-being.
The psychological symptoms continued in 2019 and 2020 with varying intensity and frequency. The psychological symptoms during 2019 2020 included sleep problems, intermittent physical symptoms of anxiety including chest tightness, restlessness, rapid heart rate, sweatiness, fear of getting bullied, targeted, and harassed by the management, variable level of energy, concentration and motivation and feeling hopeless, helpless and devalued.
When he was removed from the senior well-being coordinator around December 2020, the psychological symptoms further aggravated. In December 2020, he started feeling persistently down, sad, and depressed. His sleep got affected. The energy, concentration and motivation levels started remaining persistently low. He became indecisive and struggled to enjoy time with his family and son. He was hoping during the Christmas holidays the psychological symptoms would improve. He reported the psychological symptoms continued during the Christmas period.
When he started the 2021 academic Year, he had concerns about role. He wanted to discuss his concerns with Catherine. He reported he felt ignored by management when management failed to speak or meet him to discuss his concern. The psychological symptoms further worsened when he started going to school in early 2021. When he could not cope at work, he saw his GP. The GP advised him to stop working and initiated a Workers’ Compensation claim for psychological injury.”
The doctor also records the targeting of the applicant after he ceased working for the respondent, as outlined by the applicant in his second statement and referred to at paragraph 65(c) above.
The doctor records the applicant’s ongoing psychological symptoms as including sleep problems, reduced energy, concentration and motivation issues, as well as feelings of anxiety, worthlessness, hopelessness, demoralisation, demotivation, sadness, and indecision. The applicant also gets some physical symptoms of anxiety, including chest tightness, breathlessness, and a rapid heart rate. The applicant avoids public places, social gatherings, and community activities, and he struggles to help his wife with their household activities, or to be intimate with her.
The doctor also records the following examination findings:
(a)   the applicant was unkempt and wearing untidy clothes;
(b)   the applicant described his mood as anxious;
(c)   the applicant’s affect was apprehensive, and
(d)   the applicant showed deficits in attention and concentration.
The doctor diagnoses the applicant with an adjustment disorder with mixed anxiety symptoms and depressed mood.
The doctor suggests a treatment plan for the applicant, and provides the following opinion:
“On balance of probabilities in my professional opinion he lacks capacity to work part-time or full-time in his pre-injury role with his pre-injury employer for the next at least three to six months. His capacity to return to work, participate in vocational rehabilitation process, future workplace, future role, working hours and work restriction can be assessed by his treating psychiatrist after three to six months…When he develops a return-to-work capacity, if he chooses to return with pre-injury employer at his pre-injury workplace, he needs to have mediation with pre-injury employer and management before he commences gradual return to work…If he chooses to work with an alternative employer, the vocational rehabilitation services can be involved when he develops a work capacity. I suggest gradual return to work once he develops a return-to-work capacity. I suggest four to six hours two days a week for two weeks. After that the working hours can be increased by four to eight hours every week until he reaches full-time weekly hours. He needs to have fortnightly reviews by his GP and psychologist until he completes two weeks of full-time weekly hours.”
The applicant’s treating psychologist, Dr Tadic, has also provided a report dated
25 May 2022 (which is found at page 172 of the ARD). As at the date of the report, she had consulted with the applicant on 14 occasions.
The doctor summarises the history provided to her by the applicant as:
“he stated that the last 2 years has seen a change in the culture of the school due to the new school principal, and specifically he felt that he had been unfairly treated by the executive leaders of the school. Peter reported a very detailed list of incidents that had occurred over the last 2 years which culminated in increasing stress, anxiety, and dissatisfaction work, and ultimately what he believes to be an unfair demotion. Peter reported that the treatment he received, culminating in the demotion, made him feel extremely hurt, de-valued and powerless and he no longer felt safe and supported in his workplace.”
The doctor had performed DASS testing. She finds that the applicant meets the criteria for being diagnosed with an adjustment disorder with mixed anxiety and depression. She also finds that the “numerous workplace incidents Peter described that occurred over an extended period” were the main contributing factor to the development of his adjustment disorder, while the “demotion was the main incident which tipped Peter over the edge”.
The doctor opines that the applicant lacks any capacity to return to work, due to his significant insomnia, cognitive difficulties, poor concentration, significant fatigue, as well as memory issues.
The applicant’s treating general practitioner, Dr Kanjithanda, has further provided a report dated 3 August 2022 (which is found at page 189 of the ARD).
The doctor summarises the history provided to him by the applicant as:
“He felt bullied and humiliated since the loss of his role as a senior well being coordinator and other issues with him feeling targeted after a participated in a human resource enquiry into the functioning of the executive with the school…Also felt ignored for certain classes he had requested for and no appropriate reason being given and he was also then given classes which he requested not to be given due to personal reasons…he feels depressed since this issues have not been resolved in spite of her seeking redressal.”
The doctor diagnoses the applicant with anxiety and depression, and opines that his employment with the respondent was the “main factor” in that diagnosis.
The doctor was prescribing medication to treat the applicant’s psychological condition, and he had also referred the applicant to a psychologist, a physiotherapist, and a pain specialist. He had certified the applicant as unfit for work until 13 August 2022.
The ARD (from page 369) contains certificates of capacity issued in relation to the applicant, and covering the period between 21 September 2021 and 14 August 2023, except for between 17 November 2021 and 15 December 2021. The applicant’s AALD (at page 19) then contains a further certificate of capacity issued in relation to the applicant, covering the period between 15 August 2023 and 15 November 2023. The certificates are all issued by
Dr Kanjithanda except for two dated 16 December 2021 and 14 January 2022, which were issued by Dr Ferguson.
The certificates are consistent in their certification of the applicant having no current work capacity, and they are also consistent (except for those prepared by Dr Ferguson, which simply diagnose depression and anxiety) in their diagnoses of “Depression/Anxiety neck pain from muscle stiffness with anxiety”. In relation to how the applicant’s injury is related to work, the certificates from Dr Kanjithanda all state (similarly to the summary referred to at paragraph 98 above):
“Feels undervalued, Bullied and humiliated since the loss of his role as senior Wellbeing co coordinator and also multiple issues with him feeling targeted after he participated in A human resource inquiry into the functioning of the executive at the school…Feels ignored for certain classes he requested with no reason being given and also been given classes that he requested not be given due to certain personal issues…feels depressed since the whole lot of issues are not being resolved.”
Finally, the ARD contains clinical notes provided in relation to the applicant by:
(a)   Dr Kanjithanda - from page 204;
(b)   Life Matters (Dr Tadic’s practice) - from page 191, and
(c)   Dr Tame (pain management specialist) - from page 201.
I have considered all of these records and will refer to them in more detail when directed to their relevance during the parties’ submissions.

Respondent’s evidence

The respondent has attached a factual investigation report dated 26 June 2021 to the Reply at page 1. I do not intend to give weight to the contents of the report itself unless the parties submit otherwise. The report itself analyses and summarises evidence. This is in fact my role and I will be exercising it independent of the report.
The report does however have 35 attachments, which include the applicant’s first statement, as well as statements from Romano, Johnstone, and Whereat. The applicant has made comments attached to his second statement (see paragraph 70 above) regarding the statements from Romano and Johnstone.
The statement from Romano was signed on 11 June 2021 and is found from page 63 of the Reply.
Romano confirms that the applicant’s employment duties were as a teacher of Year 11 and Year 12 PDHPE classes. From Term 4 2018, he was also appointed to the Senior Wellbeing Coordinator role, which had a “tenure until the end of 2020”. He initially reported to Johnstone, but if she was not available, he reported to Romano.
Romano confirms that the applicant was not performance managed, but he does allege that the applicant lacked initiative and “shirked his responsibilities at times”, as well as that he was aware of at least three staff members who were disappointed with the applicant’s performance in his role as Senior Wellbeing Coordinator. The applicant comments in his second statement that Romano gives no examples in this regard.
Romano then addresses the 25 incidents referred to in the applicant’s first statement.

In relation to the first incident, Romano says that he has no knowledge of the comment allegedly made by Johnstone or any complaint made by the applicant regarding it.
In relation to the second incident, Romano says that he does not recall any discussions with the applicant regarding the classes allocated to the applicant at the beginning of 2020 being changed after the applicant approached him. He did however support Whereat’s decision to allocate the applicant two Exploring Early Childhood classes at the beginning 2021, and says that he made enquiries in this regard after the applicant approached him. The applicant comments in his second statement that Romano seems confused because he only approached Romano in relation to his 2020 classes, and not his 2021 classes (in relation to which he attempted to approach Johnstone).
In relation to the third incident, Romano says that he has no knowledge of the comment allegedly made by Johnstone, but volunteers that there was “frustration from the Wellbeing team and the Executive that the Claimant shirked his responsibilities around retreats”. The applicant comments in his second statement that if Romano is referring to him being replaced by another staff member at the March 2020 Student Leaders Retreat, it was because his son was in hospital, a fact that Romano was aware of.
In relation to the fourth incident, Romano says that he has no knowledge of the incident, but volunteers that it was the applicant’s responsibility to address any “behavioural issues” of Ceccato.
In relation to the fifth incident, Romano says that he does not remember making the comment alleged by the applicant, but if he did make it, the applicant should have viewed it as a positive comment.
In relation to the sixth incident, Romano says that it was the applicant’s role “to come up with initiatives such as Self-care tips”, but in any case, he sent 15 emails in which he thanked the applicant between March 2020 and November 2020. The applicant comments in his second statement that there were not 15 emails in this regard, which he could prove if he still had access to his work email account.
In relation to the seventh incident, Romano says that the applicant was not the only staff member in relation to whom he had not sent out a congratulatory email following the birth of a child. He says that he congratulated the applicant in person, but the applicant comments in his second statement that he did not.

In relation to the eighth incident, Romano says that he declined the applicant’s offer because he “wanted to share the workload by giving other staff an opportunity” and he assumed the applicant “had enough on his plate”.
In relation to the ninth incident, Romano says that his comment was “my way of praising the Claimant” as Beanie Day had gone well, although he also rather confusingly says that he did not know if the applicant introduced Beanie Day. He says that he could not recall the applicant writing articles for the respondent’s media department.
In relation to the tenth incident, Romano says that he has no knowledge of it.
In relation to the eleventh incident, Romano says that he made the decision to relocate the Wellbeing Office for storage reasons. He also says that the applicant’s new office had an external door. The applicant comments in his second statement that the external door mentioned “would’ve required walking through the Head of Campus office”.
In relation to the twelfth incident, Romano says that he has no knowledge of it, but volunteers that the applicant did not assist Whereat in the marking of trial Higher School Certificate examination papers. The applicant comments in his second statement however that he was “attending to detention” when Whereat requested his assistance in this regard.
In relation to the thirteenth incident, Romano says that he has no knowledge of it.
In relation to the fourteenth incident, Romano says that he has no knowledge of the comment allegedly made by Johnstone, but volunteers that the applicant “was selective as to the activities he attended involving the students”.
In relation to the fifteenth incident, Romano says that the relevant lunch was for the students and was “not the forum to thank staff for their efforts”. He says that he thanked the applicant for the applicant’s efforts on other occasions, and that the applicant’s invitation to the lunch was a “form of thanks and acknowledgement”.
In relation to the sixteenth incident, Romano says that with respect to the video, it was up to “Shane to communicate with teachers in PDHPE and Peter to be involved if he choose”.
In relation to the seventeenth incident, Romano says that he “would have not deliberately not mentioned the Claimant for his achievements”, and actually thanked the applicant on other occasions verbally.
In relation to the eighteenth incident, Romano says that he had no control over the exclusions alleged by the applicant.
In relation to the nineteenth incident, Romano says that it was not a good use of staff resources for the applicant to also attend the Student Leadership Camp, as well as himself and Johnstone. He also again mentions the applicant’s failure to attend camps in the past. The applicant comments in his second statement that he has already explained that he had reasons for not attending those camps in the past.
In relation to the twentieth incident, Romano says the relevant lunch was “not about the staff”, and no staff member was recognised or introduced.
In relation to the twenty-first incident, Romano says that he had another commitment at the time of the 24 November 2020 meeting, but then claims “either the Claimants meeting did not occur, or Kathryn and Michael were at the meeting”.
In relation to the twenty-second incident, Romano says that the applicant should have been consulted regarding Wellbeing Policy changes.
In relation to the twenty-third incident, Romano says that he has no knowledge of whether Johnstone actioned the items that she was required to, but he volunteers that he had actually asked the applicant from early 2019 to create a program to improve student engagement and learning, but that the applicant had not attended to the creation of that program. He maintains that the applicant was an experienced coordinator who should have himself “assessed how things could have been done better” in relation to study periods and overuse of the library. The applicant comments in his second statement that what he and Romano discussed in 2019 was a mentoring program rather than a study skills program.
In relation to the twenty-fourth incident, Romano says:
(a)   the applicant “was not told, to my knowledge, that he was to retain the status quo”;
(b)   the interview process for the Senior Wellbeing Coordinator role involved both candidates being asked the same questions and the successful candidate being selected based “on the performance in the interview, the application and other factors, with emphasis on the interview”;
(c)   he was not being condescending when he told the applicant during the interview “We get the jist”;
(d)   the applicant’s application for the Senior Wellbeing Coordinator role was fully considered - however, Ceccato responded to the relevant interview questions more effectively and her responses “met the needs of the position and the direction of the College, moreso that the Claimant’s” - the applicant “was outperformed at interview”;
(e)   he made the comment “Thank you. However, we need to act in the best interests of the College” to both the applicant and the other interview candidate;
(f)    he did not make the comment “In my wife’s school, you would be lucky to get an interview” - the applicant comments in his second statement that he has contemporaneous written records of the comment, and
(g)   Ceccato has been an “exceptional performer” in the role of Senior Wellbeing Coordinator - the applicant comments in his second statement however that several ASC staff have commented to him about “the lack of wellbeing initiatives in 2021 and 2022 compared with my time in the role”.
In relation to the twenty-fifth incident, Romano says that Johnstone’s comment was positive and reassuring.
Romano finally says that to his knowledge, the applicant has not been at work since the end of 2020.
The statement from Johnstone was signed on 22 June 2021 and is found from page 88 of the Reply.
Johnstone says that the applicant reported to her from the commencement of 2018 to early 2020. She says:
“The claimant was supervised in the performance of his duties. The claimant was always able to approach myself and other Management to discuss issues or anything else relevant. As Senior Coordinator, it was expected that he did not require close supervision, due to his seniority – there was initiative required when I was not on site.”
She confirms that the applicant was never performance managed, and she advises that she was not aware of him having any personal issues with staff. She says that she thought she had a good working relationship with the applicant, but she also says that he was “selective as to who he mixes with” and “being a team player was not his key strength”.
Johnstone then addresses the 25 incidents referred to in the applicant’s first statement.
In relation to the first incident, Johnstone says that she remembers making the comment complained about by the applicant, but does not recall “what the topic of conversation was”. She says that the comment was not directed at anyone in particular and was not meant to be threatening. The applicant comments in his second statement that the comment was made personally to him at the close of the relevant meeting while he and Johnstone were discussing issues further.
In relation to the second incident, Johnstone says that it was not unreasonable for the applicant to be allocated Exploring Early Childhood classes, and that she invited the applicant to speak to her in relation to his concerns over his teaching allocations, “however he went on workers compensation”.
In relation to the third incident, Johnstone confirms that she spoke to the applicant questioning his commitment, after he failed to attend the relevant retreat. She says that she was disappointed that he did not attend but not angry, and does not recall speaking sarcastically. She remembers the applicant speaking about his family during the conversation, but does not otherwise recall the content of the conversation.
In relation to the fourth incident, Johnstone in effect confirms the applicant’s conversations with her about Ceccato, but says that she was not disregarding the applicant’s views.
In relation to the fifth incident, Johnstone says that she has no knowledge of it.
In relation to the sixth incident, Johnstone does not specifically comment in relation to the applicant’s complaints about lack of recognition regarding his self-care tip emails, but she does identify five emails in late 2020 in which she thanked the applicant.
In relation to the seventh incident, Johnstone does not specifically address Romano’s failure to send a congratulatory email following the birth of the applicant’s child, but she does say that she gave the applicant some children’s books and the Wellbeing Team provided him with a gift, at the time.
In relation to the eighth incident, Johnstone confirms that the applicant was not appointed to the relevant committee, but says that there were “possibly other people that would have been well suited to be on the Committee and that were not selected”.
In relation to the ninth incident, Johnstone says that she does not recall any conversation with the applicant and Romano about 2020 Beanie Day. She also says that she advised the applicant that his article for the respondent’s media department was a good article.
In relation to the tenth incident, Johnstone says that she has no knowledge of it.
In relation to the eleventh incident, Johnstone in effect confirms Romano’s position in his statement (see paragraph 120 above) regarding the office relocation.
In relation to the twelfth incident, Johnstone says that she has no knowledge of it.
In relation to the thirteenth incident, Johnstone says that she has no knowledge of it.
In relation to the fourteenth incident, Johnstone confirms that she made the comment complained about by the applicant, but that she “did not see it as a big deal” and did not intend to embarrass or belittle the applicant. The applicant comments in his second statement that the comment was “a big deal” as it was made in front of students and staff.
In relation to the fifteenth incident, Johnstone says that she does not remember Romano acknowledging any teachers during the relevant lunch.
In relation to the sixteenth incident, Johnstone says that she has no knowledge of it.
In relation to the seventeenth incident, Johnstone denies excluding the applicant from emails thanking staff, and she specifically refers to emails which she sent acknowledging various contributions made by the applicant, on 31 August 2020, 18 October 2021, and,
18 December 2021. She says that if she excluded the applicant from emails acknowledging achievements, “it would have been either accidental or not relevant to the Claimant”.
In relation to the eighteenth incident, Johnstone says that Belinda Steinerts was responsible for the relevant staff list, and she says that she cannot speak for Stace in relation to the email complained about by the applicant. The applicant comments in his second statement that Johnstone was Stace’s manager and should have ensured that the applicant was thanked in the relevant email.
In relation to the nineteenth incident, Johnstone says that there were only 16 students on the relevant camp, and therefore only two staff were required to attend it. She says that the applicant “never expressed a desire to be involved with the planning or attending the Camp”.
In relation to the twentieth incident, Johnstone says that Romano did not recognise or introduce any staff member at the relevant lunch. The purpose of the lunch was to bring the Student Leaders together for a meal.
In relation to the twenty-first incident, Johnstone says that she had another commitment at the time of the relevant meeting. She says that there were other Student Leaders Meetings that she did not attend, and that there was no requirement for any member of the Executive to attend such meetings, although there was “nearly always representation by the Executive”.
In relation to the twenty-second incident, Johnstone says that when she was approached in relation to the relevant proposed changes, “Perhaps the Claimant was not available at the time”. She also says:
“There was no change to the Wellbeing Policy. There may have been an amendment made to the procedures. It was not my intention to make staff feel overlooked.”
The applicant comments in his second statement that the relevant change implemented was later reversed, and that:
“Marc publicly criticised Kathryn’s attempt to change the wellbeing policy at a College Leadership meeting and said the proper process had not been followed.”
In relation to the twenty-third incident, Johnstone advises:
(a)   the relevant initiative was hers, not the applicant’s;
(b)   she thanked the applicant for his participation in the initiative;
(c)   she had actioned what she was required to action as part of the initiative, but “the timing of study lessons was not as straightforward as we had hoped for”, and
(d)   the applicant should not have been stressed in relation to the initiative’s failure as it was her responsibility.
The applicant comments in his second statement that:
“As Kathryn rightly claims, it was her responsibility and she unfortunately shirked it and created a chaotic environment for senior students to study and work on assessment tasks. I emailed Kathryn to discuss a resolution, but was ignored.”
In relation to the twenty-fourth incident, Johnstone says:
(a)   she was not aware that the applicant was involved in the 2019 Human Resources investigation;
(b)   there were in fact three persons interviewed for the position of Senior Wellbeing Coordinator, rather than two, as Romano seems to say;
(c)   she regarded Romano’s comment to the applicant of “We get the jist” as positive;
(d)   all three candidates for the position were advised by Romano, “Thank you. However, we need to act in the best interests of the College”;
(e)   she confirms the interview process as outlined in Romano’s statement (see paragraph 133(b) above;
(f)    she summarises:
“The Claimant was not unfairly treated. All applicants were given the same opportunity and treated equally. Same role description, application criteria, questions at interview, and comments made. The Claimant’s application was good enough to get an interview. He was outperformed at interview.”;
(g)   she was not aware of any performance issues with Ceccato, and indeed if there were issues, the applicant should have dealt with them and provide support as Ceccato’s senior leader at the time – she then says that this was “an example of the Claimant not supporting his team, or building a functioning team” - the applicant comments in his second statement that he had raised performance issues of Ceccato’s with Johnstone before (see paragraph 29 above), as well as that Ceccato and Johnstone socialised outside of work and often drove to work together – the applicant alleges that as a result, Johnstone should have disqualified herself from the interview panel for the position of Senior Wellbeing Coordinator, and
(h)   she criticises aspects of the applicant’s performance and says that she provided feedback to the applicant “expressing my concerns about the Claimant not attending retreats and other things” - the applicant comments in his second statement that Johnstone did not discuss “other things” with him and he was not sure what she meant - he says that she never raised any formal or informal concerns with him about how he could perform better.
In relation to the twenty-fifth incident, Johnstone says that she made the comment referred to by the applicant “from a wellbeing perspective”.
Johnstone finally says that she was in meetings for the entire day on 28 January 2021, and emailed the applicant on that afternoon informing him that she was happy to talk to him about his classroom allocations issues. She says however that by the time of her email, “the Claimant had taken leave earlier in the day and has not returned to work since”. The applicant comments in his second statement that he in fact attempted to consult with Johnstone twice on 29 January 2020, but she was unavailable on both occasions.
The statement from Whereat was signed on 21 June 2021 and is found from page 113 of the Reply.
Whereat confirms that the applicant reported to him in relation to the applicant’s teaching role. The applicant was supervised in the applicant’s role and always able to “approach his Supervisors to discuss issues or anything else relevant”. Whereat also confirms that the applicant was never performance managed.
Whereat then addresses the 25 incidents referred to in the applicant’s first statement, but advises that he has no knowledge of many of them.
In relation to the second incident, Whereat confirms that following the involvement of Romano, the applicant’s classroom allocations for the 2020 school year were changed. Whereat volunteers that the applicant often raised his concerns with Romano “when he does not like my decisions or responses”. In relation to the applicant’s classroom allocations for the 2021 school year, Whereat says that he received an email from the applicant on
22 December 2020 advising that the applicant was not happy with his allocations. Whereat responded and explained his reasons for the allocations, but the applicant did not approach him further.
In relation to the sixth incident, Whereat volunteers that it was part of the applicant’s role to come up with initiatives such as self-care tips, without addressing any specific knowledge of the incident.
In relation to the ninth incident, Whereat volunteers that it was part of the applicant’s role to implement wellbeing initiatives, without addressing any specific knowledge of the incident.
In relation to the eleventh incident, Whereat volunteers that the applicant “has the tendency to be inflexible to accommodate others”, without addressing any specific knowledge of the incident.
In relation to the twelfth incident, Whererat explains:
“The Claimant approached me after we selected the papers and asked why he was not chosen to view the papers. I responded by advising the process that Claudette wanted us to adopt. I did not speak to the Claimant in a hostile manner, however I was firm with him. I explained myself three times to him. He virtually called me a liar and that he did not believe me. I then said, ‘Let’s go to the source’.”
During the meeting with Stace, Whereat describes the applicant as “passive aggressive”, but considers that Stace handled the incident effectively. He concedes that he said “I find it difficult how to approach you Peter” and “I find that type of behaviour difficult”.
In relation to the thirteenth incident, Whereat says that he inadvertently made the changes to the applicant’s instructions, and later apologised to the applicant.
In relation to the sixteenth incident, Whereat concedes that the applicant was not invited to be part of the video, as he and another were personally invited by the video producer. He says that there were several staff from the PDHPE department not involved in the video.
As previously noted, as well as the statements from Romano, Johnstone, and Whereat, the respondent’s factual investigation report contains 35 attachments. Many of these attachments seem to have been provided to the investigator by the applicant. I have considered all these attachments, and will refer to them further if directed specifically to them during the parties’ submissions. I do however note that the attachments include:
(a)   an email from Caitlin Anderson dated 28 February 2020 confirming the applicant’s attendance with Dr Belcher at a meeting with Romano to discuss issues with regard to her employment - relating to the fifth incident referred to in the applicant’s first statement;
(b)   emails from the applicant to ASC staff and students, recommending self-care and mental health tips;
(c)   two emails from Romano congratulating an ASC staff member on the birth of her child;
(d)   an email from Stace to the applicant and Whereat dated 6 August 2020 (following the twelfth incident referred to in the applicant’s first statement) in which she acknowledges “some relationship issues between you both”, and encourages “moving forward as collaborative professionals” through regular communication;
(e)   various emails from Romano, Johnstone and Stace acknowledging and thanking staff - but none of which specifically mention the applicant, while mentioning other staff;
(f)    an email from Stace to the applicant dated 20 October 2020 apologising to him and advising that she will now send his name to Belinda Steinerts for inclusion on the list of staff available for student support during the 2020 Higher School Certificate - relating to the eighteenth incident referred to in the applicant’s first statement;
(g)   a note from one of the applicant’s students (Arosh) thanking him for his guidance and wisdom - which I take to be the note quoted from by the applicant at his interview for the position of 2021 Senior Wellbeing Coordinator;
(h)   an email from Austin to the applicant dated 22 October 2020 advising him of policy changes that he was not previously informed about - relating to the twenty-second incident referred to in the applicant’s first statement;
(i)    an email from Johnstone dated 21 August 2020 outlining the action items agreed to in relation to the initiative to make study periods more effective - relating to the twenty-third incident referred to in the applicant’s first statement;
(j)    an email from the applicant to Johnstone dated 30 October 2020 following her up in relation to her action items;
(k)   documentation concerning the application and interview process for the appointing of ASC’s Senior Wellbeing Coordinator for 2021;
(l)    documentation concerning an appeal lodged by the applicant when he was not appointed ASC’s Senior Wellbeing Coordinator for 2021;
(m)     an email from Jay Power (a Religious Studies teacher with ASC) to the applicant dated 13 December 2020, thanking him and praising him for his work as the school’s Senior Wellbeing Coordinator, and wondering why he was not continuing in that role;
(n)   an email from the applicant to Johnstone dated 28 January 2021 complaining about his classroom allocations and that the “content of EEC is also not pleasant for me given my wife’s difficulties with her pregnancies” - Johnstone then emailed in reply later on 28 January 2021 requesting that the applicant “please come and see me tomorrow”;
(o)   email correspondence between the applicant and Whereat regarding the applicant’s 2021 classroom allocations;
(p)   an email from Johnstone to the applicant dated 31 January 2021 in which she hopes that he is “doing ok” but advises that he is still responsible to set his lessons - the email was a response to the applicant’s email to her on that date in which he advised that he was not “doing real well at all” and was in the process of seeking medical attention;
(q)   a congratulatory email from Romano to the applicant dated 18 February 2019;
(r)   some training records of the applicant’s, and
(s)   a reference check dated 24 August 2018 in relation to the applicant, in which Romano describes him as an “excellent candidate”.

While the lack of contemporaneous records in the clinical notes from Dr Kanjithanda regarding the applicant’s psychological issues prior to August 2020 may be surprising, I have accepted his statement evidence regarding those issues occurring. I have also accepted that he has provided consistent and accurate histories regarding those issues to his treating practitioners as well as to Drs Dinnen, Anwar and Roberts, in order for them to accurately diagnose causation of his psychological symptoms. Further, I note that the occurrence of the incidents in the applicant’s statement evidence is corroborated by a significant amount of supporting documentation, as well as by most of the responses to those incidents in the statements of Romano, Johnstone and Whereat.
I find that the lack of contemporaneous records in this regard is not enough for the respondent to satisfy me that the applicant’s psychological symptoms due to the workplace incidents prior to late 2020 as described by him in his statement evidence and in the histories provided by him to Drs Dinnen, Anwar and Roberts, did not occur and did not have a psychological effect on him.
In relation to the respondent’s submission (see paragraph 203(e) above) as to the significance of the applicant not advising Dr Kanjithanda on 2 December 2020 as to his history of psychological symptoms due to factors other than his failure to obtain the position of Senior Wellbeing Coordinator, I note that the respondent failed in its submissions to deal with the applicant’s reports to the doctor in February 2021 (see paragraph 204 above) of those factors, which according to the doctor’s notes involved “multiple issues with him feeling targeted after he participated in A human resource inquiry”.
It is important to note in this regard that the applicant returned to work for the respondent after 2 December 2020, and last worked for the respondent on 29 January 2021, after failing in his attempts to meet with Johnstone to discuss his classroom allocations. These classroom allocations issues (which are not relied upon by the respondent to justify any defence pursuant to s 11A of the 1987 Act) were specifically mentioned to Dr Kanjithanda on 1 February 2021. More details regarding the applicant’s workplace stressors since the applicant’s involvement in the relevant Human Resources investigation were then provided to the doctor on 4 February 2021 and on 19 February 2021.
In these circumstances, I do not believe that the applicant’s failure to provide Dr Kanjithanda with a full history of his workplace psychological stressors on 2 December 2020 affects his credit or the veracity of his statement evidence regarding the extent of his psychological symptoms prior to his failure to obtain the position of Senior Wellbeing Coordinator. While it is apparent that when he consulted the doctor on 2 December 2020, his failure to obtain that position was the motivating factor for the consultation, he returned to work for the respondent eight days after the consultation and did not take further time off work until 29 January 2021 (when a further employment incident occurred). He only decided to make a workers compensation claim (see paragraph 60 above) in February 2021 and therefore provided the doctor with a more complete history at that time.
I do not consider the applicant’s reporting in this regard to be unreasonable. While the reporting demonstrates the significance to the applicant on 2 December 2020 of his failure to obtain the position of Senior Wellbeing Coordinator, it also demonstrates that he was cognisant of his need to provide the doctor with a more complete history of his workplace psychological stressors once he had ceased working for the respondent and once he had determined to make a workers compensation claim. As a result, I believe that the significance of the applicant’s reporting of his psychological symptoms to the doctor needs to be assessed as at February 2021, rather than solely as at 2 December 2020.
I do not therefore intend to draw the inferences from Dr Kanjithanda’s clinical notes sought by the respondent, as discussed at paragraph 237 above. I do not accept that the applicant, following his failure to obtain the position of Senior Wellbeing Coordinator, created an “ex post facto” account of his workplace psychological stressors in order to implicate stressors prior to that failure. In order to do so, I would need to be satisfied that there were substantial issues with the applicant’s credit, which I do not find to be the case.
In now considering the medical evidence presented by the parties, I have considered Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad), in which Snell DP said:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
The respondent relies upon medical evidence from Dr Roberts, as well as inferences that it seeks to draw from Dr Kanjithanda’s clinical notes (see paragraphs 203(d) and 203(e) above). I have already refused to draw those inferences.
In relation to Dr Roberts’ reports, the applicant submits that (see paragraph 214 above) his opinions are in stark contrast with the opinions of Drs Kanjithanda, Tadic, Dinnen and Anwar. He is the only doctor to opine that the applicant did not suffer an injury (but only a normative stress reaction) as a result of workplace stressors, an opinion that the respondent has actually chosen not to accept (see paragraph 14 above). He is also the only doctor to opine that the applicant has a narcissistic personality disorder. I do not accept either of these opinions as:
(a)   Dr Roberts only consulted with the applicant twice in order to arrive at his opinions;
(b)   I give significant weight to the contrary opinion of Dr Kanjithanda, who has been the applicant’s treating general practitioner since at least 20 August 2010 - although the doctor diagnoses anxiety and depression (which Dr Roberts points out is not a DSM diagnosis), he has certified the applicant as being unfit for work as a result of the anxiety and depression, which is in contrast to Dr Roberts’ opinion (see paragraph 185 above) that the applicant’s level of anxiety “would not impact upon function”;
(c)   I also give significant weight to the contrary opinion of Dr Tadic, who (as the applicant’s treating psychologist) has consulted with him many more times than Dr Roberts – the doctor diagnoses the applicant with an adjustment disorder with mixed anxiety and depression;
(d)   Drs Dinnen and Anwar also diagnose the applicant with an adjustment disorder, Dr Dinnen suggesting that the adjustment order has now progressed to a persistent depressive disorder;
(e)   in my opinion, the history obtained from the applicant by Dr Roberts is not as detailed as that obtained from the applicant by Drs Dinnen and Anwar –
Dr Dinnen had access to the applicant’s first and second statements as well as medical evidence from Drs Roberts, Tadic, Kanjithanda, Tame and Anwar (see paragraph 80 above) - Dr Anwar’s history-taking is also thorough (see paragraphs 84-88 above) - whereas I do not know exactly what documentation was provided to Dr Roberts (although it apparently only took him 50 minutes to peruse, which I would consider to be inadequate in relation to the multiple complaints made by the applicant – see paragraph 178 above), and as a result, the extent of the history recorded by him (see paragraphs 179-183) is brief;
(f)    the doctor’s recording of the applicant’s symptoms in his first report (see paragraph 184 above) is inconsistent with his recording of no chest pain (see paragraph 185 above) and no “personal, domestic, financial, relationship, sexual or other problems” (see paragraph 186 above);
(g)   in the doctor’s second report, he maintains his diagnosis of a normative stress reaction without adequately explaining the increase in the applicant’s psychological symptoms which he found (see paragraphs 192-193 above), and
(h)   Dr Roberts draws conclusions (see paragraph 195 above) largely by accepting the information in the statements of Romano, Johnstone and Whereat - however, I have already found (see paragraph 238 above) the details in these statements to be unreliable, in circumstances where those details contradict details contained within the applicant’s statement evidence.
Dr Roberts (see paragraph 189 above) provides the curious opinion that if it is “considered” that the applicant has suffered a psychiatric injury, he believes it is predominantly caused by the applicant’s failure to obtain the position of Senior Wellbeing Coordinator. The doctor provides no reasoning for this opinion, which is understandable considering that the doctor does not believe that an injury has occurred. The opinion is as a result a bare ipse dixit opinion, and I intend to give it no weight. In my opinion, the doctor’s ability to comment on the predominant cause of the applicant’s injury is severely compromised by his inability to accept that there was an injury at all.
In any case, I have already determined not to accept Dr Roberts’ opinions regarding his diagnosis of the applicant, and I intend therefore to be consistent in not accepting his speculative opinion regarding the predominant cause of an injury which he does not believe the applicant has suffered.
In relation to the medical evidence relied upon by the applicant, I note that there is no specific opinion provided regarding whether his failure to obtain the Senior Wellbeing Coordinator position was the predominant cause of his psychiatric injury. However:
(a)   Dr Kanjithanda (see paragraph 98 above) refers to various causes of the injury, including not obtaining that position, feeling targeted, and classroom allocations issues - the doctor’s certificates of capacity (see paragraph 102 above) go further and refer to “multiple [my emphasis] issues with him feeling targeted” - I do not see these comments by the doctor as supporting the respondent’s submission at paragraph 205(a) above;
(b)   Dr Tadic (see paragraphs 94-95 above) records a “list of incidents that had occurred over the last 2 years which culminated in increasing stress, anxiety, and dissatisfaction work” and opines that the main contributing factor to the applicant’s injury was “numerous [my emphasis] workplace incidents Peter described that occurred over an extended period” - she refers to the applicant’s treatment by the respondent as “culminating in the demotion” and she describes the demotion (the failure to obtain that position) as “the main incident which tipped Peter over the edge” - I do not see these comments as supporting the respondent’s submission at paragraph 205(b) above and I accept the applicant’s submission at paragraph 213 above – in the context of the doctor’s report and her emphasis on two years of numerous workplace incidents, I do not see (without further evidence from her) that her reference to the applicant being “tipped…over the edge” by his failure to obtain that position as being supportive of an argument that the failure was the predominant cause of the injury;
(c)   I accept the applicant’s submission at paragraph 215 above regarding the relevance of the history provided by him to Dr Tame - which does not mention the failure to obtain that position, but instead mentions a “very traumatic” school restructuring process, as well as bullying and harassment;
(d)   Dr Dinnen, while not differentiating between the applicant’s workplace stressors in order to opine as to the predominant cause of the injury, takes a history of “one incident after another” from April 2019 to January 2021, as well as specifically emphasising both the failure to obtain that position as well as the applicant’s failed attempts to contact Johnstone on 29 January 2021, and
(e)   Dr Anwar, while also not differentiating between the applicant’s workplace stressors in order to opine as to the predominant cause of the injury, takes a history (see paragraph 87 above) of intermittent psychological symptoms in 2018, continuing symptoms with varying degrees of intensity and frequency in 2019 and 2020, the symptoms then being “aggravated” when the applicant failed to obtain that position, and the symptoms then worsening when he attended school in early 2021.
As the medical evidence relied upon by the applicant does not specifically provide an opinion as to whether his failure to obtain the Senior Wellbeing Coordinator position was the predominant cause of his psychiatric injury, it does not assist the respondent to meet its onus of proof in establishing its defence under s 11A of the 1987 Act. The opinion of the doctors in this regard is not clear, although my analysis of their reports suggests to me that they all consider that the applicant was subjected to numerous workplace stressors during his employment with the respondent, which were causative of his injury. His failure to obtain the Senior Wellbeing Coordinator position is clearly considered to be significant by all the doctors in the causation of his injury, but so are many other factors, including the applicant’s failed attempts to contact Johnstone on 29 January 2021.
The respondent has failed to address the relevance of the applicant’s failed attempts to contact Johnstone on 29 January 2021. In circumstances where the applicant ceased working on that date and has not worked since, it seems to me that the significance of these failed attempts in the causation of the applicant’s injury was required to be addressed by the respondent. This is especially so considering the opinions of Drs Dinnen and Anwar (referred to at paragraph 254 above), as well as considering the applicant only started being treated regularly by Dr Kanjithanda for his psychological injury after 29 January 2021.
Relying upon my non-acceptance of Dr Roberts’ opinions, my acceptance of the applicant’s statement evidence, and my analysis of the medical evidence relied upon by the applicant (including Dr Kanjithanda’s clinical notes), I find that the respondent has failed to discharge its onus of proof regarding its defence to the applicant’s claim, pursuant to s 11A of the 1987 Act. In conducting the comparison required by Outram between the applicant’s failure to obtain the Senior Wellbeing Coordinator position against all the other work-related stressors described by him (which I have found occurred and caused him the symptoms described by him), I find that there is insufficient evidence for me to be actually persuaded on the balance of probabilities (as is necessary in accordance with Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10) that his failure to obtain the position was the main, principal, or predominant cause of his psychiatric injury. I also therefore find that in accordance with Hamad, the respondent has failed in its obligation to provide sufficient medical evidence to prove its purported defence pursuant to s 11A of the 1987 Act.

Whether (and if so, to what extent) the applicant has been incapacitated for work as a result of his psychological injury, since 13 September 2021

The respondent did not submit that the applicant has not been incapacitated for work as a result of his psychological injury since 13 September 2021. Indeed, the medical evidence (save for Dr Roberts’ opinion) as a whole is in agreement as to there being incapacity.
Dr Roberts’ opinion regarding the level of the applicant’s incapacity is again in stark contrast to the opinions expressed by the applicant’s treating practitioners as well as Drs Dinnen and Anwar. This is understandable considering the doctor’s view that the applicant’s workplace stressors did not lead to him suffering any psychiatric injury, but only a normative stress reaction.
In both the doctor’s reports (see paragraphs 190 and 197 above), he opines that the applicant is fit to undertake his pre-injury employment.
I have already outlined why I have not accepted the doctor’s diagnoses or opinions regarding causation, and considering the extensive medical opinions regarding the applicant’s level of incapacity which are contrary to the opinion of the doctor in this regard, I do not accept that opinion either.
In relation to the applicant’s incapacity:
(a)   Dr Dinnen (who reported on 21 September 2022) found the applicant to be then unfit for any form of employment (see paragraph 81 above) as a result of his psychiatric injury - his condition was entrenched and his prognosis was guarded;
(b)   Dr Anwar (who reported on 7 July 2022) found the applicant to then lack capacity for any work for at least the next three to six months (see paragraph 92 above) as a result of his psychiatric injury – the doctor suggested a treatment plan once he developed a return-to-work capacity;
(c)   Dr Tadic (who reported on 25 May 2022) found the applicant to then lack any capacity to return to work due to his significant insomnia, cognitive difficulties, poor concentration, significant fatigue, as well as memory issues (see paragraph 96 above);
(d)   Dr Kanjithanda (who reported on 3 August 2022) certified the applicant as unfit for work until 13 August 2022 (see paragraph 100 above), and
(e)   Dr Kanjithanda has issued certificates of capacity (see paragraph 101 above) covering the period after 13 August 2022 and up to 14 August 2023 – the certificates all certify the applicant as having no current work capacity as a result of his psychiatric injury.
The opinions of Drs Dinnen, Anwar, Tadic, and Kanjithanda are therefore in effect identical in relation to the applicant having no current work capacity around mid to late 2022. I accept those opinions.
The only medical evidence as to his work capacity since then (save for Dr Roberts’ opinion) is Dr Kanjithanda’s certificates of capacity, which I also accept. Although Dr Anwar hoped that the applicant might develop a return-to-work capacity around the end of 2022, there is no evidence that this has occurred.
The applicant says in his third statement (see paragraph 71 above) that as at 28 June 2023, he had no capacity for work and that his psychological treatment and psychological symptoms had not changed significantly, since his second statement dated
1 September 2022. I accept this evidence, and having regard to it, as well as Dr Dinnen’s opinion regarding the entrenched nature of the applicant’s condition, as well as
Dr Kanjithanda’s certificates of capacity, I accept that the applicant’s lack of any current work capacity has continued from mid to late 2022, until at least 28 July 2023.
The applicant is therefore entitled to weekly benefits compensation after 13 September 2021, on the basis of having no current work capacity (at least until 28 July 2023).
Section 37 of the 1987 Act is relevant in this regard, and it provides as follows:
“(1) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled during the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.”

It is apparent however that the applicant will only be entitled to compensation pursuant to
s 37(1) of the 1987 Act until his second entitlement period, as defined in s 32A of the 1987 Act, expires. I have not been advised by the parties as to this date, but assume it would be 28 July 2023 (being the date 130 weeks after the last date when the applicant worked on
29 January 2021).
The applicant’s PIAWE has been agreed between the parties at $2,595.50 (see paragraph 17 above). He is therefore entitled to receive $2,076.40 per week (as adjusted from time to time for relevant PIAWE variations pursuant to s 82A of the 1987 Act) from
13 September 2021 to 28 July 2023 in accordance with s 37(1) of the 1987 Act.

I will grant the parties leave to apply to me within 28 days of my decision should my calculation regarding the applicant’s second entitlement period be incorrect.
The applicant may be entitled to be paid weekly benefits compensation pursuant to s 38 of the 1987 Act for periods from 29 July 2023.
Section 38 of the 1987 Act in this regard reads as follows:
“(1) A worker's entitlement to compensation in the form of weekly payments under this Part ceases on the expiry of the second entitlement period unless the worker is entitled to compensation after the second entitlement period under this section.
(2) A worker who is assessed by the insurer as having no current work capacity and likely to continue indefinitely to have no current work capacity is entitled to compensation after the second entitlement period.
(3) A worker (other than a worker with high needs) who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if--
(a) the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period, and
(b) the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings (or current weekly earnings together with a deductible amount) of at least $155 per week, and
(c) the worker is assessed by the insurer as being, and as likely to continue indefinitely to be, incapable of undertaking further additional employment or work that would increase the worker's current weekly earnings.
(3A) A worker with high needs who is assessed by the insurer as having current work capacity is entitled to compensation after the second entitlement period only if the worker has applied to the insurer in writing (in the form approved by the Authority) no earlier than 52 weeks before the end of the second entitlement period for continuation of weekly payments after the second entitlement period.
(4) An insurer must, for the purpose of assessing an injured worker's entitlement to weekly payments of compensation after the expiry of the second entitlement period, ensure that a work capacity assessment of the worker is conducted--
(a) during the last 52 weeks of the second entitlement period, and
(b) thereafter at least once every 2 years.
Note : An insurer can conduct a work capacity assessment of a worker at any time. The Workers Compensation Guidelines can also require a work capacity assessment to be conducted.
(5) An insurer is not to conduct a work capacity assessment of a worker with highest needs unless the insurer thinks it appropriate to do so and the worker requests it. An insurer can make a work capacity decision about a worker with highest needs without conducting a work capacity assessment.
(6) The weekly payment of compensation to which an injured worker who has no current work capacity is entitled under this section after the second entitlement period is to be at the rate of 80% of the worker's pre-injury average weekly earnings.
(7) The weekly payment of compensation to which an injured worker who has current work capacity is entitled under this section after the second entitlement period is to be at the lesser of the following rates--
(a) 80% of the worker's pre-injury average weekly earnings, less the worker's current weekly earnings,
(b) the maximum weekly compensation amount, less the worker's current weekly earnings.
(8) A worker's entitlement to compensation under this section may be reassessed at any time.”
I do not however consider myself to currently have jurisdiction to make any award in favour of the applicant in accordance with s 38 of the 1987 Act.
The applicant is yet to be assessed (by a Medical Assessor of the Commission’s) to establish whether he is either a ‘worker with high needs’ or a ‘worker with highest needs’, in order to potentially entitle him to compensation in accordance with s 38 of the 1987 Act. Further, the respondent’s insurer has not made the assessment of work capacity referred to in the section. As was determined by Parker ADP in Ferro v Mercon Group Pty Limited [2023] NSWPICPD 4 (Ferro):
“Furthermore, the Member has no authority to make findings with respect to current work capacity for the purpose of s 38 of the 1987 Act. Section 38 requires the insurer to make a work capacity assessment. Therefore the Member’s function in the event of a contest is to determine whether the insurer has made an assessment and what is the assessment.”
The Acting Deputy President in Ferro then summarises four steps to be used by the Commission when dealing with claims pursuant to s 38 of the 1987 Act. Those steps are:
“(a) Make findings and provide reasons as to whether the insurer had made an assessment of the appellant’s current work capacity.
(b) If so, determine what assessment the insurer had made for the purpose of s 38(2) and (3) of the 1987 Act.
(c) If s 38(2) applied, make findings as to whether the insurer had concluded that the worker was likely to indefinitely have no current work capacity.
(d) If s 38(3) applied, make factual findings with respect to s 38(3)(a) to (c).”
The respondent’s insurer has not made any assessment of the applicant’s current work capacity. Indeed, in its submissions (see paragraph 208 above), the respondent did not specifically dispute the extent of the applicant’s work capacity, but rather submitted that the determination in this regard should await a Medical Assessment by the Commission. It has not taken any position regarding the extent of the applicant’s work capacity, presumably because it has not assessed that work capacity and has only itself obtained medical evidence from Dr Roberts (which rightly it has not used in order to assess the applicant’s work capacity, considering that it now does not accept the doctor’s opinion that the applicant did not suffer a psychiatric injury as a result of workplace stressors).
The only evidence before me of decisions or assessments made by the insurer in the applicant’s claim are its two notices pursuant to s 78 of the 1998 Act, dated 26 August 2021 (at page 150 of the ARD) and 5 April 2023 (at page 158 of the ARD). Neither of these notices specifically assess the applicant’s work capacity, as they concentrate on liability issues regarding whether the applicant had suffered a psychiatric injury, and if so, whether the respondent had a defence to the applicant’s claim with respect to that injury pursuant to
s 11A of the 1987 Act.
In the circumstances, I do not intend to accede to the respondent’s submission to only determine the applicant’s work capacity following a Medical Assessment by the Commission, in relation to that capacity prior to 28 July 2023. In my opinion, as I have found above that I have sufficient medical evidence to determine the level of the applicant’s capacity for work during that period, there is no proper reason why I should not do so now. In this regard, the applicant has been without weekly benefits compensation since 13 September 2021, and has been clearly financially disadvantaged as such.
However, a determination of the applicant’s work capacity from 29 July 2023, and a consequent determination as to his potential entitlement to weekly benefits compensation after that date in accordance with s 38 of the 1987 Act, must await in my opinion at least an assessment of current work capacity by the respondent’s insurer, as well as potentially a Medical Assessment by the Commission.
Considering my rejection of the respondent’s defence pursuant to s 11A of the 1987 Act, the applicant’s claim pursuant to s 66 of the 1987 Act needs to be referred to Medical Assessment by the Commission in any case, in accordance with the agreement of the parties (see paragraph 15 above).
I therefore consider it to be appropriate to list this dispute for a further preliminary conference before me following the relevant Medical Assessment, in order to not only finalise the claim pursuant to s 66 of the 1987 Act, but to also ascertain as to whether any claim by the applicant pursuant to s 38 of the 1987 Act is then able to be proceeded with. If not, there will be no award made in relation to the applicant’s claim for weekly benefits compensation from 29 July 2023.

SUMMARY

I find that as a result of events occurring in the course of the applicant’s employment with the respondent, he has sustained a psychological injury pursuant to s 4(b)(i) of the 1987 Act. His employment with the respondent is the main contributing factor to that injury.
I find that pursuant to s 15(1)(a)(i) of the 1987 Act, the applicant’s psychological injury will be deemed to have happened on 29 January 2021, being his first date of incapacity and the last date when he worked with the respondent.
I find that the respondent has failed to establish (pursuant to s 11A of the 1987 Act) that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by it with respect to promotion, demotion, transfer, or the provision of employment benefits.
I find that the applicant has been incapacitated for work as a result of the psychological injury since 29 January 2021, until at least 28 July 2023.
I find that the applicant’s PIAWE is $2,595.50.
I find that between 13 September 2021 and 28 July 2023, the applicant had no current work capacity.
I find that the applicant is entitled to an award pursuant to s 37(1) of the 1987 Act at the rate of $2,076.40 per week (as adjusted from time to time for relevant PIAWE variations pursuant to s 82A of the 1987 Act) during the period from 13 September 2021 to 28 July 2023.
I grant leave to either party to approach the Commission prior to 7 February 2024, in order to apply for an amendment to the period during which the applicant is to receive his award pursuant to s 37(1) of the 1987 Act.

I find that I do not currently have jurisdiction to make any award in favour of the applicant pursuant to s 38 of the 1987 Act, regarding his claim for weekly benefits compensation from 29 July 2023.
I find (in accordance with the agreement between the parties referred to at paragraph 15 above) that the applicant is entitled to have his reasonably necessary treatment expenses in relation to his psychological injury paid by the respondent, pursuant to s 60 of the 1987 Act. There will be an award in his favour in this regard.
In accordance with the agreement between the parties (see paragraph 15 above), the applicant’s claim for compensation pursuant to s 66 of the 1987 Act is remitted to the President for referral to Medical Assessment.
The Medical Assessor will be directed to assess the level of the applicant’s whole person impairment arising from his psychological injury. The Medical Assessor will be sent this Certificate of Determination, as well as the documentary evidence referred to at paragraph 19 above.
The Medical Assessor will be advised that the deemed date of the applicant’s injury for the purpose of his claim pursuant to s 66 of the 1987 Act is 16 November 2022, that being the date when the formal claim for compensation in this regard was sent by the applicant’s solicitors to the respondent’s insurer (see paragraph 6 above). This deemed date of injury is different from the deemed date of injury referred to at paragraph 283 above, due to the effect of s 15(4) of the 1987 Act, which treats the applicant’s permanent impairment as an injury by itself. As the applicant could not be incapacitated by his permanent impairment prior to it being assessed and claimed, s 15(1)(a)(ii) of the 1987 Act applies to deem the date of his ‘impairment’ injury as the date of his formal claim for his permanent impairment. The position in this regard is well-established – see particularly Stone v Stannard Bros Launch Services Pty Limited [2004] NSWCA 277, Alto Ford Pty Limited v Antaw [1999] NSWCA 234, and GIO Workers Compensation (NSW) Limited v GIO General Limited (1995) 12 NSWCCR 187.
Following the completion of the Medical Assessment process, the dispute will be listed before me again for a preliminary conference in order to deal with any issues still requiring determination.

[2024] NSWPIC 17

11 January 2024