Van Vliet v Landscape Enterprises Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPIC 14
APPLICANT:	Markus Van Vliet
RESPONDENT:	Landscape Enterprises Pty Ltd
MEMBER:	Paul Sweeney
DATE OF DECISION:	10 January 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly payments and permanent impairment compensation by a worker with an accepted psychiatric injury; dispute as to whether applicant’s injury was wholly or predominantly caused by his dismissal, and, if so, whether the respondent’s actions with respect to dismissal were reasonable within section 11A(1) of the Workers Compensation Act 1987; finding that worker’s evidence not reliable; employer’s lay evidence preferred; discussion of what constitutes “reasonable action” in the case of a small employer; BlueScope Steel Ltd v Markovski considered; Held - in all the circumstances employer’s conduct was reasonable; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent

STATEMENT OF REASONS

INTRODUCTION

Markus Van Vliet (the applicant) commenced employment with Landscape Enterprises Pty Ltd (the respondent) as a landscape gardener in 2018. Shortly after the commencement of his employment, he was appointed as a team leader responsible for the gardening/ landscaping at a number of commercial and industrial sites in Sydney.
On 31 January 2020, the applicant was required to attend a meeting with Paul Quinn, the proprietor of the respondent company. During the meeting his employment was terminated by Mr Quinn.
The applicant has not returned to work since that time. It is common ground that he has developed a psychological condition which precludes him from engaging in employment.
The applicant alleges that his psychological condition was caused by bullying and harassment and by exposure to unsafe work practices in the course of his employment.
The respondent concedes that the applicant suffered a psychological injury as a result of his dismissal on 31 January 2020 but denies that any other aspect of his employment caused or materially contributed to the development of a psychiatric illness. The applicant’s dismissal was reasonable action within s11A(1) of the Workers Compensation Act 1987 (1987 Act).
The respondent also concedes that the applicant is incapacitated for his pre-injury employment but argues that he has a residual capacity to perform selected employment at reduced hours.

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claims weekly payments of compensation from the date of the termination of his employment and permanent impairment compensation in respect of a psychological injury pursuant to s 66 of the 1987 Act.
When the matter came on for conciliation and arbitration in the Commission on 4 November 2021 Mr Tanner of counsel represented the applicant and Mr Gaitanis of counsel represented the respondent. The matter was heard audio visually. Following a brief conciliation, I was informed by counsel that the parties were unable to reach a mutually satisfactory resolution of the threshold issue of the applicant’s entitlement to compensation. I have used my best endeavours to bring the parties to an agreement and I am satisfied that they had ample opportunity to consider settlement before and at the conciliation conference.
Two interlocutory matters arose at the commencement of the arbitration hearing. First, the respondent sought to tender the clinical notes of the applicant’s treating general practitioner, Dr Melito. These notes had been produced to the Commission pursuant to a Direction for Production that I made at the telephone conference in the matter. They had been available to the parties for some time on the electronic portal. However, the respondent’s solicitor had failed to lodge or serve the documents pursuant to the Commission’s Rules.
There was no doubt that the documents were relevant to the issues in dispute between the parties. As there was no prejudice to the worker that could not be cured by a supplementary statement, I ruled that the documents should be received in evidence subject to the applicant’s right to tender explanatory evidence in response.
The second issue arose from a review notice issued by the respondent’s insurer on 8 July 2021. Mr Tanner argued that the notice constituted a withdrawal of the denial of injury. Injury was no longer in dispute. Mr Gaitanis argued that the notice merely conceded that the applicant suffered a psychological injury as a result of his dismissal on 31 January 2020 and not otherwise. After reviewing the evidence, I ruled that the notice of 8 July 2021 admitted injury as a result of the respondent’s termination of the applicant’s employment but not otherwise. Thus, the respondent was entitled to conduct a defence of the claim on the basis that the applicant had not suffered a psychological injury other than the injury arising from the termination of his employment.
Unfortunately, the interlocutory matters occupied a large part of the time allocated for the arbitration hearing. At the conclusion of the time available, Mr Gaitanis had not completed his submissions. Accordingly, the matter was stood over for further hearing as a telephone conference on 7 December 2021. At that time, Mr Gaitanis completed his submissions, Mr Tanner argued the applicant’s case and Mr Gaitanis made submissions in reply.

EVIDENCE

The evidence before the Commission is as follows:
(a)    the Application to Resolve a Dispute (the Application) and the documents attached;
(b)    the Reply and the documents attached, and
(c)    Applications to Admit Late Documents bearing dates 18 October 2021, 29 October 2021, 4 November 2021 and 5 November 2021 and the documents attached to each.
Other than the objection to the clinical notes of Dr Melito there was no other objection to the material referred to above and no application to adduce further evidence.

SUBMISSIONS

The submissions of the parties are recorded or in writing and I do not propose to reiterate each argument put by counsel in these short reasons.
Briefly, however, Mr Gaitanis submitted that aspects of the applicant’s evidence, in particular the histories that had been recorded by several psychiatrists, were untrue. He submitted there was a significant issue as to the accuracy and reliability of the applicant’s evidence. Thus, the applicant’s medical case was founded on erroneous assumptions of fact. He submitted that the evidence did not establish psychological injury other than that which the respondent conceded on 31 January 2020. That was a dismissal as that word is used in s 11A(1) of the 1987 Act. As the dismissal was reasonable, in the circumstances of the case, the operation of the section extinguished any liability on the part of the respondent to pay compensation to the applicant.
Mr Tanner submitted that the entirety of the evidence, including the reports of Dr Bisht, the respondent’s qualified psychiatrist, established that the applicant’s dismissal was not the whole or predominant cause of the applicant’s psychological injury. The respondent had also failed to establish that its conduct in dismissing the applicant was reasonable. In summarily dismissing him without warning on 31 January 2020, the respondent had not provided procedural fairness to the applicant. As the applicant had not been subjected to earlier disciplinary proceedings, the penalty of dismissal was oppressive and unreasonable.
Mr Tanner referred in his argument to the information provided to employers by the Fair Work Ombudsman in respect of managing performance of employees. He also referred at length to the reasoning of Deputy President Roche in Bluescope Steel v Markovski [2013] NSWWCCPD 69 (17 December 2013) (Markovski).
It will be necessary to return to these submissions in determining the issues in dispute. It is first necessary, however, to record the applicant’s evidence and the evidence of the respondent’s lay witnesses relevant to the issues in dispute. What follows is not a comprehensive survey of the evidence. Rather I set out the salient parts of the written evidence so that the parties can understand the way in which the Commission has resolved the dispute.

The applicant

The applicant’s evidence is to be found in written statements of 3 March 2020 and 1 August 2021. By his initial statement the applicant sets out his employment history. He commenced employment with the respondent in November 2018. He was made a full-time employee in early 2019. He says that:
“I did not receive any induction or any training for my employment with Landscape Enterprises. I was basically taken out to the job sites with others and left to figure things out. I have never seen any safe work method statements relating to any of the equipment that we use, nor have I ever seen any risk assessments for any of the work that we undertake. I am unaware of the company having any policies relating to workplace bullying and harassment.”
The applicant says he worked at several large industrial sites where there would be a team leader and one or two other employees, however there might occasionally be a greater number depending on the size of the site.
The applicant recounts an incident “just before Christmas 2018” when he saw Paul Quinn about to change blades on one of the ride-on mowers which was sitting on four jacks raised about 50cm off the ground. He expressed interest in performing the task. He was given some instruction and slid on the concrete under the mower. He states:
“As I began unscrewing the blades, one of the jacks must have moved, causing the mower to topple and wedge me underneath. I called out to Paul, but unbeknownst to me he had walked away. I continued calling out, as I was pinned under the mower and unable to extricate myself. Luckily, a site foreman Grant Kells was nearby and heard my cries for help. Grant held up the mower stabilising it and continued to call out. Les Frost came over to assist and grabbed my ankles and dragged me out.”
The applicant says that he was quite shaken after this incident but did not sustain any physical injuries. He suggested to Mr Kells that he should submit an accident report form but was told that he did not need to do so as he was not injured. He did not want to jeopardise his newfound employment after 2½ years without work, and decided against lodging an accident notification form. He said that at that time he became “concerned” regarding the management of the business.
The applicant then addresses what he describes as a lack of concern for work health and safety in the company. He says that when he raised issues regarding faulty equipment nothing was done. He says that he was required to drive trailers that had faulty lights and brakes which would not work, they were provided with cheap masks which did not do a proper job. Employees were often driving overweight vehicles, vehicles without clutches, non-working taillights and no indicators on trailers.
The applicant says that Mr Quinn ran the company “through fear and intimidation”. He used to “brag about sacking people” and would say to employees “I’ve got you in my sights”. He says that when he “spoke up he would threaten to tear up my employment contract”.
The applicant recounts that Mr Quinn would turn up on sites unannounced and would “isolate you and threaten and place himself in a position where something was behind you”. Conversely, he did not raise any “performance issues” with the applicant, other than that he said that “I could be a bit gruff with my co-workers”. Otherwise, he asserts that “Paul told me that I was one of his best workers and that he could not fault me”.
In 2019, the applicant became a team leader. His salary was increased by payment of a three monthly bonus of $1,800, provided the sites for which he was responsible were managed adequately. He states that there was not a quarter in which his bonus was not paid.
The applicant then recounts that on 30 January 2020, he was working at a Stockland site known as Coopers Paddock where Daikin Air Conditioning operated four large warehouses. The only other member of his team on that day was Phillip Woolf. The applicant recounts that as it was an extremely hot day they worked through the morning and at 1.15pm entered the lunchroom on site. Shortly after commencing their lunch the landscapers were confronted by a woman who enquired as to who gave them permission to enter the lunchroom. After a brief exchange the woman stated that she would make a telephone call to Chris Lou who “managed the site for Stockland”.
After a brief interlude, the woman re-entered the lunchroom and “without saying anything shoved the phone in my face in an intimidating manner across the table”. The applicant says that he then had a discussion with Mr Lou to whom he said:
“This racist bitch is yelling at me in an aggressive manner, acting like some sort of policewoman.”
He explained to Mr Lou that they were having lunch in the lunchroom and that he “didn’t know who this woman was”.
The applicant says that he finished his lunch in the presence of the woman but before he could leave the room he was rung by Mr Quinn who told him that they should “pack up everything and head back to the yard”. On arrival at the yard, Mr Quinn was irate. He apparently believed that police were called to the site. Mr Quinn accused him of swearing at the lady who confronted him in the lunchroom to which he responded that he “did not swear at her”. He continues:
“I told him I was being assertive not aggressive and that I would not be bullied by the woman who did not even have the decency to identify herself.”
The applicant says that he told Mr Quinn that he wanted to lodge a bullying and harassment claim against this woman but was told that if he wanted to lodge a complaint “I would have to do that with Daikin”. He was told not to use the facility again despite his protests that the only other facility available was a truckie’s toilet which the applicant said had privacy and hygiene issues. He was told that Mr Quinn and Mr Kells were meeting with the Stockland representatives the following morning and that they would be “updated” after the meeting
On 31 January 2020, Mr Kells provided the applicant with an incident report which he was asked to complete. Subsequently, there was some discussion as to when the report should be completed. The applicant stated that he would provide the report by the following Monday. Mr Kells, however stated that Daikin wanted it by the end of the day and he should do it immediately. The applicant said that he responded:
“I don’t give a fuck what Daikin want, you’ll get it on Monday”.
On arrival back at the yard that afternoon, Mr Quinn told the applicant that he wanted to see him and enquired if he wanted to have a witness at the meeting which the applicant declined. He then recounts that:
“Grant was also present. Paul started by saying that all the versions of those present the day before seemed to match. I assumed that he had spoken to the woman, so I asked him if he had told Daikin that I wanted to lodge a complaint about the woman’s behaviour. Paul said that he had not, and again, accused me of being the aggressor. Grant during this added, she is the warehouse manager of 2A. As he said this, he was raising his voice and he was now becoming very aggressive towards me.
I told Paul that at no point was I aggressive and that I was just standing up to her. He became angrier with me, constantly raising his voice and talking over the top of me. At one point he said to me ‘don’t you tell me how to run my business. You’re fired’. He then leaned forward in his chair and said something like ‘get your gear out of the ute and leave the yard’.”
The applicant says that he was upset when he returned home and immediately started drinking. He said that he was not sleeping, he became very nervous and was having nightmares and “my heart was racing”. He says that before seeing a doctor he attended the offices of Turner Freeman where he conferred with his present solicitor. He continues:
“With respect to recovery, I didn’t feel I was getting any better psychologically. I heard of Dr Eric Lim at Workers Doctors in Parramatta who specialises in workplace injuries and decided to start seeing him. I was also referred to a Psychologist in the same complex at the time.”
The applicant says that during his employment he had become withdrawn, disengaged with his friends, experienced migraines and felt “completely exhausted both mentally and physically”. He says that:
“Every morning when going to work I would tell my partner that I didn’t want to go and I dreaded going. I could not talk about my work with my partner unless I had been drinking. My drinking increased while I was working at Landscape Enterprises. Despite having stopped working, I continued to have nightmares, difficulty sleeping, feel lethargic, anxious and depressed. I continued to have treatment.”
By his supplementary statement, the applicant reiterates some of the circumstances described in his earlier statement. He reiterates the circumstances of the incident involving the ride-on mower in late 2018. He also refers to the lack of an equipment maintenance programs and that employees of the respondent had to contend with faulty equipment. He says that the turnover rate was “very high in terms of Paul firing people or people quitting”. He says that Mr Quinn was constantly “passive/aggressive with employees”.
The applicant also gives his version of the two meetings with his employer prior to his dismissal. He states that on going through the events of 20 January 2020, Paul stated that he had sworn at the woman who entered the lunchroom. He denied this. He states:
“I was being targeted and berated by this woman who was being unfair and aggressive towards me.”
During the meeting on 31 January 2020 the applicant again told Paul that he was “never aggressive” towards the woman at the lunchroom. He was fired on the spot. He continues:
“I feel that I was subjected to various bullying, targeting, and harassment during my employment. Although the lawn mower incident did start my psychiatric symptoms as I felt constantly unsafe afterwards, I was further subject to various bullying and harassment which led to my deterioration of my psychological state.
My boss constantly intimidated me, was aggressive towards me, berated and belittled me. I felt constantly targeted whilst working there. I was constantly put down as a troublemaker because I was concerned about my safety as well as others.
I was not trained at all, and I was made to feel that I should just know everything without proper training which puts my safety at risk.
The incident with the lady also escalated my psychiatric deterioration as I felt further targeted and was not supported by my boss. I was then fired because I stood up for myself after being harassed by her.”
The applicant then recounts his present symptoms which includes lack of sleep, nightmares and inability to associate with other people. He adds that he has received prank calls relating to landscaping work “and being run over by mowers after leaving my employment”. He says that he has changed his phone number.

Paul Quinn

Mr Quinn’s evidence is contained in a signed statement dated 10 March 2020. Mr Quinn is the owner and manager of Landscape Enterprises. He confirms that the business has eight full-time employees. He confirms that the applicant commenced work in November 2018 on a trial basis. He concedes that the respondent did not have a formal Safe Work Method Statement/s but says that “we would always show a new employee how to safely use any of the equipment they were expected to use.”
Mr Quinn states that the applicant was a “good, hard and enthusiastic worker”. However, he was argumentative and “put a lot of his fellow workers offside”. He was also aware that in March or April 2019, the applicant had been arrested at Parramatta Stadium after a football match but made no enquiries of him about the incident.

Contrary to the applicant’s evidence, Mr Quinn states that there were regular toolbox meetings and equipment and machinery was maintained to a high standard and repaired as soon as a fault or problem becomes apparent. He also states that there was not a high turnover of staff with permanent employees, although employees retained on a casual basis may be let go during their work trial.
Mr Quinn confirms the applicant’s evidence that he was appointed a team leader in the first half of 2019 with view to turning around the performance of the respondent at a nursing home at Pendle Hill. He states that the applicant succeeded in this task and was confirmed as a team leader. He was paid a bonus of $1,800 per quarter and also provided with a company vehicle.
Before payment of the first quarterly bonus, Mr Quinn says he spoke to the applicant in respect of the way he “treated his team”. He told him that “the guys would not respond to him if he abused them”. He says that the applicant “seemed to take it on board”.
Subsequently Mr Quinn says that he spoke to the applicant again about his interaction with other employees in the second half of the year and also stated that he knew that Grant Kells, the foreman “had frequent chats to Markus about the same thing”. Mr Quinn records that the applicant forwarded an offensive text message to a fellow employee Ben H. He sets out in his statement an abridged, censored version of the SMS. Mr Quinn had a meeting with the applicant following that incident at which he “told him in no uncertain way that his behaviour was unacceptable”. He did not, however, issue him with a formal warning.
Mr Quinn then describes his version of the events of 30 January 2020. He says he received a call from Chris Lou, who is the site manager for the Stockland property known as Coopers Paddock. He was told that there had been an altercation between one of the crew and on site personnel and the police had been called. He rang the applicant following this call and told him to immediately pack up and head back to the yard. He asked the applicant to give his version of events. In particular he asked him why he didn’t leave the lunchroom when he was asked. According to Mr Quinn, he replied “I always go up against people like that”.
Mr Quinn emphasised in his discussion with the applicant that the woman was a client and “regardless of what she said, or the way she said it, the client is always right.” He told the applicant that he and Mr Kells were having a meeting at the site with Chris Lou and the lady at 9am the next day “and I would update Markus and Phil (Woolf) after the meeting”.
At that meeting, Mr Quinn recounts it was established that the Daikin employee who asked the landscapers to leave the lunchroom was “Fia”. She said there had been prior complaints about the landscapers going through cupboards and drawers in the lunchroom and “she was not comfortable with them being there”. Nonetheless she permitted them to eat their lunch and then asked them to leave. She alleged that the applicant called her “a fuckin bitch”. While Woolf got up and left the applicant remained in the lunchroom another half hour. Mr Quinn recorded that Fia “said that she felt very threatened by his aggressive behaviour, and said she would feel very uneasy if Markus was allowed to return to that site”.
It was agreed with Chris Lou at the meeting that the applicant should not return to the site. The statement continues:
“Grant and I discussed the situation at length, and made the decision that Markus’ conduct warranted his dismissal. It was not just the incident with Fia, we had been getting so many complaints from almost all the staff that we could no longer tolerate his behaviour.
When Markus arrived from site that afternoon, sometime around 2pm, we called him into the office. I asked Grant to run the meeting, and at that meeting’s conclusion I would tell Markus I had made the decision to terminate his employment.
Just after the meeting started, Markus asked if we had got the grievance form that he requested. I asked him what he meant, and he looked at me and said something like ’you should know what I mean, your wife’s in HR and said that he wanted to lodge grievance against Stockland about Fia’s treatment of him. I said that my wife was not in HR, and that my daughter is studying HR. Markus then raised his voice and yelled at me ‘stop interrupting me, just sit there and shut up’.
I got very angry at this point. I pointed at Markus and said something like ‘that’s it you’re fired, get your stuff out of your ute and get off the premises’. Markus then left the meeting, unpacked his gear from the ute and sat on the grass. I concede I probably could have handled things differently, but I was not going to let Markus talk to me like that.”
Mr Quinn denies that he was present at the time of the tractor incident in late 2019. He says that he never acted in an intimidatory fashion towards his employees; and that he never threatened to tear up contracts as “it was not something that he was allowed to say”, nor is it the type of thing that he would say. He says that the applicant only remained with the respondent as long as he did because of his “good nature”.

Grant Kells

Mr Kells is the foreman of the respondent’s operation performing rostering/scheduling and the servicing and hiring of equipment required by the business. He also performs some routine maintenance work on the equipment and vehicles. He states that as soon as a problem is identified he arranges for it to be rectified by doing it himself or sending it to an authorised repairer.
He denies that he has ever heard Mr Quinn threatening or bullying employees and says that he has not received complaints from any employee in regard to Mr Quinn’s conduct. He describes the respondent’s work health and safety regime as very good. He says that there are regular toolbox meetings where WH&S issues can be raised and “they are always addressed”.
Mr Kells records that the applicant told him about the incident with the ride-on mower approximately a week after it occurred. He told him that “Les had to help him out from underneath the mower”. He says that the applicant did not say anything to him about wishing to submit an incident report. “In any case if he wished to, he could have completed one himself as they are readily available in the office for anyone”.
Mr Kells states that shortly after the applicant’s promotion to team leader there were complaints from other workers, Ben H and Angie, who said that she “felt threatened by him”. He states that he was told by workers that the applicant “treated them like shit” which made them reluctant to work on his team.
In respect of the meeting, at Coopers Paddock on 31 January 2020, Mr Kells records that Fia’s version of events was similar to the applicant’s:
“However she said that Markus was extremely rude and aggressive, calling her variously a ‘fucking bitch’ and a ‘fucking policeman’. She was clearly upset by what had happened and requested that Markus not be allowed on site again.”
Mr Kells states that over the course of the day it was decided that the applicant’s history of aggression and disrespect towards fellow workers together with his conduct the day before was “enough to warrant the termination of his employment”. They decided that they would meeting that afternoon and inform him that he was dismissed. It was also decided that there was no need to discipline Mr Woolf.
Mr Kells then describes the meeting at which the applicant was dismissed in similar terms to the account of Mr Quinn but in more detail. He records that the applicant was persistent in his assertion that he was the “one being bullied and harassed”. He enquired about the grievance form with Stockland. When asked he said that he would complete the grievance form over the weekend. He continues:
“Paul then began to talk, at which point Markus said ‘don’t you talk when I’m talking I haven’t finished yet’. Paul then said ‘you know what, you’re fired. Leave the keys to the ute downstairs’. The entire meeting lasted less than 10 minutes.”

Phillip Woolf

Mr Woolf describes his training on the job and the insured’s maintenance of vehicles and equipment which he describes as “up to industry standard”. He says that issues with equipment were “generally resolved in a timely manner”. He also says that there were regular toolbox meetings where workers had the opportunity to raise any concerns or management could raise issues with workers.
Mr Woolf states that while he got on well with the applicant many of his colleagues “had no time for Markus and some had even refused to work with him”. He says that he spoke with Mr Kells and Mr Quinn on two occasions when he became concerned about the way in which the applicant spoke to co-workers.
Mr Woolf also describes the encounter with Fia on 20 January. After she enquired as to why they were present in the lunchroom, Mr Woolf told her that “as soon as we were finished our lunch we would get back to work”. At that stage the applicant “muttered … something about her thinking she was a cop”. After they had finished lunch, Fia, who had remained in the room, approached again and suggested that it was appropriate that they leave.
“As she walked away, Markus said something derogatory to her, which I felt was quite unnecessary and completely unwarranted. The lady then became upset and immediately said she was going to call Chris Lou, who was the site manager for Stockland. At that point seeing the situation was out of hand, I told Markus I was going back to work and got up and left the room.”
Mr Wolff says that the lady was not behaving in an “aggressive or unreasonable manner” and that the applicant’s reaction was “completely out of proportion”. It was another half hour before Markus finally emerged from the lunchroom. He advised Mr Wolff that Mr Quinn had determined that they return to Wetherill Park.
Mr Wolff recounts that Mr Kells and Mr Quinn were concerned at what happened but they wished to obtain the workers’ version of events. At the conclusion of the meeting the workers were told that Mr Kells and Mr Quinn would be having a meeting with “the Stockland’s people” the next day and they would “update us” as to the result of the meeting.
Mr Wolff says that he has never seen Mr Quinn act in a disrespectful or bullying manner to any of the workers. He continues:
“He has had occasions to speak to me about my sick leave, but he never threatened to sack me or tear up my contract. I have never heard him say to anybody ‘you are a good worker but a shit employee’.”

Leslie Frost

Mr Frost is a landscape gardener, who has been employed by the respondent since 2017. He said that he had no concerns about work health and safety at the insured. He believed that the equipment used was well maintained and at no time had he experienced concerns about the “equipment we use or the vehicles we drive”. In respect of Mr Quinn he states:
“I get along well with Paul Quinn, the insured’s owner, and find him to be a good, fair boss. I have never observed Paul behave in a bullying or disrespectful way towards anybody.”
Mr Frost states that the applicant had no respect for other people “as if he could say what he wanted anytime he wanted”. He recalls that he called a female employee a “fuckin slut” on one occasion. He also describes the incident in December 2018 in which he dragged the applicant out from underneath the mower at which point he said that the applicant thanked him “then went and did something else”.

Psychological/psychiatric evidence

Although each of the three psychiatrists who have examined the applicant conclude that he is incapacitated as a result of a work injury, there remains disagreement as which aspects of his employment caused or materially contributed to the applicant’s psychological injury. As this difference of opinion is a crucial for the outcome of the case, it is appropriate to compendiously consider the psychiatric evidence at this point.

Dr St George

The applicant saw Dr St George on referral from his general practitioner, Dr Dickson. By a report of 11 March 2020, he recorded that the applicant was working in landscaping prior to “a workplace injury on 31 January 2020”. The applicant reported that his alcohol consumption had dramatically escalated “to over 24 standard drinks every two days on stopping work”. The doctor recorded the following relevant history of employment injury:
“He reports that within the first month he was assisting with repairing a lawnmower when it fell upon him while he was underneath. Marcus had been learning how to fix it from his employer whom he had thought had been in attendance stop Marcus later found out there was specific safety instruments to prevent it falling on people and were surprised that he had not been oriented towards it stop he reports being lucky to be extracted by his foreman and another employee after being pinned.”
In keeping with the applicant’s evidence, the doctor recorded that the applicant felt “intimidated into not reporting” the incident. He was told that reporting the incident would “put a target on your back”. Again, consistently with the applicant’s evidence, the doctor recorded difficulties with malfunctioning equipment and the absence of adequate occupational health & safety, which he attempted to raise without success. The doctor recorded that:
“this caused him to be further targeted by his foreman and the business owner which caused his mental state began to do to significantly deteriorate. Marcus escalated in terms of his drinking to attempt to cope with systemic harassment. Marcus reports he was subsequently verbally harassed by a colleague and attempted to make a bullying and harassment complaint against her was refused. He reports that subsequent to this he was approached and informed that he “was being aggressive” and asked to agree with this assessment. Marcus kept trying to escalate his concerns and pursue the grievance which caused his employer to lose his temper and ruminations with themes of helplessness and hopelessness as well as insomnia.”
Dr St George diagnosed an adjustment disorder with disturbance of mood and conduct. He recommended that the applicant continue with psychological therapy, which he was undertaking on referral from his general practitioner. The doctor continued to see the applicant. He recorded some fluctuation in the applicant’s mental state. But he continued to diagnose adjustment disorder with disturbance of mood and conduct.

Dr Khan

Dr Khan saw the applicant at the request of his solicitors via videoconferencing on 3 August 2020 and provided a report of that date. The doctor recorded a history consistent with the applicant’s statement and consistent with the history previously recorded by Dr St George. In particular he recorded an account of the ride on mower incident in late 2020 and the incident on 30 January 2020. He recorded the following account of the latter :
“Mr Van Vliet described how on 30 January 2020, he was verbally attacked by a client at his workplace. When he raised his concerns with Paul about the incident, he was not supported. Mr Van Vliet said on 30 January 2020, Paul proceeded to verbally and physically intimidate him and eventually terminated his employment”.
After considering the DSM-5 diagnostic criteria, Dr Khan concluded that the applicant suffered from post-traumatic stress disorder. He said this:
“Mr Van Vliet’s psychiatric/psychological diagnosis of post-traumatic stress disorder developed as a direct result of a workplace incident that occurred in late 2018 and was perpetuated by ongoing work-related psychological trauma that occurred during his employment as a landscaper and maintenance worker with Landscape Enterprises Pty Ltd.”
He expressed the opinion that the applicant had no residual earning capacity at the time of his assessment.

Dr Bisht

Dr Bisht saw the applicant on 11 May 2020 at the request of the respondent’s insurer and provided a report of 12 May 2020. The applicant gave an account of the mower incident and said that after that he would “get shaky” when he saw other people on the mower. He said other symptoms developed within “a few months”. These included having nightmares about work and work related experiences, loss of sleep, withdrawal from friends, and increased alcohol intake. The applicant told Dr Bisht that “he wasn’t aware of what was happening earlier and that he was trying to keep control of himself and his situation. He said that he was self-medicating.” The history is otherwise as recorded in the applicant’s statements and by Dr St George.
Dr Bisht expressed the opinion that given the severity of the applicant symptoms he was suffering from a psychological diagnosis, rather than a normal emotional response. He expressed the opinion that the appropriate diagnosis in accordance with DSM 5 was adjustment disorder. He observed that the applicant had symptoms “within three months of exposure to a recognisable stressor”. He expressed the opinion that the employment was the main contributing factor to the applicant applicant’s condition.
Dr Bisht noted that the documents available to him did not include a factual investigation but stated that on the basis of the history provided by the worker performance management or disciplinary actions were not the whole or predominant cause of the psychological condition. He accepted that the applicant was totally incapacitated for work and thought that a period of three months was the appropriate recovery timeframe.
Dr Bisht saw the applicant again on 12 April 2021, and provided a report of 24 May 2021. On this occasion, the applicant said that his symptoms had worsened in the last few months. He reported that he would “get anxious on minor provocation” and experienced suicidal ideation and nightmares about the incident on the lawnmower. He was unable to concentrate and, apart from gym, did not go out by himself. He continued to have fortnightly appointments with his psychiatrist.
At this consultation, Dr Bisht also considered the employers factual report. He reported:
“Markus reported that there were various hazards at work, such as being forced to drive vehicles that were overweight and working with faulty equipment. He said that he was told not to tag them, because the boss would blame him for the faulty equipment. He said he would constantly ask the boss and the foreman to fix the equipment but they would ignore him. But at the same time, he applied to become a team leader in August 2019. That indicates that the stress of working with faulty equipment was not a major stress.
He said that in late 2018, there was an incident at work where he ended up getting trapped under a ride on mower. He didn’t seek any treatment for any psychological symptoms arising out of that incident till his employment was terminated in February 2020, about a year and half later. Although Markus today reported symptoms suggestive of post traumatic stress disorder, in relation the incident when he was stuck under the lawn mower in October 2018, as per his version, PTSD symptoms reportedly had an onset around mid 2020, which was about a year and half after the initial incident. Such a delayed onset in very unlikely.
The factual investigation didn’t find substantial evidence of bullying/ Markus' psychological injury was predominantly as a result of performance management or disciplinary actions undertaken by the employer in January 2020.”
Discussion and findings
The respondent concedes that the applicant suffered a psychological injury. It is first necessary to determine the nature and causes of the injury. The different approaches to this issue can be found in the submissions of counsel but also in the divergent views of the psychiatrists. Dr Khan, in the applicant’s case, diagnoses post-traumatic stress disorder as a result of cumulative incidents, commencing with the ride on lawn mower incident in late 2018. Dr Bisht diagnoses adjustment disorder. By his initial report, he accepted that this condition resulted from cumulative psychological insults suffered by the applicant in the course of his employment, in much the same vein as Dr Khan.

By his supplementary report, however, Dr Khan expressed the opinion that it was un-likely that the applicant suffered from cumulative psychological insults commencing with the tractor incident. If so, they were of minor consequence. The applicant’s psychological state was predominantly caused by his dismissal by the respondent on 31 January 2021. Dr Khan reached this view after considering the respondents lay evidence.
It must be borne in mind in considering the injury issue that normal emotional impulses or reactions do not constitute a psychological injury. In order to establish psychological injury it is necessary to prove physiological change, the contraction of a disease to which the employment is a contributing factor, or the aggravation etc of a pre-existing disease: see Anderson Meat Packaging co-Pty Ltd v Giacomantonio [1973] 47 WCR (NSW) 3, Thazin-Eye v WorkCover Authority (NSW) (1995) 12 NSWCCR 340, and Austin v Director-General of Education [1994] 10 NSWCCR 373
If the applicant’s psychological condition results in part from one, or several, of the incidents described by the applicant, or if one or several of those events made him more vulnerable to psychological injury, it will be unnecessary to consider whether the respondent’s action in dismissing the worker is reasonable for the purposes of s 11A. The applicant will have established that his psychological injury resulted from that injury.
But, even if the evidence does not establish that the applicant suffered psychological injury as a result of one or more of the incidents prior to 31 January 2001, to succeed on its defence it remains necessary for the respondent to prove that the circumstances relating to the applicant’s dismissal were the whole or predominant cause of his psychological injury. It is insufficient for the respondent to simply point to the fact that the evidence does not establish prior psychological injury. It has the onus of complying with the statutory language in s 11A.
There is a long line of authority emanating from the Presidential Unit of the Commission that “predominantly” in s 11A can be equated to “mainly”: McCarthy v Department of Corrective Services [2010] NSWWCCPD 7 at [157]. In See v The Commissioner of Police [2017] NSWDC 6 (3 February 2017), Neilson DCJ noted that the word “mainly” was used in the 1987 Act in other contexts. In those circumstances, “predominantly” should be given a different gloss. At [138]
“Having reviewed the dictionaries and these authorities, I prefer to gloss “predominantly” with the adverb “chiefly”. To me it means much more than merely 51%, which is where “mainly” usually leads. To predominate something must eclipse each other factor and all other factors.”
It is unlikely that the distinction between “mainly” and “chiefly” will cause practical difficulties in determining the issue.

Credit

There is a marked conflict in this case between the applicant’s evidence and the evidence of the respondent’s witnesses. It was for that reason that I listed the matter for an audio-visual hearing in the expectation that there may be an application to cross-examine witnesses at the arbitration. Neither side made such an application. Mr Gaitanis submitted that the applicant’s evidence is unreliable. The Commission is left to resolve the issue of credit on the basis of the written evidence.
Many of the employment incidents/occurrences described by the applicant in his statements are directly refuted by the respondent’s witnesses. The applicant says that he was discouraged from reporting the tractor incident. However, Mr Kells states that incident report forms were readily available for workers to complete if they thought it necessary. The applicant says that there was no regard to safety and that he and other members of staff were compelled to operate faulty vehicles and other equipment. Mr Kells states there were regular toolbox meetings and vehicles and equipment were repaired by him or by an authorised mechanic as soon as they were reported as faulty.
The applicant says that Mr Quinn ran the business through fear and intimidation directed at his employees. Mr Quinn and the three witnesses, whose evidence I have summarised above, deny that Mr Quinn behaved in a bullying and intimidatory manner towards employees. Mr Quinn specifically denies threatening to “tear up” the applicant’s employment contract.
Whereas the applicant has told medical practitioners that he was “targeted” and bullied by Mr Quinn and Mr Kells, they state that this is untrue. Rather, there was a history of the applicant mistreating other workers so that they felt “threatened” by him and were reluctant to be allocated to his team. Whereas the applicant states that he was racially targeted by Fia in the lunchroom on 30 January 2020, Mr Woolf says that the applicant’s reaction to her was “unnecessary and completely unwarranted.”
It must be borne in mind that employees may believe that it is in their interests to provide evidence which is supportive of their employer in a dispute with a former employee. But even with this reservation, the evidence of the respondent’s witnesses is quite uniform and persuasive. On the other hand, there are some internal inconsistencies in the evidence of the applicant. While he gives a history of cumulative bullying by Mr Quinn throughout the period of his employment culminating in his dismissal on 31 January 2020, other aspects of his evidence give a distinctly contrary impression.
Despite his assertion that he was “constantly” bullied and intimidated by Mr Quinn, the applicant states that Mr Quinn “did not raise any performance issues with him”. Rather, he told him he was one of his best workers and that “he could not fault me”. The applicant was promoted in the first half of 2019 to team leader, paid a bonus during each quarter he was employed thereafter and, if Mr Quinn’s evidence is accepted, provided with a company vehicle.
Having attempted to reconcile the conflicting evidence, I have concluded that it is not possible. I have considerable doubts about the reliability of the evidence of the applicant. In addition to the issues I have referred to above, much of his evidence of bullying and harassment and the onset of the psychological symptoms is extremely vague. In this case, the evidence of the respondent’s witnesses should be preferred.
It follows from this finding, that I do not accept that the applicant suffered a psychological injury prior to the events of 30 and 31 January 2020. The medical opinions which support a finding of injury are posited on the history of the applicant’s psychological reaction to the ride on lawn mower incident and continuous bullying and harassment which I do not accept. There is no objective evidence that the applicant suffered a psychological injury or psychological illness during this time.
It is true that there is one reference in the notes of Dr Melito, who treated the applicant in 2018 and 2019 to “stresses in work”. On that occasion, the applicant also reported that he was having nightmares since an “alleged assault” which apparently arose after an altercation between the applicant and a security guard at Parramatta Stadium following a rugby league game. I should add that the evidence establishes that the applicant was exonerated from any wrongdoing in this incident.
There is no further reference to any psychological difficulty arising from the ride on mower incident or any other incident at work in the serial notes of Dr Melito. Curiously, on 4 March 2020, shortly after the applicant’s employment was terminated, and before he consulted Dr Dickson at the Workers Doctors, Dr Melito recorded the following:
“Pt presented with a Fitness Application Form for the commencement of fitness and weight training
Pt has also requested a referral for a Psychologist in light of recent assault.
Pt is experiencing broken sleep, nightmares and anxiety”.
The doctor recorded no history of any work incident that might be affecting the applicant’s psychological health.
Similarly, there is no lay evidence to suggest that the applicant complained to fellow employees of psychological symptoms resulting from his employment with the respondent at any time prior to his dismissal.
On the issue of whether the applicant’s accepted psychological injury was wholly or predominantly caused by the employer’s actions in respect of discipline or dismissal, I prefer the opinion of Dr Bisht in his report of 24 May 2021 that it was predominantly caused by the actions on 30 and 31 January 2020. His opinion is based upon the entirety of the evidence including the evidence of the respondent’s witnesses. It is also in accordance with my finding as to credit. Indeed, I am inclined to the view that the evidence establishes that the actions on 30 and 31 January 2020 were the whole cause of the applicant’s psychological injury.
As Mr Tanner submitted, the absence of complaint at work or to a doctor may be immaterial in many psychological cases, particularly those where the appropriate diagnosis is PTSD. Evidence is repeatedly given by psychiatrists that this condition may not result in symptomatic illness for months or years after the occurrence of injury. That, of course, involves an underlying assumption that the evidence of the patient is reliable. That assumption has not been established in this case.

Reasonableness

The exposition of the law relating to s 11A (1) in Northern New South Wales Health Services v Heggie [2013] NSWCA 255 (9 August 2013) (Heggie) provides a useful starting point for any decision involving the section. In that case, Sackville AJA said this at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A (1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
The concept of reasonableness in s 11A is not clearly defined in the case law. In Commissioner of Police v Minahan [2003] NSWCA (24 September 2003) the Court of Appeal referred to decisions of the Compensation Court relied upon by Walker J, at first instance, without suggesting that they were erroneous. In Irwin v Director-General of School Education (unreported, 18 June 1998) Geraghty J, stated:
“The question of reasonableness is one of fact, weighing all the relevant evidence. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of “reasonableness” is objective and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances by a question of fairness.”
Then, in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss J, stated:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected”.
The judgment in Heggie casts some doubt on whether it is always necessary to consider the rights of the employee. Obviously, it will be necessary to undertake that task in many cases: c.f. Pirie v Franklins Ltd [2001] NSWCC 167 (10 September 2001). I see no reason why this is not such a case.
The case law also establishes that a finding that an employer has not proven that a disciplinary action is reasonable is not a finding that it is unreasonable. But reasonableness does not require the employer’s actions in respect of discipline to be flawless.
Much of Mr Tanner’s submission involved a wide ranging attack on the reasonableness of the respondent’s actions on 30 and 31 January 2021. He argued that :
“it is simply implausible that arbitrary, temperamental and frankly abusive process could be considered reasonable disciplinary action”.
Mr Tanner submitted that there was no appropriate process. There had been no “primary finding” of misconduct against the applicant. There was no consideration of his disciplinary history or the fact that he had not received a warning prior to the events of the 30 January 2021. There was no evidence of the applicant having conducted himself in an unacceptable manner towards any of the respondent’s clients previously.
By reference to Markovski, Mr Tanner submitted that the respondent’s actions were unreasonable in that:
·        a manager’s demeanour was relevant to the issue of fairness. Mr Quinn had conceded in his evidence that he had become angry during the meeting of 31 January 2021;
·        the failure to give the applicant any notice that the meeting of 31 January 2021 was a disciplinary meeting thus enabling him to appropriately prepare to deal with allegations, and to obtain the assistance of a support person;
·        the blurring of the distinct lines between the investigation of potential misconduct and the imposition of discipline in that the applicant was never provided an opportunity to present arguments as to whether he was “guilty in the first place”, and
·        the imposition of the penalty of termination of employment was inappropriate.
In reply Mr Gaitanis submitted that the applicant’s words and actions on 30 January 2021, in the context of his prior behaviour, was so egregious as to warrant dismissal. He suggested that it was implausible that the applicant “would not consider his job in peril” at the commencement of the meeting on 31 January 2021.
During the course of argument, I indicated, probably rather clumsily, that the content of the employer’s obligation of reasonableness might vary depending on size and resources. I had in mind that it may not be practical for a small employer to conduct a series of formal meetings to determine culpability, make findings as to misconduct, and separately address penalty. The evidence established that the respondent had eight employees. But whether this was in addition to Mr Quinn and included casuals is not entirely clear.
It is a difficult to imagine that multiple meetings are appropriate, for example, where a builder is working on site with his two labourers and one of them engages in misconduct. Plainly, in the vast majority of cases, the builder is obliged to provide the supposed culprit with an opportunity to explain his actions before disciplining him. But he is not obliged to follow the same process as might be expected of a government department or a larger employer with a human resources department both of which probably have a written code or protocol for dealing with misconduct. In the case of a government department the code may have its origins in legislation.
Section 11A(1) of the 1987 Act requires a determination of whether the employers actions are reasonable both in form and in substance. The concept of reasonableness must depend on all the circumstances of the case. It cannot be given a rigid and unvaried content. To adopt the language of Gageler J in CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514; [2015] HCA 1 at [367] “Procedural fairness as implied in some contexts can have a flexible, chameleon-like, content”. His Honour was dealing with a case involving the detaining of a person on the high seas and removing him to India. Thus, the source and content of the duty to provide procedural fairness is quite different. However, the language demonstrates the flexibility of the content of the obligation.
One of the factors which was relevant to the determination of Roche DP in Markovski was that the worker had been employed for some 30 years at the time of the employer’s action in respect of transfer which led to his psychiatric decompensation. Prior to his psychiatric injury, he had suffered a physical injury in the course of his employment. It was not argued that he was culpable of misconduct. These factors are not present in this case However, I accept unreservedly that the test of reasonableness is one of fairness and that generally the enquiry will involve the weighing up of the objectives of the employer against the rights of the worker.
In this case, Mr Quinn and Mr Kells concluded on the basis of their enquiries with Stockland and Fia, on the morning of 31 January 2021, that the applicant had spoken to Fia in a demeaning manner employing extremely offensive language. The evidence establishes that the applicant spoke in a similar manner to a female employee in the past and had forwarded a text message to a male employee couched in similarly offensive language. It is true, as Mr Tanner submitted that the applicant had not been formally warned on either of these occasions. But the evidence of Mr Quinn is that he spoke to him on, at least one occasion, and that Mr Kells spoke to him on other occasions. To this should be added the evidence that several of the respondents employees were reluctant to work with the applicant because of his attitude and manner.
The respondent had given the applicant and Mr Woolf the opportunity to put their version of the story the previous day. After the meeting with Mr Lou and Fia on 31 January, Mr Quinn and Mr Kells made quite different decisions as to the culpability of the two men. This decision was not made in the heat of argument but after considering the available evidence. Thus, there was a process of sorts, probably not strictly in accordance with the template provided by the Department of industry or the Fair Work Ombudsman, but one that provided basic procedural fairness in the context of a small business.
In my opinion, the evidence establishes that the decision to terminate to the applicant’s employment was reasonable in the circumstances of the case. There is considerable force in the submission of the respondent that the applicant’s behaviour was so egregious as to bring termination of employment within the scope of reasonable action by the employer.
The manner in which termination was conveyed to the applicant was imperfect. Mr Quinn’s evidence concedes this point. However, in the circumstances, there would appear little point in telling the applicant he was to attend a disciplinary meeting at which his employment was to be terminated on his return to the yard on the afternoon of 31 January 2020. In this case the procedural flaws do not detract from a conclusion that the employer’s actions were reasonable. As the respondent has proven that the applicant’s psychological injury was caused by reasonable action with respect to discipline and dismissal, there will be an award for the respondent.

[2022] NSWPIC 14

10 January 2022