Verrelli v Georges River Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Verrelli v Georges River Council [2024] NSWPIC 717
APPLICANT:	Rocco Verrelli
RESPONDENT:	Georges River Council
MEMBER:	Gaius Whiffin
DATE OF DECISION:	19 December 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for psychological injury; claims for weekly benefits compensation and treatment expenses pursuant to section 60, as well as lump sum compensation pursuant to section 66; determination re injury required before claims can be determined; consideration of applicant’s and witnesses’ statements, medical reports and other treatment records, claim correspondence, and factual material; consideration of whether the applicant sustained a psychological injury in accordance with section 4 as a result of employment events occurring during the course of his employment with the respondent; Attorney General’s Department v K, Paric v John Holland (Constructions) Pty Limited, Dasreef v Hawchar, Forrester v Harris Farm Pty Ltd, BGV v Waverley Council, Kooragang Cement Pty Ltd v Bates, AV v AW, Commissioner for Railways v Bain, Fletcher International Exports Pty Limited v Barrow & Anor, and Perry v Tanine Pty Limited t/as Ermington Hotel considered; 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 transfer, retrenchment, dismissal or the provision of employment benefits pursuant to section 11A; Pirie v Franklins Limited, Department of Education and Training v Sinclair, 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 Portugese Sports and Social Club Limited, Smith v Roads and Traffic Authority of NSW, and Hamad v Q Catering Limited considered; Held – the applicant sustained injury in accordance with section 4(b)(ii); the respondent has failed to establish its defence under section 11A; the applicant is referred to medical assessment to determine the degree of his whole person impairment.
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)(ii) 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 16(1)(a)(i) of the 1987 Act and as pleaded, the applicant’s psychological injury will be deemed to have happened on 17 December 2020. 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 transfer, retrenchment, dismissal, and/or provision of employment benefits. The Commission orders: 4. I remit these proceedings to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) for assessment as follows: (a) date of injury: 17 December 2020; (b) body systems/parts: psychiatric and psychological disorders, and (c) method of assessment: whole person impairment. 5. 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; (d) the respondent’s Application to Admit Late Documents dated 16 September 2024 and its attached documents, and (e) the respondent’s Application to Admit Late Documents dated 27 September 2024 and its attached documents. 6. Following the completion of the Medical Assessment process, the proceedings will be listed before me again for a preliminary conference in order to deal with all outstanding issues still requiring determination.

STATEMENT OF REASONS

BACKGROUND

Rocco Verrelli (the applicant) is 62-years-old and worked for Georges River Council (the respondent) from 20 May 2016. He was a senior building surveyor.
The applicant alleges that he sustained a psychological injury as a result of events which occurred during his employment with the respondent. He last worked for the respondent on 16 December 2020, and has not worked since.
It is apparent that the respondent initially paid weekly benefits compensation to the applicant after 16 December 2020, and also met his expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act).
However, on 16 December 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 alleged psychological injury. The applicant has as a result not received any weekly benefits compensation since 5 January 2022, or payment of his medical expenses in relation to his treatment for his alleged 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 or proposed to be taken by the respondent with respect to “transfer, retrenchment or dismissal of workers, and/or provision of employment benefits to workers”, in order to provide it with a defence to his claim pursuant to s 11A of the 1987 Act.
The applicant then, by a claim form dated 12 April 2023, made a formal claim upon the respondent for lump sum compensation pursuant to s 66 of the 1987 Act in relation to his alleged psychological injury – the claim form claimed that the applicant’s whole person impairment was 19% and attached medical evidence in that regard.
The respondent issued a further notice under s 78 of the 1998 Act on 15 September 2023, confirming its position in its 16 December 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 5 January 2022 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 alleged 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 agree that the following issues are in dispute and require determination at this stage in the proceedings:
(a) whether 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 of the 1987 Act, and
(b) if the answer to (a) is in the positive, 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 transfer, retrenchment, dismissal, and/or provision of employment benefits.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the proceedings 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 proceedings 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 proceedings.
An extensive conciliation conference was held in the proceedings on 20 September 2024. On that occasion, Mr Ross Stanton of counsel appeared for the applicant instructed by Mr Lei, and Mr Brendan Jones of counsel appeared for the respondent instructed by Ms Maiuolo. The applicant was present in person (with his wife, Lucia Verrelli, in support), and a representative from the respondent’s insurer (Mr Reitano) was also present.
As an agreed resolution of the disputes in the proceedings was not able to be reached during the conciliation conference, the proceedings proceeded to an arbitration hearing.
It had already been agreed (in accordance with my direction dated 18 July 2024 following a preliminary conference in the proceedings) that “the only issue to be determined at the conciliation/arbitration [on 20 September 2024] is injury”.
In this regard, I considered that if the applicant was successful in establishing injury, it was necessary for a Medical Assessment referral to be made before his compensation entitlements could be determined. An assessment of the degree of his permanent impairment in this respect would not only determine his claim pursuant to s 66 of the 1987 Act, but it was also necessary in order to determine both whether he was entitled to weekly benefits compensation in accordance with s 38 of the 1987 Act (for the period from 130 weeks post 17 December 2020), and whether he was entitled to payment of treatment expenses pursuant to s 60 of the 1987 Act (having regard to the limitations prescribed by s 59A of the 1987 Act).
Conversely, if the applicant was unsuccessful in establishing injury, there would be awards for the respondent regarding the entirety of the compensation claimed by him.
As a result of the extensive conciliation conference held on 20 September 2024, there were time constraints on that date in the parties being able to provide oral submissions. Directions were therefore made regarding the provision of written submissions, which the parties have complied with.
Following the receipt of the parties’ written submissions, I made a further direction (dated 31 October 2024) as the respondent’s written submissions disputed that the applicant had sustained a psychological injury which was mainly contributed to by his employment with the respondent. In this regard, I had noted in my 18 July 2024 direction following a preliminary conference in the proceedings:
“The respondent confirms that the issue in dispute is the defence that it wishes to rely upon pursuant to s 11A of the Act (transfer, retrenchment, dismissal, provision of employment benefits) - it is not in dispute that the applicant’s psychological injury was mainly contributed to by his employment with the respondent.”
In accordance with the 31 October 2024 direction, the parties subsequently provided further written submissions, in which the applicant took no objection to the respondent being allowed to dispute that he had sustained a psychological injury which was mainly contributed to by his employment with it (despite its apparent concession in this regard during the preliminary conference).
In those circumstances, I was able to confirm that the issues that I am required to determine at this stage in the proceedings are the issues listed at paragraph 9 above.

EVIDENCE

Documentary evidence

The following documents were in evidence (with the consent of all parties) before the Commission and considered in making this determination:
(a)    the ARD and its attached documents;
(b)    the respondent’s Reply (Reply) and its attached documents;
(c)    the respondent’s Application to Admit Late Documents dated 16 September 2024 (respondent’s first AALD) and its attached documents, and
(d)    the respondent’s Application to Admit Late Documents dated 27 September 2024 (respondent’s second AALD) and its attached documents.
It should be noted that the evidence in these documents includes much evidence (such as the applicant’s pay records with the respondent, invoices in relation to the expenses claimed by the applicant in accordance with s 60 of the 1987 Act, an earning capacity assessment in relation to the applicant, sick leave certificates of the applicant’s, and bank statements of the applicant’s) that are not specifically relevant to the issues which I need to currently determine (see paragraph 9 above), but which may be relevant if other issues need to be determined later. I will therefore not be detailing that evidence in this determination, unless specifically referred to it in the parties’ submissions.

Oral evidence

There was no oral evidence called in these proceedings.

Statement and factual evidence relied upon by the applicant

The applicant has provided a signed statement dated 14 April 2021, which is found at page 9 of the ARD. It was prepared by Brooksight Investigations, following discussions between the applicant and one of its investigators. Brooksight Investigations had been requested to obtain the statement by the respondent’s insurer.
The applicant says that he was diagnosed with anxiety and depression around 25 years ago. His treating general practitioner in this regard was Dr Marinucci (who has in fact been his general practitioner for over 35 years) and he had consulted with Dr Saker (psychiatrist) for around 10 years, who had prescribed him with medication. He began consulting with a different psychiatrist, Dr Jacobson, around four or five years ago when Dr Saker moved to Newcastle, although he maintained contact with Dr Saker every four to six months on average.
The applicant says that he commenced employment with Hurstville City Council on 18 November 1985 as a health and building surveyor. He was still working in this capacity when Hurstville City Council amalgamated with Kogarah Council (the amalgamation) to form the respondent, on 20 May 2016. He then continued to work for the respondent with his job description being as a senior building surveyor. He directly reported to the respondent’s building certification coordinator, Michael Alexander (Alexander). He says:
“Since the amalgamation in May 2016, the work conditions started to change as I inherited the additional workload from the Kogarah Council. I then needed to work longer and longer hours, at times, up to 7 hours and more each week in unpaid overtime to just try and keep up with the extra work. I had no choice, unless I worked the longer hours the work would build up and it would create more pressure on me the next day. I began to feel an unrelenting burden and anxiety.”
In addition, after the amalgamation, the staff numbers in his team began to reduce. As at 12 May 2016, there were 11 building surveyors and seven administrative positions in the team, but by early 2017, there were only seven building surveyors and two administrative positions in the team. He had to as a result do his own processing work due to the lack of administrative staff, and he says that his “workload doubled and more” and he “ended up working in an unhealthy workplace environment”.
He says that:
“As the workload continued to grow, management began to apply unnecessary pressure on me and my fellow colleagues to work faster and suggested I and others take short cuts. Michael began to say, it is not necessary to be accurate on your assessment. Close enough is sufficient for most jobs. But in my field of work that could result in injury or loss of life to person, loss of my accreditation, loss of my job, liability claims against me and the Council, and be issued by the management with a Written Warning and then placed on a Performance Review.”
Unrealistic deadlines to complete work then began to be issued after Ryan Cole (Cole) was appointed the respondent’s development and building manager in 2017. He says that the requested time frames were mostly unachievable, but he would receive constant emails in this regard. He says that the “unrelenting pressure to complete jobs within the allocated time then started to feel unbearable”.
The applicant explains that his duties included determining construction and complying certificate applications for small to medium sized commercial and residential developments, determining whether existing buildings required fire-upgrading, assessing new buildings for general compliance with building codes, and determining other development applications. He is accredited with Fair Trading NSW and the Australian Institute of Building Surveyors, both of which require him to renew his accreditation annually following the completion of relevant continuing professional development courses. He says that his accreditations could be lost if he made an error in his work or took short-cuts.
He says that he asked Alexander for assistance from about 2017 and was advised that more staff were going to be employed, but they never were. In his skills and performance review with Alexander on 21 November 2017, he also specifically mentioned his workload increase.
He then complained to Cole about three or four months after Cole was appointed, that his high workload prevented him from assisting other staff. He was told by Cole that “management have told me that we do have sufficient staff for all the work to be carried out”. He says that he told Cole that he disagreed, and maintained that there had been a substantial increase to his workload. He suggested that he and Cole discuss these workload issues further with either the respondent’s environment and planning director, Meryl Bishop (Bishop), or the respondent’s general manager, Gail Connolly (Connolly).
In the applicant’s skills and performance review on 28 September 2018, Alexander acknowledged his complaints about increased workload and reduced staff levels, which had led to a deterioration in customer service as well as a build-up of stress for him, when Alexander wrote:
“Rocco is experiencing a large increasing workload due to more high-rise development resulting in large numbers of hoarding applications, construction certificates and DA referrals; The referrals that were once shared amongst 4 persons are, now 2 only; We have tried to recruit an additional Senior Building Surveyor with no success; We are going to advertise again in the next 2 weeks with a different strategy; Rocco has worked extremely hard and a lot of extra hours, and I am working on methods to relieving his workloads based on further staffing levels to ensure Rocco’s professionalism is not compromised and so too Council’s reputation; I am committed to assisting Rocco with his workloads and I am looking to engaging professional staff to assist the ever-increasing workloads under the amalgamation.”
In his 2019 skills and performance review, he again complained about “the excessive unmanageable workload in our building unit has continued to increase”, causing “strain” on him, and therefore requiring the respondent “to have regard to our wellbeing”. Alexander again acknowledged that the applicant was “frustrated with the workload and the timeframes required to complete the work”, and that the applicant was working extra hours, for which his efforts were appreciated.
The applicant says that at this stage:
“The constant pressure applied to finalise all actions, (even though they knew we had staff shortages) was unrelenting, regardless of the process I needed to follow to ensure compliance. The harassment, and constant intimidation never stopped. It caused me constant loss of concentration and the ability to work effectively. It affected my work morals. I found myself in an unrelenting Toxic Work Environment which continued to get worse. I felt constantly drowning and gasping for fresh air that was slowly running out. I was finding it hard to cope at work on a daily basis.”
He also says:
“Management and the Council do not take or accept any responsibilities associated with my determination. They separate themselves from the process and the final decision of the application. I carry all the responsibilities and liabilities for the lawful outcome and decision I make. However, during the process I am constantly pressured and scrutinized, called on to justify any decision made or compliance requested, or evaluation time needed, if dissatisfied or not agree with my judgment. This was happening regardless of the application type, the complexity of the work, the documentation required…The applied constant pressure is intimidating and never stopped. It caused me constant loss of concentration and the ability to work effectively. It affected my work morals and caused me constant anxiety and low self-esteem. It exhausted me.”

The applicant then outlines certain specific events which occurred:
(a)    on 5 July 2017, he first raised an issue with the respondent regarding the private use motor vehicle value component of his salary regarding his work vehicle not being declared to his superannuation fund (resulting in a financial disadvantage to him) – the respondent however took until 18 March 2019 to eventually agree to make the relevant declaration, originally advising that it had nothing to declare in this regard – in the interim, he had raised this issue with Lisa Cooper (Cooper – the respondent’s human resources business partner), Fiona Campbell (Campbell – the respondent’s human resources executive manager), his superannuation adviser, his superannuation fund, and the Australian Financial Complaints Authority – he says that his “endless fighting for my rights and the unjust treatment I suffered, caused me so much grief, stress, anxiety, loss of sleep and periods of deep depression”;
(b)    on 8 May 2018, he was issued with a complaint notice from the Department of Fair Trading and he “was in total shock” – the complaint related to an interim occupation certificate that he had issued on 15 July 2015, and Connolly had later advised the complainant that the certificate contained an omission by the certifying officer (him) – he says that he had not made the omission, and he was as a result eventually cleared by the Department of Fair Trading after providing it with additional documentation – he also says that he was not provided with any assistance regarding the complaint from the respondent, even though he requested it from Alexander – he says that Connolly’s incorrect advice to the complainant had created an “uncalled-for situation” which made him feel anxious, upset, hurt, and alone – he regarded Connolly’s comments as defaming him;
(c)    he had been helping the respondent’s senior solicitor, Amanda Berry (Berry), with a hoarding application which was not otherwise part of his responsibility – on 23 January 2019, he told Berry that she needed to obtain certain information from the applicant to the application and then request the respondent’s property manager to review that information because his workload prevented him from assisting in this regard – he was then spoken to by Cole’s personal assistant and the respondent’s building team leader, Sam Papadoniou (Papadoniou), requesting that he provide Berry with the information sought by her – he says that his “mental health then immediately spiralled out of control”, and he told them “please leave me alone, I have already told Amanda what to do, if you don’t leave me alone, I am just going to walk out of here” – he says he could not deal with the pressure anymore;
(d)    on 25 July 2019, he received an email from Cole in relation to a specific complying development certificate determination, stating “no more chances on this application, you are directed to determine it tomorrow” – he says that he felt intimidated as he was not comfortable in determining the application at that time due to outstanding information – Cole’s direction was unwarranted and put undue pressure upon him – he emailed Cole on 31 July 2019 advising that determination of the application at that stage was not justifiable and that he would continue to monitor the application;
(e)    on 20 August 2019, he received an email from Alexander that “completely distraught and disillusioned me” and that “caused me to feel bad for weeks and weeks” – he says that the email “just tore me apart “ and that in it, Alexander accused him of not following proper process, having no work ethics, and not providing adequate customer service, in relation to a particular application – he says that the accusations were incorrect and he responded by email on 21 August 2019, advising Alexander that he felt offended and betrayed in relation to the false accusations and “criticism of my work morals”, and pointing out to Alexander in relation to the particular application that he had emailed Alexander before he went on leave on 16 July 2019 identifying the attention that needed to be paid to the application – he says that Alexander later sent him a text message apologising for his comments in the 20 August 2019 email;
(f)    on 2 October 2019, he attended a meeting with Cole and Alexander in which he was advised that his team’s budget was to be reduced and that management “refuses to accept we need additional staff”;
(g)    on 27 November 2019, he emailed Alexander requesting his assistance to ensure that the respondent’s customer service staff correctly checked that documents lodged by applicants conformed with lodgement requirements, rather than simply referring the documents to him – he expressed his frustration to Alexander, but no action was taken and he had to deal with inaccuracies in documents on an ongoing basis;
(h)    on 21 April 2020, he received an email from Alexander telling him to finalise some old outstanding applications – he replied to the email advising that he required assistance, he was working extra unpaid hours, it was impossible for him to keep up-to-date, and that applications could not be rushed and had to be assessed correctly – he asked that his email reply be forwarded to Cole and Bishop – Alexander then emailed him back advising that Alexander would forward his email to Cole only, and also advising that Alexander was aware that he was working long hours but that he was frustrating Alexander by not prioritising certain jobs – he describes Alexander’s comments as inaccurate, misleading, hurtful, and unjustified – he later replied to Alexander’s email on 1 May 2020 advising that he always prioritised his work time;
(i)    on 29 April 2020, he received two emails from Alexander requesting immediate action on a certain application – he replied to the emails advising that he was working additional hours every day and was “getting extremely frustrated, distressed, and feel aggravated by managements constant pressure on me” – Alexander then emailed him back accusing him of “failing to respond to him immediately” – he later replied to Alexander’s email on 1 May 2020 advising that he only checked his emails:
“…usually 2 to 3 times a day to save time; I cannot believe your expectation, that I should constantly check for your mail and respond right away…it is an unrealistic expectation and impractical; you have upset me again…no matter what I do, the constant unnecessary and wrongful accusations against me have continued…I feel unappreciated and constantly harassed…I just want it to stop”;
(j)    on 30 April 2020, during an email exchange with Alexander as to why a particular application required urgent action, Alexander “questioned my information timeline and implied it may not be correct; and that I do not understand the meaning of work prioritisation” – as part of his reply on 1 May 2020, he advised that:
“…in my 30 years plus service at Council, I have never been placed or worked in such an unhealthy work environment; unless management is able to provide adequate assistance to me, I request to be allowed to work without constant aggravation, pressure, and constant reminders to complete work actions…the constant emails request from management, (when my competencies, professionalism and work ethics are questioned) are having an adverse effect on me…they are disheartening, and are a never-ending distraction, which plays on my mind and slows my workflow”;
(k)    he sent another email to Alexander on 1 May 2020, which he summarises:
“I have no choice but to strongly object to all your false and constant attacks of me; I feel uncomfortable and do not appreciate unjust insinuations; I can accept, accurate criticism of me, but not the lies and the unsupported condemnation and criticism of me. I want this unjust treatment and false accusations against me to stop. It feels like there is a personal vendetta against me. I feel constantly harassed. I don't feel comfortable in pointing this out to you. But I just want it to stop. It is affecting my ability to work; I realise we lack resources, but our professionalism and your treatment of work colleagues should never transgress.”;
(l)    on 9 May 2020 and on 21 May 2020, he spoke with a counsellor from the respondent’s Employee Assistance Program regarding his work conditions;
(m)     on 18 May 2020, Alexander emailed him advising “I could do all your 15/5 duties in ½ an hour” – he replied requesting Alexander advise him as to what “exactly are you trying to say to me”, to which Alexander replied advising “Beef it up a bit” – he replied again asking Alexander what Alexander was implying, but did not receive any further reply;
(n)    on 1 July 2020, he sent another email to Alexander complaining about being referred applications which had not been sorted and processed correctly by administrative staff first – he again expressed his frustration to Alexander in this regard;
(o)    on 18 September 2020, Alexander requested that he advise as to the status of all outstanding hoarding applications as soon as possible – he explained that he had other urgent applications where he had promised the applicants that he was finalising them, but was told by Alexander that Cole wanted the review of the hoarding applications – he says that he felt highly stressed and he went to speak to Bishop, advising her that it was not physically possible for him to achieve his workload and that he wanted the constant pressure and harassment to stop – Bishop suggested that he advise Alexander as to his prioritisation of work, and he did so, but there was no reply from Alexander – later on that day, he received a telephone call from Cooper asking him how he was feeling – she told him that he needed to learn how to deal with management’s requests and he advised her that:
“I am perfectly versed in my work and do not have any issues in how to handle it, or management requests…but the problem lies in the fact that I have been continuously harassed to carry out a high workload which remains physically not possible to be achieved…I have told management that we do not have sufficient staff…We have less staff now than before we amalgamated but double the workload and more…I have been working additional hours, unpaid, to keep up with the workload…I and others have constantly been harassed and bullied to keep up with the workload…I have pointed this out far too many times, but it is simply disregarded” –
Cooper yet again however told him that he needed to learn how to deal with management’s requests – he advises that as a result, he felt intimidated, disheartened and saddened as Cooper “intentionally kept accusing me of been [sic] inept and made me feel worthless” - his anxiety and depression increased;
(p)    on 7 October 2020, he and the respondent’s building certification team attended a presentation with Cole and Cooper during which they were advised that the team was being restructured (the proposed restructure), and after a period of consultation, the respondent’s senior building surveyors (including him) would be made redundant and two new positions would be advertised for senior building surveyors that they could apply for – he says he was confused and wanted clearer direction – he sought medical attention and had a week off work on sick leave – he says he “was previously feeling on edge because of the toxic work environment I was working in, but I had worsened after the presentation…I was unable to think and function effectively”;
(q)    he returned to work on 15 October 2020 and had over 100 emails needing his attention as no one had assisted in this regard while he was off work on sick leave – he immediately felt stress and anxiety – he also had difficulties concentrating because he had “many issues going through my mind” relating to the proposed restructure that he was advised about on 7 October 2020;
(r)    Alexander conducted his annual skills and performance review on 28 October 2020 – he again raised his workload increase, his team’s inadequate staffing, and the extra work that he had had to perform, which “is having a detrimental effect on my health and safety” – he asked the respondent to abide by health and safety policies and procedures in this regard – he says that Alexander’s written review summary acknowledged both the extra hours that he had had to work to “complete a large workload often without assistance”, and the responsibility of his position “in the assessment of complex matters” – the summary also acknowledged his frustration and advised that his efforts were “greatly appreciated”;
(s)    on 18 November 2020, he received an email from Bishop outlining the proposed restructure arrangements, including the relevant redundancy and recruitment processes – he says that despite the imminent restructure,
“…the workload and pressure from management to continue to carry out work never stopped, but increased, as the urgency they wanted all jobs completed before we would be redundant on the 11th of January 2021, increased…It was difficult to concentrate, I constantly felt on edge and anxious because of the high workload pressure that needed to be done”;
(t)    on 19 November 2020, he received an email from Cooper requesting the submission of an expression of interest for a voluntary redundancy – he submitted that expression of interest on 25 November 2020, and explains his reasons:
“I was not ready to leave work. But the way I was feeling, everybody was telling me, my family, and doctors recommended I should not be in my current toxic work environment as I my mental health had deteriorated and was getting worse. I tried my best, but I had to admit to it, as I was heading in the wrong direction, downhill quickly. It was also affecting my family life. It was a toxic environment that I was working in, it was affecting my health. Plus, I knew that the new structure with more reduction of Senior Building Surveyors from 6 to 2 would made the existing work conditions even worse. For this reason, I put in for the VR.”;
(u)    on 16 December 2020, he was supposed to attend a presentation to receive an award from Connolly but he “could not face her” as a result of the advice which she had earlier given and which had led to the complaint against him on 8 May 2018 from the Department of Fair Trading – he regarded the presentation as “all fake and false” – he did not feel well, he left work, and he consulted with his general practitioner (who provided him with a certificate of capacity);
(v)    on 17 December 2020, he received an email from Cooper advising that his voluntary redundancy had been approved with his termination date being 9 July 2021 – he then emailed to Cooper the certificate of capacity which he had obtained on 16 December 2020 – she then telephoned him asking whether he wished to accept the voluntary redundancy immediately – he says that the tone of her voice was annoyed, aggressive, and forceful – he advised her that he could not decide whether to accept the voluntary redundancy immediately, and he asked her to stop applying pressure to him as he was not in a “good state of mind”, and
(w)   on 21 January 2021, he received documents from the respondent’s insurer, which had errors regarding the calculation of his gross wage and regarding the award that he was covered by – he called his relevant case manager with the insurer as the documents “triggered my anxiety levels to skyrocket”.
The applicant has also provided an additional signed statement dated 6 June 2024, which is found at page 51 of the ARD. The statement largely provides further clarification of his 14 April 2021 statement. Relevantly:
(a)    he confirms that prior to the amalgamation, he was provided with assistance when his workload was heavy or when he went on leave;
(b)    he confirms that his managers prior to Cole properly comprehended his duties, workload and responsibilities (especially his primary responsibility to prioritise public safety and ensure regulatory compliance), whereas Cole’s focus shifted towards fulfilling key performance indicators rather than an emphasis on safety and compliance;
(c)    in relation to Alexander, he confirms that when he raised issues regarding workload or staff shortages, Alexander “always acknowledged and agreed with my concerns” – Alexander also specifically advised him that Alexander needed to raise those concerns directly with Cole, rather than him raising them with Cole;
(d)    he confirms that he received no response from the respondent to the work concerns that he consistently raised in his skills and performance reviews;
(e)    in relation to the complaint against him on 8 May 2018 from the Department of Fair Trading, he confirms:
“If I had been given the legal assistance that I was promised by Michael, the matter would have been effectively handled…The matter could also have been better handled if the General Manager [Connolly] had corrected and retracted the false allegation made against me as soon as the matter was discovered”;
(f)    in relation to the assistance which he was providing to Berry in January 2019, he confirms that the assistance “was unrelated to any of my usual work duties”;
(g)    he says that when he submitted his expression of interest for a voluntary redundancy on 25 November 2020, he sought to improve his redundancy payment based on his years of service and his award entitlements – he then received the respondent’s response to his expression of interest on 17 December 2020 after he had obtained his 16 December 2020 certificate of capacity – he maintains that he expressed his interest in a voluntary redundancy as “I felt I had no better option in the unhealthy and toxic working conditions”;
(h)    he advises that he has “always strived to be diplomatic and non-confrontational in my interactions, particularly with colleagues and managers” – he is not comfortable lodging complaints against others, and did not believe that he needed to do so in order to make the respondent aware of his work issues, when he verbally informed his managers of those issues and documented them in his skills and performance reviews;
(i)    he advises that any concerns about his work performance were never raised with him – indeed, his work performance was praised regularly during his skills and performance reviews;
(j)    he advises that prior to his work issues following the amalgamation, he had not consulted with a psychologist “in years”, and
(k)    he agrees regarding the need for him to complete his own “administrative work” and advises that the “administrative issues in my statement relate only to the additional tasks beyond my regular duties”.
The ARD also contains email and other correspondence involving the applicant, as well as other documentary evidence. Much of this is source material which is summarised and relied upon in the applicant’s statement evidence. I have considered the material, and find the following to be relevant (I will detail any other relevant material if specifically directed to it during the parties’ submissions):
(a)    the email correspondence involving the applicant on 25/31 July 2019, 20/21 August 2019, 27 November 2019, 21/29/30 April and 1 May 2020, 18 May 2020, 1 July 2020, and 18 September 2020 – the contents of which are consistent with the descriptions of that email correspondence as referred to in his statement evidence;
(b)    email correspondence in which the applicant was originally advised on 4 October 2018, 14 January 2019, on 31 January 2019 that the motor vehicle value component of his salary regarding his work vehicle would not be declared to his superannuation fund;
(c)    email correspondence in relation to the hoarding application that the applicant was assisting Berry with in January 2019 – the contents of which are consistent with the applicant promptly replying to email requests regarding outstanding issues with the application;
(d)    correspondence and documentation regarding the complaint notice which the applicant received from the Department of Fair Trading on 8 May 2018 – including Connolly’s 19 March 2018 letter (which led to the complainant lodging the complaint) advising that an interim occupation certificate issued by the applicant contained an omission, and also including the Department of Fair Trading’s advice on 23 August 2018 that it would be taking no further action regarding the complaint;
(e)    the respondent’s letter dated 6 October 2020 advising as to the proposed restructure;
(f)    the applicant’s 25 November 2020 expression of interest for a voluntary redundancy, in which he also requests further negotiation regarding the date of the redundancy, him receiving more severance pay, and him being allowed to keep his work phone and work vehicle – he writes:
“This has been an horrendous and stressful time for me since the redundancy announcement…Also, before that, from after the amalgamation when my workload substantially increased without additional resources provided to me to safely carry out my duties.”, and
(g)    Connolly’s letter to the applicant dated 15 December 2020 (as well as the email from Cooper which forwarded the letter on 17 December 2020) – the letter confirms the applicant’s voluntary redundancy, accepts the applicant’s requests regarding its date and his ability to purchase his work phone, but rejects his request to keep his work vehicle and his request for more severance pay.

The applicant’s claim form (which he signed on 21 December 2020) is found at page 62 of the ARD. In the form, in relation to “What happened and how were you injured?”, the applicant advised – “Developed over time from 2017/2018 due to unreasonable workload, understaffing, longer hours, harassment, false accusations, and unequal/fair treatment (discrimination)”.
In the form, the applicant also advised as to the fact that he has had anxiety for more than 20 years, but:
“In the past, this has never affected my ability to work. However, after the Councils ammalgamated [sic] in May 2016 the work enviroment [sic] changed. Work loads increased and and improper events started to take place which is causing me continuous pain, suffering and anxiety”.
The applicant’s wife (Lucia Verrelli) of 37 years, has also provided a statement, dated 2 May 2024. It is found at page 58 of the ARD. She says that prior to the amalgamation, the applicant was happy and positive, and his general health was good. He had commenced renovations to their house, had no issues with socialising, had hobbies, and assisted with household chores.
She advises that:
“After the amalgamation, my husband's mental health started to decline, at first slowly but then severely. He began working late and coming home later, looking visibly unhappy and drained.”
She says that the applicant “constantly expressed concerns about the work staff shortages, unrealistic deadline, and an excessive workload”. She says that his dispute with the respondent in relation to it not declaring the motor vehicle value component of his salary regarding his work vehicle to his superannuation fund “caused him immense frustration and anger” as well as anxiety. She says that he told her about “being incorrectly accused of committing a work duty failure that he did not commit”, and that the respondent did not assist him with this accusation or correct it. She says that he told her that the respondent ignored his complaints about his excessive workload.
She details an episode on Father’s Day in 2020 when the applicant locked himself in the garage for a number of hours. She also details that she has witnessed the applicant self-harming on at least five occasions. She says that he has withdrawn from social interaction, has distanced himself from family and friends, has become less intimate, has regularly argued with her and others, has failed to complete their house renovations, and has to be reminded to shower, change his clothes, and eat. She also says:
“His demeanor [sic] notably worsened after the amalgamation. He frequently expressed feelings of pressure, stress, despair, and mentioned being harassed and victimised. He seemed constantly on edge and irritable, appearing tired and unhappy. This deterioration, as I explained above also, due to the unhealthy workplace environment, I witnessed the consequences of his mental decline firsthand at home.”

Statement and factual evidence relied upon by the respondent

The respondent relies upon a signed statement from Cole, found at page 87 of the Reply. It was prepared by Brooksight Investigations, following discussions on 30 March 2021 and 18 August 2021 between him and one of its investigators. Brooksight Investigations had been requested to obtain the statement by the respondent’s insurer.
Cole summarises the position of the respondent:
“Council denies that Mr Verrelli was ever taken advantage of, exploited and used for Council’s benefit. Mr Verrelli was an officer of considerable experience, earning a significant salary, employed to complete the reasonable amount of work provided to him in a timely manner, in accordance with legal requirements and his obligations under his Contract of Employment.”
He denies that the applicant’s workload doubled after the amalgamation, and refers to staffing figures that he claims demonstrate that since the amalgamation, there has been “an increase in allocated officers from the former Councils in addition to several engaged consultants to assist with work from early 2018 to 2021”.
He however only commenced his employment with the respondent on 21 May 2018, and was on extended leave from the respondent between February 2019 and July 2019. He advises that Alexander was the applicant’s direct manager both before the amalgamation and after the amalgamation.
He advises that he is not aware of the applicant working extra hours in unpaid overtime as Alexander was responsible for reviewing the applicant’s timesheets. He says:
“If Mr Verrelli needed to work extra hours to keep up with his reasonable workload, it was his responsibility to ensure he had good time management and to also raise the matter with Mr Alexander to set an appropriate workload/workplan and adjust priorities and associated KPI’s as required – to my knowledge, this did not occur.”
He also says that when the applicant took leave,
“…a meeting would have been arranged between he and Mr Alexander to organise a work plan variable on the amount of leave he was taking; following which, Mr Alexander and other team members (or contracted staff) would have ensured that Mr Verrelli’s work would be undertaken in his absence”.
He says that if the applicant required assistance, “he could speak to Mr Alexander regarding the allocation of work; or alternatively he could have come to me, which he did not do”.
He says that he does not recall the meeting between himself and the applicant about three or four months after he was appointed (see paragraph 30 above) but “would have definitely remembered this conversation and I would have raised the matter with Meryl Bishop myself”.
He denies providing the applicant with unrealistic timeframes in which to complete tasks. He says:
“The timeframes given to the team for completion of certain jobs was not done arbitrarily or for statistical KPI purposes as asserted by Mr Verrelli; instead, it was to ensure we met Council’s corporate and legislative requirements and to ensure Council met Customer Service expectations. Where officers do not meet the corporate requirements, escalation of the issues and further complaints result; in addition to an increased workload for other staff – which is what occurred when Mr Verrelli did not complete his jobs in a reasonable time period and other staff had to become involved. Hence the reason from time to time I provided directions for certain work to be completed. Council as an employer can direct and priorities [sic] certain work to be completed, this is not unreasonable.”
He denies that he “applied unnecessary pressure to Mr Verrelli to work faster”, and that he ever told the applicant to take short cuts. He denies that he ever bullied and harassed the applicant, and he says that he never witnessed such bullying or harassment occurring. He confirms that the applicant did not make any complaints regarding being bullied and harassed to complete his work.
He says that to his knowledge, the applicant was not issued with any warning or performance plan even though he “noticed a pattern” over a period of time regarding the applicant taking an excessive period of time to complete tasks. He advises:
(a)    the applicant took between 158 days and 1,141 days to assess and determine development work applications, in relation to the 49 applications allocated to him between 2013 and 2020 – however, there is a government stipulation that the assessments should take no longer than 20 days;
(b)    the majority of the 40 construction certificate applications allocated to the applicant between 2013 and 2020 took over 100 days to complete (including one application that took 807 days to complete) – however, there is a government stipulation that the applications should take no longer than 28 days to complete, and
(c)    “I am aware that irrespective of the hours that Mr Verrelli worked, he frequently remained behind in the completion and submission of his work and his work was never up to date”.
He then deals with certain specific events raised by the applicant, as follows:
(a)    he says he has no knowledge of the superannuation issue raised by the applicant and referred to at paragraph 34(a) above;
(b)    he says that he was not involved in dealing with the complaint notice received by the applicant on 8 May 2018 – see paragraph 34(b) above;
(c)    he says that the hoarding application, in relation to which the applicant was assisting Berry (see paragraph 34(c) above), “fell directly within Mr Verrelli’s expertise and the scope of his role responsibility”;
(d)    he says that his email to the applicant on 25 July 2019 (see paragraph 34(d) above) was not unwarranted as he would otherwise have “abrogated my responsibilities as manager and there was a potential risk for litigation, and other complaints”;
(e)    in relation to the email correspondence between the applicant and Alexander on 29/30 April 2020 and 1 May 2020 (see paragraphs 34(i), 34(j) and 34(k) above), he says that Alexander’s emails were justified as the relevant application should have been determined within 14 days but had taken the applicant three months – he also says that as a result of the email correspondence, on 4 May 2020, he directed Alexander to have a discussion with the applicant in the presence of Cooper “as the way Mr Verrelli responded to a simple request to priorities [sic] a single application could not continue to occur”, and
(f)    he says the proposed restructure resulted from a series of auditor reviews and a “UTS industry review” – the respondent was changing its focus to low-level density development and therefore only required two of its six senior building surveyors – its staff were informed about the proposed restructure during a presentation on 7 October 2020 and they were invited to ask questions and provide feedback – he says that the applicant decided to accept a voluntary redundancy as part of the proposed restructure, which was negotiated with Cooper – he says that he was not directly involved in that process.
The respondent otherwise only relies upon a signed statement from Cooper, found at page 106 of the Reply. It was prepared by Brooksight Investigations, following discussions on 30 March 2021 and 20 August 2021 between her and one of its investigators. Brooksight Investigations had been requested to obtain the statement by the respondent’s insurer.
Cooper is the respondent’s human resources business partner. She confirms that the applicant did not lodge any complaints or formal grievances alleging bullying or harassment, with the respondent.
She also confirms:
(a)    Alexander informed her that he wanted to deal with the applicant informally, following Cole’s direction on 4 May 2020 – see paragraph 54(e) above;
(b)    she was asked by Cole and Alexander to “check-in” with the applicant following his discussions with Bishop on 18 September 2020 (see paragraph 34(o) above) – she considered the request to be “a wellness check” and she telephoned the applicant asking him whether there was any “advice or support I could offer him in general” – the applicant complained to her about his high workload – she denies saying that he needed to learn to deal with management requests, and she advises that the conversation was a calm one during which the applicant did not appear to be upset – she offered him support in developing work strategies but he was not receptive – she reminded him that he had access to the respondent’s Employee Assistance Program;
(c)    she cannot comment upon the superannuation issue raised by the applicant and referred to at paragraph 34(a) above, or the complaint notice received by the applicant on 8 May 2018 and referred to at paragraph 34(b) above;
(d)    she received the applicant’s expression of interest for a voluntary redundancy (see paragraph 36(f) above) on 25 November 2020 – she says that the applicant then took sick leave on 26 November 2020 and on 2, 7, 9, 14, 15, and 16 December 2020 – she therefore sent him an email on 17 December 2020 requesting a meeting (which she received no reply to), so she sent him another email on 17 December 2020 with his voluntary redundancy approval letter and an explanation regarding the requests that he had made with his 25 November 2020 expression of interest, and
(e)    she telephoned the applicant on the afternoon of 17 December 2020 after she had sent her emails, and she denies sounding annoyed or aggressive, or putting pressure upon him regarding the timing of his redundancy, during that telephone conversation.
The Reply also contains email and other correspondence involving the applicant, as well as other documentary evidence. Much of this evidence either is source material which is summarised and relied upon in the statement evidence of Cole or Cooper, or has already been detailed at paragraph 36 above. I have considered the material, and find the following to be relevant (I will detail any other relevant material if specifically directed to it during the parties’ submissions):
(a) there is email correspondence from Cooper on 22 September 2020 in which she details (consistently with her statement evidence) her telephone conversation with the applicant on 18 September 2020 – Bishop then replies to that email correspondence (copying in Cole and Alexander also) by thanking Cooper for “checking in on Rocco with the aim of trying to assist him with the concerns and frustrations he is feeling as a result of the service delivering requirements I have asked for, which are not unrealistic”, and by asking Cole and Alexander to discuss the applicant’s leave requirements with him and then provide her with an outline of “what this means for his work program” – she was concerned about the regular leave that he wished to take which “cannot be helping with delivering his work load and meeting the ‘stats’”.

Medical evidence relied upon by the applicant

The applicant relies upon evidence from his current treating psychiatrist, Dr Jacobson. The doctor has provided a report to his solicitors dated 20 June 2022 (found at page 110 of the ARD).
The doctor says that (up to the date of the report) he had treated the applicant on over 40 occasions since March 2016. Referring to the applicant’s work with the respondent, he says – “When I first met him he said that he liked his work”.
The doctor says that the applicant had had depression since at least his early 30s, and it had gradually gotten worse, and involved suicidal ideation at times. Medication had assisted to varying degrees.
The doctor outlines the applicant’s complaints to him in relation to his work situation:
(a)    April 2019 – “for the first time he mentioned that he had an increasingly high work load at the council, which was very stressful, and he was grinding his teeth during the day”;
(b)    July 2019 – “he said he was not too bad but he described stress at work”;
(c)    November 2019:
“…he spoke extensively about his difficulty with work, feeling marked stress and pressure that was impacting on him…He was having to work longer hours…He felt overloaded, becoming irritable and stressed at home, and was going to speak to the union as ‘this had been going on for two and a half to three years’”;
(d)    December 2019 – “he looked down, tired and anxious…I was concerned about how slow and overwhelmed he seemed”;
(e)    February 2020 – “He was very tired, vague, struggling to keep his eyes open, struggling with low motivation”;
(f)    April 2020 – “He complained about an ongoing very high work load, excessive accountability, difficulty with a lack of equipment at home and having a critical manager”;
(g)    May 2020:
“…he said that despite having emailed his management, there was ongoing high pressure, high expectations and extra hours…He said that he was being sent pushy or rude emails from work…He said that his function was fine, - that they had never said otherwise, but they were asking him ‘to say things had been done that hadn’t so that the statistics look good’ or to do things quicker and not thoroughly…He was feeling overwhelmed…His anxiety was high, his depression was okay at that point in time, he was mentally exhausted”;
(h)    June 2020 – “I saw him with his wife and they described him having a very low mood, being overwhelmed and overloaded, struggling to cope, with low motivation, low energy, possibly some cognitive difficulty”;
(i)    7 December 2020:
“…he said that he had been told he would be made redundant but ‘was still getting smashed at work’, working long hours, ‘feeling harassed and threatened with excessive demands’ and unreasonable work load…He stated that they wouldn’t give him leave, and that ‘he was treated like dirt’…He had had to take a week off work due to being panicky and overwhelmed. He believed that ‘they were trying to find things that he did wrong so that they could sack him’. He was dreading having to go to work and very anxious about the future. He said that work had got worse and worse since it had amalgamated. His sleep was worse, he was exhausted, emotionally drained and cutting off from others. At that time I wrote a letter to his work saying that he was more anxious and overwhelmed with work stress than I had ever seen him before and I was concerned about him developing an irreversible anxiety and depression secondary to work”, and
(j)    25 January 2021 – “he said he had left work on 16 December 2020…He was agitated, on edge, very anxious and labile in his moods…He was ‘freaked out’ at the idea of returning to work…This was exacerbating his depression”.
The doctor then outlines further consultations with the applicant in 2021 and 2022, during which the applicant complained regularly of issues regarding the management of his workers compensation claim and how those issues were affecting him psychologically. The doctor records variously that the applicant was irritated and agitated; felt hassled, pressurized and overwhelmed; had variable sleep, mood and capacity to function; was socially isolated; had low energy and poor concentration; had nightmares about work; was easily triggered, and had panic attacks.
The doctor summarises his opinion as follows:
“Mr Verrelli had a pre-existing Major Depression of Moderate Severity in Partial Remission. This was long standing, ie of many years of duration, prior to seeing me and continued while seeing me. It waxed and waned in severity, and was associated with high anxiety which also fluctuated…His presentation changed from late 2019, with a new focus from him on his perceived workplace stress, which continued from then. This was associated with an exacerbation in anxiety and agitation. He persistently described being overwhelmed. There were new concerns from his wife. Both his anxiety and depression were worse in 2020 compared with previously. He has always had a marked ability to contain his emotions, but these became uncontainable from late 2020…Since leaving work, over 2021 and 2022 his presentation again has been different, with marked agitation and more severe depression and anxiety. He has also had symptoms of Post-Traumatic Stress Disorder with overwhelm, being triggered, irritability, nightmares and marked anxiety…I consider that his capacity to cope socially, to function at work, to concentrate, his mood lability, his capacity to cope with stress, his degree of anger have all declined significantly. This is secondary and temporally associated with workplace stress. I have not seen him presenting in this way, with features of PTSD as he has over the past year and a half…While he did have a pre-existing Major Depression of Moderate severity in Partial Remission, there was a marked exacerbation, and additional features of PTSD. These clearly arose as a result of overwhelm and agitation due to the workload and a sense of mistreatment, injustice and being trapped at work. His symptoms were quantitatively and qualitatively different from late 2019.”
The doctor diagnoses the applicant with major depression and features of post-traumatic stress disorder. He considers that the applicant needs ongoing psychotherapy and medication, and has no capacity for work.

The ARD also contains a number of reports from Dr Jacobson to the applicant’s treating general practitioner, Dr Marinucci, dated between 4 April 2016 and 22 September 2021 (from page 147), as well as the clinical file (which is mostly handwritten) provided by the doctor and referencing the period between 17 March 2016 and 22 July 2021 (from page 166). I have considered this evidence and will detail it further if specifically referred to aspects of it during the parties’ submissions. In my opinion, the various reports are consistent with the histories and findings referred to in the doctor’s 20 June 2022 report to the applicant’s solicitors. In this regard, the reports refer to the doctor’s ongoing treatment of the applicant prior to becoming aware of the applicant’s workplace stressors, and they then refer to the ongoing history that the doctor obtained from the applicant regarding those stressors. Specifically, there is a report dated 7 December 2020, which advises:
“I have been seeing Mr Verrelli for many years. He is currently presenting more anxious and overwhelmed with work stress than I have ever seen before. For the last-year he has been increasingly anxious, describing being overloaded with work, doing very long hours, being harassed if he cannot do all the jobs and spoken and treated critically. This is having an effect on his mental health and I am concerned about this becoming increasingly severe. I have also seen patients who develop irreversible illness after this type of stress.”
There is also a report dated 21 December 2020, which advises:
“I saw Rocco on 7 December. He presented markedly agitated which has been a repeated theme now for much of the last year, about being overloaded with unreasonable expectations, harassment and criticism at work. He is dreading having to go to work, sleeping poorly, feels that he is ‘being smashed’, is exhausted, drained and cutting off from others.”
The applicant also relies upon evidence from another treating psychiatrist of his, Dr Saker. The ARD contains a number of reports from the doctor to the applicant’s treating general practitioner, Dr Marinucci, dated between 15 October 2015 and 28 February 2024 (from page 116) as well as the clinical file provided by the doctor and referencing the period between 9 December 2010 and 24 November 2023 (from page 214). Having considered this evidence, I note the following (and will detail other aspects of this evidence if specifically referred to them during the parties’ submissions):
(a)    on 15 October 2015, Dr Saker found the applicant to have a worried affect and an anxious mood – however, his judgement and insight were good and he had no thought disorder – his medication was continued;
(b)    on 4 December 2015, the applicant remained anxious but was not depressed – his mood was good;
(c)    on 22 November 2016, Dr Saker found the applicant to have a nervous affect and a “crap” mood – however, his judgement and insight were good and he had no thought disorder – his medication was continued;
(d)    on 2 May 2017, Dr Saker noted that the applicant was “struggling at home and at work” - he had a flat affect and a depressed mood, but his judgement and insight were good and he had no thought disorder – his medication was continued;
(e)    on 9 August 2017, Dr Saker noted that the applicant was “remaining calm at work” - his mood was good, he had no thought disorder, and his judgement and insight were good, but he did have anxious thought content – his medication was continued - the applicant then presented similarly to Dr Saker on 7 February 2018;
(f)    on 9 August 2018, Dr Saker found the applicant to have a tense affect and a mood that was “better now but bad recently” – however, his judgement and insight were good and he had no thought disorder – he had recently undergone transcranial magnetic stimulation treatment;
(g)    on 6 September 2018, the applicant presented similarly to Dr Saker, the doctor then describing his affect as bewildered and his mood as “up and down”;
(h)    on 3 December 2018, the applicant presented similarly to Dr Saker, the doctor then describing his affect as reactive and his mood as “alright, calm”;
(i)    on 12 March 2019, the applicant presented similarly to Dr Saker, the doctor then describing his affect as tense and his mood as “stressed” – he had anxious thought content and advised that he had been under stress at work since the amalgamation due to “fewer staff and more work” – the doctor advised him to “limit his work”;
(j)    on 9 August 2019, the applicant advised Dr Saker as to having “ups and downs” and high anxiety in the mornings – his mood however was “OK”;
(k)    on 16 December 2019, Dr Saker recorded that the applicant was still overwhelmed at work, had pressure on him at work, and high expectations on him at work – he had days of higher anxiety but was sleeping well – he had a flat affect and his mood was “plodding along”;
(l)    on 15 June 2020, Dr Saker recorded that the applicant was overworked and under supported at work and felt harassed – he had difficulties concentrating, a tense affect, and an “overwhelmed” mood;
(m)     on 28 September 2020, Dr Saker recorded that there had been no improvement with the applicant’s workplace difficulties – he diagnosed a severe treatment-resistant major depressive disorder with anxious distress;
(n)    on 2 December 2020, the applicant reported to Dr Saker that he had been “not too good” in terms of anxiety – the doctor recommended to the applicant that he accept the voluntary redundancy offered to him and “get out of his current workplace”;
(o)    on 21 January 2021, Dr Saker found the applicant to have an anxious affect and an upset mood;
(p)    on 20 April 2021, Dr Saker found the applicant to have a tense affect and an angry mood – he had negative and anxious thought content;
(q)    on 30 July 2021, Dr Saker found the applicant to have a flat affect and an “overwhelmed and hopeless” mood;
(r)    on 1 October 2021, Dr Saker found the applicant to have a harried affect and an anxious and depressed mood – he had negative, anxious and angry thought content;
(s)    on 22 April 2022, Dr Saker recorded that the applicant had been experiencing deep depression, and was totally exhausted with no energy;
(t)    on 29 July 2022, Dr Saker recorded that the applicant had a panic attack earlier on that day;
(u)    the applicant also consulted Dr Saker on 13 September 2022, 28 October 2022, 25 January 2023, 10 May 2023, 14 August 2023, and 24 November 2023 – his anxiety is recorded as continuing, and it is recorded that he is easily triggered, overwhelmed, and panicky – anger and irritation are also noted, and
(v)    in a report to the applicant’s solicitors dated 28 February 2024, Dr Saker advises that he has been treating the applicant since 9 December 2010, and he diagnoses the applicant with a major depressive disorder with anxious distress – he opines:
“He had background depression, which was being reasonably well managed until his workplace was part of council amalgamations and he became over worked leading to a decline in his depression which prevented him from working and from which he has never recovered…He was unfairly overworked and micro-managed at George’s River Council and can provide details of this…He had underlying Major Depressive Disorder, which was significant worsened by work-related problems at George’s River Council leading to a decrease in work function and loss of his vocation…He is totally incapacitated for work. He was previously working very effectively. His incapacity has been caused by a worsening of his psychological condition”.
There are three reports in the ARD from the applicant’s treating psychologist, Dr Pignatoro. In a report dated 15 November 2021 (found at page 212 of the ARD), the doctor diagnoses the applicant with developing a moderate depressive episode, panic disorder and somatisation disorder. He required long-term intervention. In relation to history, the doctor records:
“Rocco reported a detailed account of work conditions and the accumulated effect of having endured difficult work conditions. Since finishing up at work, he has been unsettled and uncomfortable with his new norm of staying at home. He reported to me of ruminating about the job, the lack of respect in the job and being socially isolated when he was working. He reported that the bully [sic] and harassment that he endured was overwhelming.”
In a report to the applicant’s solicitors dated 2 August 2022 (found at page 145 of the ARD), Dr Pignatoro advises that he consulted with the applicant on 17 occasions between 21 October 2021 and 14 July 2022. The doctor records that the applicant immensely enjoyed his work as a building surveyor, which he took “seriously and with great interest”. However, following the amalgamation, he experienced a “significant upload of work”. The doctor describes the doctor’s treatment of the applicant, which has resulted in him being “less reactive in mood and anxious”. However, the applicant is still affected by preoccupation about the future, negative feelings about the respondent, sleep disturbance, intrusive thinking, poor concentration, and social isolation.
In a report dated 16 May 2023 (found at page 213 of the ARD), Dr Pignatoro updates the applicant’s progress:
“Rocco remains unchanged in mood state and functioning. He remains affected by the past work dealings and the long term concerns with bullying and discrimination that he endured over a period of seven years. While he was being treated for depression, he continued to work before and after any council merger. He has had to manage increased workload with reduced manpower. He remains compromised in mood state and outlook and functioning is limited.”
There are a significant number of certificates of capacity in the ARD (found from page 297) issued by the applicant’s treating general practitioner, Dr Marinucci. The certificates are consistent in referring to a diagnosis of “Anxiety Depression Work Related”, and they cover the period between 16 December 2020 and 19 August 2024. The only certificate to otherwise comment regarding causation is the first certificate dated 16 December 2020, which records – “overloaded with work…long hours at work…harassment if cannot do all the work”.
The ARD also contains the clinical file provided by the applicant’s treating rheumatologist, Dr Tong. Most of this evidence is not particularly relevant to the causation issues which I need to determine regarding the applicant’s psychological condition, but I do find a passage from the doctor’s 9 November 2020 report to be important:
“He has had some extra stress in his life, as you know there has been stress related to work, and they have announced that he will be made redundant along with the rest of his department likely to stop work in early January. We talked about this for a while, and I agree with him that actually this is a positive thing for him.”
Finally, the ARD contains a report from a medico-legal specialist qualified by the applicant’s solicitors, Dr Rastogi, dated 19 October 2022 (found at page 96).
The doctor obtains a history from the applicant of no work issues prior to the amalgamation. After the amalgamation however, his workload increased, resulting in “excessive work pressures and unrealistic timelines”. He complained to the respondent about his workload and staff shortages, but only casual and temporary staff were employed from time to time, which he had the responsibility of training, thus consuming more time with his. His work targets were not achievable, but there was constant pressure by management to finish tasks. He felt intimidated, overwhelmed, alienated, trapped and hopeless, and he became anxious and distressed. He was “constantly bullied and harassed”.
The doctor then obtained specific histories regarding the events referred to by the applicant at paragraphs 34(a) and 34(b) above. She records:
“He came to breaking point in 2021, given he was pushing and pushing himself for about four years. He stated that he constantly felt ambushed, alienated and unsupported throughout his employment by his employer and the workplace was very toxic over time. His mental health spiralled downhill and he depleted his emotional reserves. He left work in December 2020. He walked out of work as he was at breaking point. He saw his GP who initiated workers compensation.”
The doctor records the applicant’s symptoms as insomnia, panic attacks, amotivation, fears and ruminations about work, loss of confidence, loss of self-esteem, pessimism about the future, social isolation, self-doubt, feelings of worthlessness, feelings of helplessness, overwhelming anxiety, poor concentration, and irritability.
The doctor also records that the applicant has a long history of depression and anxiety since 2003, in relation to which he had residual symptoms, he had undergone transcranial magnetic stimulation, he was taking medication, and he was consulting with Dr Saker. However, he “continued functioning”.
The doctor undertakes a mental state examination and reviews documentation provided to her from Drs Jacobson, Saker and Bisht. She diagnoses the applicant with an exacerbation of a refractory severe major depressive disorder with anxiety. She opines that despite his long-standing history of refractory depression and severe anxiety, he maintained stable work as a senior surveyor until the amalgamation. She then opines:
“He reported work associated stressors since 2016 with amalgamation with excessive unrealistic workload, staff shortages, undue pressures and increased responsibilities. He was discriminated against and false accusation were made that tarnished his reputation. He was subjected to humiliation, excessive workload with minimal support, constantly making working conditions extremely challenging. He persevered over a period of four years and his anxiety heightened with a sense of despair and panic. His psychiatrist highlighted work related issues contributing to his exacerbation of anxiety and depression in 2020…He was unable to work in December 2020 and remains debilitated by severe anxiety and depressive cognitions to date. Given his refractory depression and exacerbation he is functionally decompensated and holds a poor prognosis…His employment is the main and substantial contributing factor to his psychological aggravation and deterioration and was caused by way he was treated with disrespect and never provided support. This has been well established in regard to causation in the reports of his treating psychiatrist and psychologist. It was the series of events in 2016 in his employment where he was subjected to alienation, exclusion, criticised and hostile interactions took place, and he raised grievances that were dismissed. This led to deterioration of anxiety and decline in his mental state.”
The doctor advises as to a guarded prognosis, and certifies the applicant as being totally incapacitated for work. She assesses his permanent impairment at 19%.

Medical evidence relied upon by the respondent

The respondent largely relies upon reports obtained from a medico-legal specialist qualified by it, Dr Bisht. The doctor’s first report is dated 16 February 2021 and found at page 117 of the Reply.
The history obtained by Dr Bisht includes:
(a)    the applicant being “one person doing double and triple the amount of work” following the amalgamation;
(b)    staff not being replaced;
(c)    the applicant working longer hours to keep up-to-date;
(d)    the applicant having a manager who was only interested in statistics – “there was additional pressure to get things done quicker, and not properly”;
(e)    the applicant being accused of “not having work ethics”, which resulted in him being reported to the Department of Fair Trading when the “general manager wrote a letter that I had made a mistake with issuing an occupation certificate” - which seems to be a reference to the events referred to by the applicant at paragraph 34(b) above;
(f)    the applicant’s complaints about overwork and short staffing being ignored;
(g)    the events referred to by the applicant at paragraph 34(a) above;
(h)    the applicant being sent incorrect files, and
(i)    documents being misplaced.
Dr Bisht is told by the applicant that his symptoms started a few months after the amalgamation and gradually increased in intensity, so that he needed to stop working in December 2020 “as the symptoms were too intense for him to be able to continue”. The symptoms included ruminations about his workplace stressors, anxiety, lack of enjoyment, lack of motivation, sleep disturbance, difficulties concentrating, and a persistent flat or irritable mood. He sought treatment from Drs Saker and Jacobson.
The doctor records that when he asked the applicant about his work intentions, the applicant advised – “They have retrenched me…They retrenched me 1 or 2 days after I went on workers compensation, but I am still on their books…They have retrenched me to finish off in July”.
The doctor also records that the applicant had a past history of depression, controlled by medication (Parnate). The applicant advised him that “everything went back to normal” and he no longer felt depressed or anxious, once he commenced that medication.
The doctor then undertakes a mental state examination of the applicant, and finds no signs of exaggeration, malingering, inconsistency, or unreliability. The doctor diagnoses the applicant with a psychological or psychiatric condition, being an adjustment disorder with mixed anxious and depressed mood.
In relation to causation of the condition, the doctor sees the applicant’s past history of depression as only a “minor contribution to his current state”. He considers that employment events materially contributed to the condition, and opines:
“Based on the information provided by the worker, his psychiatric condition was not predominantly caused by employer action with respect to transfer, retrenchment and/or dismissal of workers and/or the provision of employment benefits to workers. As per the information provided by him, his symptoms had started prior to these actions taken by the council, and the letter from his psychiatrist supports that.”
In the doctor’s opinion, the applicant requires ongoing psychological treatment, and is currently totally incapacitated for any type of work “due to the severity of his symptoms”.
Dr Bisht’s second report is dated 9 December 2021 and found at page 160 of the Reply.
The doctor records that the applicant’s symptoms are similar to when the doctor first consulted with him (see paragraph 82 above). On mental state examination, the doctor finds the applicant’s affect to be of anxious quality and restricted. He focused on apprehension about the future, and his short-term memory was somewhat impaired. The doctor finds no signs of exaggeration, malingering, inconsistency, or unreliability.
The doctor now diagnoses the applicant with a major depressive disorder, considering the duration of his symptoms. The doctor acknowledges (after reviewing medical records of the applicant’s between 2010 and 2021 sent to him by the respondent’s insurer, from Dr Marinucci, Dr Saker and The Bankstown Clinic) that prior to the onset of his work-related psychological condition, he did have a pre-existing psychological condition which had a substantial impact on his functioning. However, he opines:
“The employment has been the main contributing factor to aggravation of the pre-existing psychiatric condition, as –
·There were not any non-work related psychological stressors, around the time of the exacerbation, which would account for being the main contributing factor.
·There is no significant contribution from any medical conditions or any medications or any substances of abuse.”
The doctor is then asked by the respondent’s insurer to specifically opine as to causation of the applicant’s psychological injury with reference to the grounds referred to in s 11A of the 1987 Act. Without any further explanation or comments, the doctor advises:
“Assuming that the evidence of the Council’s witnesses will be broadly preferred to the evidence of the worker on significant matters of factual dispute, the worker’s condition is predominantly caused by transfer (relating to the amalgamation), retrenchment (being told his position at the Council would be made redundant and employment benefits to workers (relating to Council's actions and offers connected with the redundancy package and severance payment).”

Dr Jacobson also does not specifically record the applicant’s voluntary redundancy process as causative of his psychological injury. He records the applicant complaining of a high workload with the respondent from April 2019, and of his presentation changing from late 2019 due to workplace stress. His 7 December 2020 and 21 December 2020 reports (see paragraph 66 above) refer to the applicant as having for a year become increasingly anxious due to being overloaded at work, working long hours, and being harassed and treated critically. The doctor describes the applicant’s complaints in this regard as a “repeated theme now for much of the last year”. Further, in the doctor’s report to the applicant’s solicitors (see paragraph 64 above), he expresses his opinion that there has been a marked exacerbation in the applicant’s pre-existing psychological condition from late 2019, which “clearly arose as a result of overwhelm and agitation due to the workload and a sense of mistreatment, injustice and being trapped at work”.
Dr Rastogi is also clear in her opinion (see paragraph 78 above) that the applicant’s employment with the respondent is the main contributing factor to the aggravation of his psychological condition. She refers to causative factors since the amalgamation in this regard as being an excessive and unrealistic workload with minimal support, staff shortages, pressures at work, increased work responsibilities, a false accusation which tarnished his reputation (Connolly’s comments regarding the occupation certificate which he issued on 15 July 2015), and being treated with disrespect. She does not refer to the applicant’s voluntary redundancy process as being a causative factor.
Otherwise, overwork and “harassment if cannot do all the work” are the causative factors mentioned in the applicant’s general practitioner’s first certificate of capacity dated 16 December 2020 (see paragraph 72 above), and Dr Pignatoro (see paragraph 70 above) refers to “past work dealings and the long term concerns with bullying and discrimination that he endured over a period of seven years” (although not factually correct as to the relevant period).
In the circumstances, I am satisfied that there is an abundance of medical evidence (and in fact no medical evidence to the contrary) that the applicant’s employment with the respondent was the main contributing factor to the aggravation, acceleration, exacerbation, or deterioration of his pre-existing psychological condition. He has suffered a psychological injury in this regard in accordance with s 4 of the 1987 Act.
I am also satisfied that the applicant’s increased workload since the amalgamation, together with the other matters mentioned in his statement evidence and summarised at paragraph 139 above, were causative factors in this aggravation, acceleration, exacerbation, or deterioration.

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 transfer, retrenchment, dismissal, and/or provision of employment benefits

Section 11A of the 1987 Act reads as follows:
“(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent bears the onus of proof in establishing its defence under s 11A of the 1987 Act: Pirie v Franklins Limited [2001] NSWCC 167 and Department of Education and Training v Sinclair [2005] NSWCA 465.
In Manly Pacific International Hotel Pty Limited v Doyle [1999] NSWCA 465 (Doyle), Fitzgerald JA said at [4]:
“Before this Court, it was not disputed that Mr Doyle's employment was a substantial cause of his psychological injury. That being so, the Compensation Court was required to decide whether (i) the whole or predominant cause of Mr Doyle's psychological injury was the appellant's action with respect to Mr Doyle's transfer from one position to another, and, (ii) if so, whether the appellant's action with respect to Mr Doyle's transfer was reasonable.”
The respondent’s defence to the applicant’s claim is that the actions that it took regarding the applicant’s voluntary redundancy process were the whole or predominant cause of his psychological injury, and that those actions were reasonable. They were actions taken by it with respect to retrenchment, dismissal, and/or provision of employment benefits. While the respondent (in its notice pursuant to s 78 of the 1998 Act) also included the ground of ‘transfer’ as a ground that it sought to rely upon, I do not see how the voluntary redundancy process can be referred to as a transfer. Certainly, the respondent made no submissions in this regard.
My interpretation of the reasoning in Doyle is that I need to determine the first issue raised by Fitzgerald JA before determining the reasonableness of the respondent’s actions. I believe that this interpretation is consistent with the decision of Wood DP in Insurance Australia Group Services Pty Limited v Outram [2019] NSWWCCPD 44 (Outram). For the reasons that follow, I do not intend to determine the reasonableness of the respondent’s actions regarding the applicant’s voluntary redundancy process, as I will be determining the first issue raised by Fitzgerald JA in favour of the applicant.
In relation to whether the whole cause of the applicant’s psychological injury was the respondent’s actions regarding the applicant’s voluntary redundancy process, I am satisfied that there were a number of other causes or events involved, as discussed above at paragraphs 161 and 139. I have already found these events to be causative of the injury.
In relation to whether the predominant cause of the applicant’s psychological injury was the respondent’s actions with regard to the voluntary redundancy process, in Ponnan v George Weston Foods Limited [2007] NSWWCCPD 92, Handley ADP considered the phrase ‘predominantly caused’ and interpreted it according to its dictionary meaning of ‘mainly or principally caused’. That interpretation has been approved on multiple occasions since: see Temelkov v Kemblawarra Portugese Sports and Social Club Limited [2008] NSWWCCPD 96 and Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
In Outram, Wood DP said:
“The fact that there were other incidents that contributed to the injury is not sufficient to negate the possibility that certain actions, described by the Arbitrator as having made a ‘major’ contribution to the injury, could not be the predominant cause. Whether an action is a predominant cause must be ascertained by weighing the evidence of the effect of each of those incidents on the respondent’s psyche and the consequences that flowed from the incident. In many cases, medical evidence in respect of causation is required. As observed by Candy ADP in ISS Property Services Pty Ltd v Milovanovic, what is required is a comparison between all of the employment related contributions to the injury and those contributions that resulted from reasonable actions by the employer in respect of discipline, transfer, or other actions specified in s 11A(1).”
A comparison is therefore required between the effect of the voluntary redundancy process upon the applicant’s psyche and the effect upon that psyche of the other real work events that I have found occurred and were causative (as referred to at paragraphs 161 and 139 above).
The applicant certainly does not consider the voluntary redundancy process to be causative to his psychological injury. His lengthy statement evidence concentrates upon workload issues, pressure issues, and his interactions with other employees of the respondent’s, especially Alexander. When he mentions the redundancy process (see paragraph 34(s) above), he concentrates upon it in the context of his workload and pressure increasing due to the need to complete work before he was made redundant. He then says that (see paragraph 34(t) above) he applied for the voluntary redundancy as he considered that it was in his best interests to leave the employ of the respondent. He says (see paragraph 35(g) above) that he had “no better option” because of his “unhealthy and toxic working conditions”. His 25 November 2020 letter (see paragraph 36(f) above) certainly requested the redundancy pursuant to favourable terms, and it is conceivable that when some of those terms were rejected (which he became aware of on 17 December 2020, not 15 December 2020), his stress levels would have increased. However, he had already left work and obtained a certificate of capacity from his general practitioner (on 16 December 2020 - see paragraph 34(u) above) prior to being informed about the rejection of some of the terms.
It is also worthy of noting that although the 25 November 2020 letter advises that the applicant has experienced an “horrendous and stressful time” since the redundancy announcement, it specifically refers to the “horrendous and stressful time” also being “before that, from after the amalgamation when my workload substantially increased without additional resources provided to me to safely carry out my duties”.
Apart from the records of the applicant’s treating medical practitioners, the most contemporaneous record regarding the applicant’s concerns in December 2020 is his claim form, which is discussed at paragraphs 37-38 above. That claim form does not mention the voluntary redundancy process, but is specific in its recording of an unreasonable workload, understaffing, working long hours, harassment, false accusations, and unfair treatment.
The significance of the applicant’s voluntary redundancy process in the causation of his psychological injury is also undermined by:
(a)    it is not mentioned as having an effect upon the applicant in his wife’s statement evidence – which specifically mentions (see paragraph 41 above) the applicant’s excessive workload, and unrealistic deadlines for his work, as well as the applicant’s superannuation issue and his Department of Fair Trading complaint;
(b)    it can be inferred from the applicant’s wife’s statement evidence that she would have considered the voluntary redundancy to be a positive move for the applicant having regard to how she had witnessed him being psychologically affected since the amalgamation - in this respect, the applicant also advises in his statement evidence (see paragraph 34(t) above) that following discussions with his doctors and his family, he realised that a voluntary redundancy was in his best interests due to his “toxic” work environment with the respondent;
(c)    Dr Saker (see paragraph 67(n) above) advises the applicant on 2 December 2020 that he recommends the voluntary redundancy to the applicant so that the applicant can “get out of his current workplace”, and
(d)    the applicant’s treating rheumatologist (Dr Tong) discusses the voluntary redundancy with the applicant on 9 November 2020 (see paragraph 72 above) and advises that he agreed with the applicant’s position that the redundancy was “a positive thing for him”.
The above evidence leads me to the conclusion that rather than being a stressful experience for the applicant, the voluntary redundancy was considered and hoped to be a relieving experience for him.
The statement evidence relied upon by the respondent also does not suggest that the applicant’s voluntary redundancy process was a stressor for him. Cole says that he was not directly involved in the process (see paragraph 54(f) above), and Cooper does not mention any complaints made to her by the applicant that the redundancy process was stressful to him.
In now considering the medical evidence presented by the parties, I have considered Hamad v Q Catering Limited [2017] NSWWCCPD 6, 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.”
As indicated earlier, I have determined to place significant weight upon the opinions of Drs Saker and Jacobson, due to their extensive knowledge of the applicant’s psychological condition. Neither of these doctors (either in the reports that they provided to the applicant’s solicitors, or in the reports that they provided to the applicant’s treating general practitioner from time to time following consultations) refer to the applicant’s voluntary redundancy process as being a stressor to him.
Instead, the reports from Dr Saker to the applicant’s treating general practitioner refer to his stress from overwork and work pressure, regularly and consistently after 12 March 2019. The reports from Dr Jacobson to the applicant’s treating general practitioner likewise refer to this stress from overwork and work pressure, regularly and consistently after April 2019.
I find Dr Jacobson’s reports dated 7 December 2020 and 21 December 2020 (see paragraph 66 above) to be particularly important in this regard. The reports refer to the worsening of the applicant’s psychological condition, describing him as “presenting more anxious and overwhelmed with work stress that I have ever seen before” and “markedly agitated”, but the worsening of the condition is not put down to any voluntary redundancy process, but rather “a repeated theme now for much of the last year” of overwork, working long hours, being spoken to critically, and being harassed.
Temporally, these two reports fall either side of the date when the applicant last worked on 16 December 2020, and are therefore the most contemporaneous recordings (together with the certificate of capacity dated 16 December 2020 which refers to work overload, long hours at work, and harassment) of the complaints being made by the applicant to his treating medical practitioners regarding his stressors at the time when he was unable to continue working.
Dr Jacobson’s report to the applicant’s solicitors (see paragraph 64 above) also clearly supports the causal relationship between the applicant’s psychological condition and his “overwhelm and agitation due to the workload and a sense of mistreatment, injustice and being trapped at work”, rather than any causal relationship between the condition and his voluntary redundancy process. This opinion is entirely consistent with the opinion in Dr Saker’s report to the applicant’s solicitors (see paragraph 67(v) above), as well as the opinions in Dr Rastogi’s report (see paragraphs 75 and 78 above).
In fact, Dr Bisht is the only medical practitioner to suggest a causative role for the applicant’s voluntary redundancy process in the development of his psychological injury. As indicated earlier however, I do not intend to accept his opinion in preference to the opinions expressed by specifically Drs Jacobson, Saker, and Rastogi.
Apart from Dr Bisht differing in his opinion with those expressed by the applicant’s treating medical practitioners, I also see the following issues with Dr Bisht’s opinion:
(a)    the doctor initially obtained a history from the applicant consistent with the applicant’s statement evidence (which I have accepted) and on this basis, concluded (see paragraph 86 above) that the applicant’s psychiatric condition was not predominantly caused by the respondent’s action with regard to transfer, retrenchment, dismissal, or provision of employment benefits;
(b)    the doctor only changed his opinion in this regard on the assumption that “the evidence of the Council’s witnesses will be broadly preferred to the evidence of the worker on significant matters of factual dispute” – as earlier discussed (see paragraph 153 above), I have determined that there are no significant matters of factual dispute, having regard to my acceptance of the applicant’s statement evidence and my analysis of the statement evidence relied upon by the respondent;
(c)    as a result, the evidence that I have accepted supports the opinion of the doctor referred to at paragraph 86 above rather than the opinion referred to at paragraphs 91 and 96 above;
(d)    in his third report, the doctor (see paragraph 96 above) sees as significant “the timeline of development of symptoms” and understands that “notably” [my emphasis] the applicant received a letter in relation to his redundancy on 15 December 2020 and then ceased work on 16 December 2020 – in reality, as confirmed by the applicant and Cooper (see paragraph 57(d) above), the applicant did not receive that letter until 17 December 2020, after he had left work and obtained a certificate of capacity from his treating general practitioner, and
(e)    the doctor’s argument seems to be (see paragraph 96 above) that other work stressors may have led to psychological symptoms for the applicant prior to December 2020, but the presence of those stressors does not indicate the presence of a psychiatric condition, which is otherwise “established by a combination of causative events with symptoms that are causing a significant impact on functioning in various domains” – the applicant’s decline in functioning only manifested itself after 15 December 2020 (when the doctor mistakenly believed the applicant received a letter in relation to his redundancy) – aside from the doctor’s mistake in this regard, and even accepting a causative role for the applicant’s voluntary redundancy process in the development of the applicant’s psychological condition, the doctor’s opinion in this respect does not grapple with the need to make the comparison between the redundancy process and the applicant’s other work stressors (as required per Outram and as indicated at paragraph 170 above).

I should finally note that the respondent (see paragraphs 105 and 122(b) above) asks me to appreciate that (especially in relation to Dr Jacobson’s evidence) there is not sufficient evidence for me to find a psychological injury pursuant to s 4 of the 1987 Act prior to December 2020. Therefore, it should be understood “that it was only with the redundancy that the applicant developed his injury”. I reject this submission. In my opinion, there is insufficient evidence as to the applicant’s voluntary redundancy process even having a causative role in the development of the injury, but even accepting such a role, the submission (similar to Dr Bisht’s report) does not grapple with the need to make the comparison between the redundancy process and the applicant’s other work stressors (as required per Outram and as indicated at paragraph 170 above). Whether the other work stressors caused an injury prior to December 2020 is not the point, as having found a psychological injury deemed to have occurred on 17 December 2020, I then need to compare causative factors. I do not reject causative factors simply because they may not have been sufficient to cause injury on their own at an earlier date.

Having accepted the applicant’s statement evidence, and having preferred the medical evidence presented by Drs Jacobson, Saker, and Rastogi, to that presented by Dr Bisht, I find that the respondent has failed to discharge its onus of proof regarding its purported defence to the applicant’s claim pursuant to s 11A of the 1987 Act. In conducting a comparison between the applicant’s reaction to his voluntary redundancy process against his reaction to all other work-related factors which contributed to his psychological injury (as referred to at paragraphs 161 and 139 above), I find that the redundancy process was not the main, principal, or predominant cause of the injury. Indeed, there is scant evidence that it was causative at all.

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)(ii) of the 1987 Act. His employment with the respondent is the main contributing factor to that injury.
I find that pursuant to s 16(1)(a)(i) of the 1987 Act and as pleaded, the applicant’s psychological injury will be deemed to have happened on 17 December 2020.
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 predominately caused by reasonable action taken or proposed to be taken by it with respect to transfer, retrenchment, dismissal, and/or provision of employment benefits.
I remit these proceedings to the President of the Commission for referral to a Medical Assessor in order to determine the degree of the applicant’s whole person impairment as a result of his psychological injury.
I order that the proceedings be listed before me for a preliminary conference, following the completion of the Medical Assessment process. The outstanding claims in the proceedings can then be conciliated/arbitrated with the benefit of a finding regarding the degree of the applicant’s whole person impairment as a result of his psychological injury.

[2024] NSWPIC 717

19 December 2024