Viney v Burwood Council
[2021] NSWPIC 236
•8 July 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Viney v Burwood Council [2021] NSWPIC 236 |
| APPLICANT: | Guiseppina (Pina) Viney |
| RESPONDENT: | Burwood Council |
| MEMBER: | John Isaksen |
| DATE OF DECISION: | 8 July 2021 |
| CATCHWORDS: | WORKERS COMPENSATION - Claim for weekly payments of compensation and medical expenses due to psychological injury; respondent relies upon section 11A defence that injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal and discipline; whether a Restorative Practice Process undertaken by the respondent was part of action with respect to discipline; reference to Northern NSW Local Health Network v Heggie; whether the worker has had no current work capacity or a partial incapacity for work; whether the respondent has credit for the payment of salary to the worker while suspended pending the outcome of a disciplinary investigation; reference to Kirkbride v State of NSW and Roads & Traffic Authority of NSW v Smith; Held– action of respondent was not performance appraisal but did meet criteria for action with respect to discipline; section 11A defence not established as injury not wholly or predominantly caused by discipline; also part of action with respect to discipline not reasonable; award of weekly payments of compensation for a period of no current work capacity and then partial incapacity for work; no statutory power to re-credit the respondent for payments while worker suspended on full pay; award for medical expenses. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant sustained a psychological injury in the course of her employment with the respondent with a deemed date of injury of 8 November 2019. 2. The respondent has failed to establish a defence pursuant to section 11A of the Workers Compensation Act 1987. 3. The applicant had no current work capacity from 11 November 2019 to 4. The applicant has had a partial incapacity for work since 29 February 2020 as a result of her injury. The Commission orders: 1. The respondent is to pay weekly payments of compensation to the applicant as follows: (a) $2,088.60 per week from 11 November 2019 to 9 February 2020 pursuant to section 36 (1) of the Workers Compensation Act 1987; (b) $1,758.80 per week from 10 February 2020 to 28 February 2020 pursuant to section 37 (1) of the Workers Compensation Act 1987; (c) $1,297 per week from 29 February 2020 to 30 June 2020 pursuant to section 37 (3) of the Workers Compensation Act 1987; (d) $1,285.40 per week from 1 July 2020 to date and continuing pursuant to section 37 (3) of the Workers Compensation Act 1987. 2. I decline to make an order that there be credit to the respondent for any payments already made to the applicant. 3. The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for her psychological injury pursuant to section 60 of the Workers Compensation Act 1987. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
The applicant, Giuseppina (Pina) Viney, commenced employment with the respondent, Burwood Council, in 1980.
The applicant was employed by the respondent as the Manager – Governance from 1993.
The applicant claims that she sustained a psychological injury in the course of her employment with the respondent as a result of bullying and harassment by another employee, BRM.
The applicant ceased work due to her psychological injury on or about 8 November 2019 and has not worked since.
The applicant has claimed in the Application to Resolve a Dispute (ARD) weekly payments of compensation from 20 March 2020 and the payment of medical treatment for her psychological injury.
The respondent concedes that the applicant did sustain a psychological injury in the course of her employment with the respondent but disputes liability on the grounds that the psychological injury sustained by the applicant has been wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or performance appraisal.
The respondent also contends that the applicant has been fit for suitable full time employment since at least 17 March 2020, based upon the opinion of Dr Hong, consultant psychiatrist.
ISSUES FOR DETERMINATION
The parties agree that the following issues remain in dispute:
(a) Whether psychological injury sustained by the applicant was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and/or performance appraisal (section 11A of the Workers Compensation Act 1987 (the 1987 Act));
(b) The extent of the applicant’s incapacity for work as a result of her injury (sections 32A, 33, 36, 37 and Schedule 3 of the 1987 Act);
(c) Whether the respondent can have an order made for credit for salary paid to the applicant while suspended and with a disciplinary investigation being undertaken (section 46 of the 1987 Act).
PROCEDURE BEFORE THE COMMISSION
The parties attended a conference and hearing on 3 June 2021 and 22 June 2021. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
Mr Adhikary appeared for the applicant, instructed by Ms Nair. Ms Grotte appeared for the respondent, instructed by Ms Ebbeck.
The applicant’s pre-injury average weekly earnings (PIAWE) were agreed at $2,198.52.
The hearing was conducted by telephone in accordance with the protocols set out by the Commission due to the coronavirus pandemic.
The hearing was not completed on the second day of hearing and directions were made for the applicant to complete her submissions in writing and the respondent to provide written submissions in reply.
There was an application in the applicant’s written submissions that the claim for weekly payments of compensation commence from 9 November 2019, being the date when the applicant was no longer able to work due to her psychological injury. Then in further written submissions filed with the Commission on 5 July 2021, but without leave being granted by the Commission, the applicant stated that she not seeking an order for workers compensation payments to be made in respect of a period prior to 24 March 2020, notwithstanding that such payments were payable before that date.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) The ARD and attached documents;
(b) Reply and attached documents;
(c) Application to Admit Late Documents filed by the applicant on 27 May 2021;
(d) Application to Admit Late Documents filed by the respondent on 4 June 2021;
(e) Application to Admit Late Documents filed by the applicant on 17 June 2021;
(f) Application to Admit Late Documents filed by the respondent on 23 June 2021;
(g) Applicant’s written submissions filed on 28 June 2021, and
(h) Respondent’s written submissions in reply filed on 2 July 2021.
Oral Evidence
There was application made by Ms Grotte on the first day of the hearing for some short cross examination of the applicant based upon a surveillance report that had only been received by the respondent the day before and which indicated that the applicant had been in paid employment.
After hearing submissions, the application for cross examination was rejected. The provision of a surveillance report or the cross examination of the applicant had not been raised by the respondent at the teleconference and the respondent had made no attempt to inform the applicant or Commission of the intention to cross examine the applicant, even on a narrow issue, before the commencement of the hearing on 3 June 2021. Directions were made for the filing and serving of the surveillance report and a response from the applicant prior to the second hearing date on 22 June 2021.
The applicant’s evidence
The applicant has provided statements dated 8 July 2020, 3 March 2021, and 10 March 2021, although the statement dated 3 March 2021 was taken by an investigator on 22 January 2020.
The applicant states that BRM commenced to work for the applicant in mid-2018, working three days per week. The applicant states that from January 2019, and after six months of training, BRM was not grasping various tasks of her role. The applicant states that she raised these performance issues with Mr Briscese (the former Deputy General Manager Corporate Governance and Community), Mr Zincone, (Acting Deputy General Manager), and Francene Egan (Business Partner People and Culture), but no assistance was provided to her.
The applicant states that it was very difficult to have a discussion with BRM as she would become aggressive and blame others. She states that she became constantly on edge and anxious when communicating with BRM.
The applicant states that on 27 June 2019 she met with Fab Zincone and Francene Egan regarding performance issues she was having with BRM. She states that Ms Egan advised that the best approach was to undertake a performance review. The applicant states that she asked for a member of the Human Resources team to sit as an observer during the performance review because she knew there would be issues with the behaviour of BRM, but the applicant was not provided with that assistance.
The applicant states that she had a performance meeting with BRM on 3 July 2019. The applicant states that the meeting proceeded in a professional manner, but BRM was very belligerent, aggressive, rude and offensive towards her.
The applicant states that she told BRM that she was ceasing the meeting and reported what had occurred to Mr Zincone and Ms Egan. There is a copy of an email in evidence from the applicant to Patricia Hatzigiannis (who was then employed as People and Culture Business Partner) dated 3 July 2019 wherein the applicant writes:
“Today both [BRM] and I went through her performance review, however, it was not completed as there were some disagreements. And some defamatory comments made by [BRM] towards me.”
The applicant states that she does not know what more she could have done in regard to the performance review meeting with BRM and felt abandoned because everywhere she went there was no help provided to her.
The applicant states that she was advised after the performance review meeting that BRM had lodged a grievance against her. She states that BRM continued to be aggressive and rude towards her and has provided various examples to the respondent of this.
The applicant provides details of incidents where BRM had been aggressive and rude to the applicant. For instance, she states that there were four times when the applicant had been putting her bag away in the cupboard and BRM had walked over her. The applicant provides another example of BRM standing between the applicant and the bathroom door to discuss some work issues and not stepping aside despite several requests from the applicant, including telling BRM: “I’m going to wet my pants.”
The applicant states that on 20 July 2019 she went to her doctor because she was experiencing stress, anxiety and depression from the issues with BRM.
The applicant states in August 2019 she was informed by Kathy Kouloukakis, People and Business Culture Partner, that a Restorative Practice Process would be undertaken in an effort to resolve the issues between herself and BRM.
Ms Kouloukakis advised that while the process was underway, there would be no investigation of grievances and issues as it was hoped that the process could resolve the situation.
The applicant states that there were a number of meetings with Ms Kouloukakis between August and October 2019 but that during this period BRM still treated the applicant in an aggressive and rude manner. She states that on numerous occasions she reported this to Mr Zincone.
The applicant states that she does not believe the Restorative Practice Process was carried out in a proper manner and that it was a waste of time, with many fruitless meetings.
The applicant states that on at least 10 occasions she requested details of the grievances lodged by BRM, but was not provided with those details and she became increasingly stressed. She states that she felt like she was walking on eggshells every time she spoke to BRM, and felt an overwhelming feeling of the need to throw up.
The applicant states that on 14 October 2019 she met with Ms Kouloukakis and Andrew Patterson, the Internal Ombudsman, and was advised that the Restorative Practice Process had failed and that Mr Patterson would now handle the matter as a Code of Conduct complaint.
The applicant states:
“With respect to the restorative practice process, I believe the process was unsuccessful because I was not provided with the contents of the grievance [BRM] had made against me. Additionally, [BRM] was still required to report to me during the process, and this was particularly upsetting when I knew a grievance had been lodged against me, and did not know its content. I engaged in the restorative process, and hoped that it would resolve the issues between [BRM] and I. I feel that the employer did not put us in a position for that process to succeed.”
The applicant states that after the meeting on 14 October 2019 she felt more stressed and anxious because she had to endure another investigation and had to continue to endure the behaviour of BRM. She states that she attended her doctor on 16 October 2019 due to depression and anxiety due to workplace issues.
The applicant states that she did not work from 23 October to 26 October 2019 due to high levels of anxiety and depression.
The applicant states that on 5 November 2019 there was another occasion when
BRM walked over the applicant when the applicant was bending down to a cupboard and the applicant said to BRM: “Please stop walking over the top of me”. She states that she made a report of this incident to Mr Patterson and Mr Zincone but found that BRM had lodged a further complaint against her.
The applicant states that on 8 November 2019 when she was on an RDO and at a friend’s house, she received a phone call from Mr Zincone who told her: “I’m informing you that you are suspended immediately on full pay.” The applicant states that she was very shocked by this and felt betrayed by an organisation that she had worked for more than half of her life. The applicant subsequently received a letter from the respondent confirming that she was suspended on full pay pending the outcome of current disciplinary investigations.
The applicant states that in late November 2019 she did participate in an interview
regarding the code of conduct investigation.
In early November 2019 the applicant sent a four and half page statement to Tommaso Briscese, Acting General Manager, regarding her concerns about the Restorative Practice Process. A letter in response from Mr Briscese and dated 10 December 2019, includes the following:
“In relation to the grievance lodged against you, I acknowledge that the alternative process that was applied to try and resolve the grievance unfortunately took longer than expected, and did not provide you with enough information. The reviewed Procedures will be clarified to ensure that this situation does not occur in the future. I apologise for the negative impact this timeframe had on you.”
A letter was sent by Mr Patterson to the applicant dated 22 January 2020 wherein the applicant was informed that an investigation undertaken by Alison Cripps of Cripps Consulting had found that on a number of occasions between January 2019 and 26 March 2019, the applicant had engaged in bullying behaviour towards BRM.
The applicant completed a claim form on 7 January 2020, which included a description of how the injury occurred as follows:
“I suffered a psychological injury arising predominantly from bullying and harassment by a difficult staff member; she and I both lodged grievances against each other, however my employer only investigated her grievance and not mine. This staff member reports to me. The first process was with no resolution. Only to now go through another investigation. I was notified by telephone that I was suspended immediately until the current investigation is conducted and emailed the official letter via email and delivery.”
The evidence of other witnesses
Roya Ahmed has provided statements dated 23 January 2020, 8 February 2020 and 8 July 2020.
Ms Ahmed states that she has worked as a Governance Officer with respondent since July 2019. She states that she works Wednesdays and Thursdays, and BRM also works on a Wednesday.
Ms Ahmed states that she advised the investigator who took her statement dated 23 January 2020 that there were two or three incidents when BRM spoke disrespectfully to the applicant in the presence of Ms Ahmed; that BRM would ignore the applicant by not acknowledging her with a “hello” or “goodbye”; and that she witnessed BRM on one occasion invading the applicant’s personal space.
Ms Ahmed states that there was an occasion when she sustained verbal abuse for about 10 to 15 minutes because BRM had inaccurately quoted a customer on a task. Ms Ahmed also states that she found BRM good to work with and that they generally got on well.
Ms Ahmed states that between July and October 2019 there were no occasions when she observed the applicant treating BRM in any type of bullying manner but that she did observe BRM treat the applicant in a type of bullying manner.
Ms Ahmed states that from July to October 2019 she noticed a change in the applicant’s demeanour whereby the applicant seemed less bubbly and more withdrawn. She states that on two occasions she sent an email to the People and Culture section when she saw the applicant crying.
BRM has provided statements dated 22 January 2020, 1 April 2020, and 18 May 2020. BRM states she was not given adequate training by the applicant and that the applicant was overly critical of her work, whereas the applicant treated Ms Ahmed very favourably.
BRM states that she did not raise her voice or speak disrespectfully to the applicant in the performance review meeting on 3 July 2019, and is shocked at those allegations. She does state that she was ambushed by the applicant in that meeting because she was not provided with a copy of her performance review prior to the meeting. She states that this meeting was “the last straw” of what she had been experiencing with the applicant. She states over the coming days she decided to lodge a grievance regarding issues she had with the applicant.
The grievance letter from BRM is in evidence and refers to incidents of the applicant being aggressive and belittling towards BRM.
BRM states that after she launched the grievance, the applicant made her life more difficult at work.
Fab Zincone has provided a statement dated 23 January 2020. Mr Zincone states in July 2019 and thereafter he was aware that there were issues between the applicant and BRM, whereby BRM had lodged a number of grievances against the applicant.
Mr Zincone states that he was aware of a Restorative Practice Process between the applicant and BRM which was conducted between August and October 2019, and that during the process the applicant came to see him on a number of occasions and made complaints about BRM, although he recalls that the applicant would recount the same incidents on a number of occasions.
Mr Zincone states that there were times when the applicant came to see him to complain about BRM and the applicant became teary and emotional. He states that at no time did the applicant indicate that she wished to lodge a formal grievance against BRM.
Mr Zincone states that he was aware of an incident in November 2019 when
BRM allegedly walked over the applicant and that BRM had lodged a further grievance against the applicant in relation to this incident. He states:“Following this, in November 2019 I was advised that the decision had been made to stand Giuseppina down on full pay pending the code of conduct investigation which I agreed with in light of the recent circumstances.”
Francene Egan has made a statement dated 27 October 2020. Ms Egan states that she was not aware that the applicant’s request for someone from HR to attend the performance review meeting with BRM had been denied, but states that it is not usual practice for someone from HR to attend.
Ms Egan states that her assistance with the performance review document was limited to suggestions on how to convey the applicant’s observations of the performance of BRM in a constructive and professional manner.
Kathy Kouloukakis has provided a statement dated 23 January 2020. Ms Kouloukakis states that in August 2019 she was appointed to undertake a Restorative Practice Process in regard to issues between the applicant and BRM.
Ms Kouloukakis states that the applicant generally presented at the meetings as being frustrated, confused and angry with BRM. She states that the applicant was usually stoic at the meetings but on a small number of occasions became teary and emotional.
Ms Kouloukakis states that BRM was very cooperative with the process and in working towards a resolution of some kind. She states that the applicant had a rigid attitude, with an inability to move from her perception that BRM was telling untruths. Ms Kouloukakis states that with ongoing issues occurring in the workplace, she felt there was safety and welfare concerns for BRM, but she did not have the same concerns for the applicant.
Ms Kouloukakis states that by mid October 2019 it had become quite clear that the Restorative Practice Process would be unable to resolve the issues between the applicant and BRM.
Ms Kouloukakis states that on 15 October 2019 she attended a meeting with the applicant and Mr Patterson during which the applicant was advised that the Restorative Practice Process would not proceed any further and that a code of conduct investigation would occur. She states this meeting was conducted in a cordial and reasonable manner.
Ms Kouloukakis states that both the applicant and BRM were afforded total fairness and support during the Restorative Practice Process.
Ms Kouloukakis also states that she read the performance review document for
BRM and found it was highly patronising towards her.
There is a file note from Ms Kouloukakis dated 29 October 2019 which reports on the Restorative Practice Process. The note states that the process was used to support an informal yet structured process to address the grievance submitted by BRM. The note sets out the key steps in the restorative process to be a discussion phase with affected employees; providing support to affected employees as required; ‘conference’ between affected employees; and follow up support to affected employees.
The file note lists at least 10 occasions when she met separately with both the applicant and BRM. The file note states that the applicant wanted to know the allegations made by BRM and that Ms Kouloukakis re-emphasised that this could not be done as part of her remit for this process. The file note states that
Ms Kouloukakis ‘reframed’ BRM’s grievances in such a way that they would be meaningful to the applicant, but by 14 October 2019 she had concluded that the Restorative Practice Process would have to cease.
Patricia Hatzgiannis has provided statements dated 23 January 2020 and 22 October 2020. Ms Hatzgiannis states that it would not be appropriate for someone from HR to attend a performance review meeting as that would cause discomfort for an employee. She states that the proper process would be to have a line manager attend the meeting if the applicant had concerns about how BRM would react. She also states that any performance issues should be addressed earlier than a performance review meeting.
Ms Hatzgiannis includes a copy of the email sent to her by the applicant on 3 July 2019 following the performance review meeting and states:
“My advice to Pina would have been consistent with the advice I have provided over the course of my career in relation to annual performance reviews, that is, there should be no surprises to the employee. Any performance issues should have been discussed and documented throughout the previous 12 months.”
Ms Hatzgiannis also states that she is advised that the applicant alleges that not knowing the substance of the complaints made by BRM affected the applicant psychologically, and the response from Ms Hatzigiannis is: “the restorative practice was explained to Ms Viney and she voluntarily entered into the process.”
Andrew Patterson has provided statements dated 22 January 2020 and 19 October 2020. Mr Patterson states that at a brief meeting on 15 October 2019 the applicant did not show any signs of upset or anxiety when she was advised that the Restorative Practice Process would not proceed and a code of conduct investigation was to be conducted.
Mr Patterson states that over the past six months (being the second half of 2019) he had various contact with the applicant and BRM by phone and in person and both had been upset and crying at times.
The medical evidence
There are clinical notes from the applicant’s general practitioner, Dr Emmanuel, in evidence. Dr Emmanuel records on 20 July 2019: “Anxiety lately – advice”, in addition to notes regarding other health issues.
On 16 October 2019, being the day after the applicant had been informed that she would be the subject of a Code of Conduct complaint, Dr Emmanuel records:
“Did performance review of staff member 3/12 ago – person put in complaint – Guiseppina hasn’t been told nature of complaint + she is now upset, stressed + doesn’t want to give work to this person, resulting in over work for herself; unhappy, tearful, less pleasure in life.”
On 5 November 2019, Dr Emmanuel records:
“Had another incident with same staff member was “in her space” with hot cup of coffee + she told her not to do that and the person left the office + may have reported her.”
In a report dated 16 January 2020, Dr Emmanuel confirms the history set out in those notes and writes that the staff member had verbally and physically intimidated the applicant after the staff member made a complaint about the applicant. Dr Emmanuel writes:
“She also felt stressed about giving any work to this individual, resulting in overwork for herself. Additionally she was upset that she hadn’t been told the nature of the complaint against her, that her manager had not taken any action after she had reported the intimidatory actions of her co-worker and she also felt the normal procedures following a complaint had not been carried out by her employer’s representatives.”
The applicant attended Mr Goldbach, psychologist, for treatment, but there is no report from Mr Goldbach in evidence. The clinical notes from Mr Goldbach include at the applicant’s first consultation with Mr Goldbach:
“Complaint made about pt
Unhappy with the way it has been dealt with
Capable of reflecting critically about subordinate’s behaviour and her own behaviour.”
The applicant has attended Dr Chiam, consultant psychiatrist, for treatment, although that treatment commenced in August 2020. Dr Chiam writes in reports dated 19 August 2020 and 15 December 2020 of increasingly hostile and confrontational encounters with BRM and also increasing animosity towards her by senior managers in her role of investigating allegations of inappropriate behaviour.
In his report dated 19 August 2020, Dr Chiam diagnoses an Adjustment Disorder with depressed mood and anxiety.
Dr Chiam writes in his report dated 15 December 2020:
“In my opinion, Ms Viney’s injury is likely a result of a combination of factors. While it is clear that her interpersonal conflict with [BRM] had contributed to the injury, it also appears that she was aggrieved by a lack of transparency over [BRM]’s complaints against her and by the lack of support from senior management of the Council.”
Dr Canaris, consultant psychiatrist, has provided a report at the request of the applicant’s solicitors dated 28 March 2020. Dr Canaris records the applicant being the subject of a complaint by BRM but that she was not told the nature of the complaint.
Dr Canaris also records specific instances of intimidation of the applicant by
BRM, including an incident where the applicant claims BRM barricaded the applicant from going into a toilet cubicle, following which the applicant had a panic attack.
Dr Canaris concludes:
“Her presentation is consistent with a diagnosis an adjustment disorder with mixed anxiety and depression which on the available history is directly attributable to her workplace difficulties. While she had been the subject of a disciplinary procedure culminating in her departure from work, it was clear from the documentation on hand that her workplace difficulties had triggered symptoms for a considerable time before her subordinate had lodged a complaint against her. She believes that the complaint against was motivated by the fact that she was performance managing another employee while also believing that her role in the investigation of some managers may have contributed to a decision to dispose of the services.
It is of course not my place as a psychiatrist to determine whether she was fairly treated in relation to the complaint against her, the subsequent investigation, and its outcome. However, if I accept the history on offer, she has understandable reasons for perceiving all this as very unreasonable. I also note evidence of an adjustment disorder involving before the disciplinary process was set in train.”
Dr Hong, consultant psychiatrist, has provided a report at the request of the respondent dated 28 February 2020. Dr Hong records that the applicant started feeling depressed from August 2019 due to a combination of a number of occasions when
BRM walked over the applicant when she was crouching down at a cupboard and after BRM made a complaint about the applicant.Dr Hong records that what most affected the applicant was not so much the complaints made by BRM against her but that she was denied support by her manager regarding performance management of BRM and that she was suspended when BRM made a counterclaim regarding the applicant’s alleged behaviour.
Dr Hong notes significant inconsistency between the applicant’s history and that provided by other people at work. He speculates that the applicant may not have insight into her own behaviour.
Dr Hong diagnoses an adjustment disorder rather than major depressive disorder or panic disorder.
Dr Hong concludes:
“The predominant cause of Ms Viney's symptoms relate to a worker RG and the performance management of RG and subsequently the counter claim against her by RG which had been substantiated leading to her suspension.
I understand one of the other concerns had been RG walking over her and at one point touched her leg when walking over her. This is no doubt distressing for Ms Viney but in my opinion, this would not produce a psychological injury in a typical person.
Therefore, I concluded the predominant cause of her psychological injury related to various administrative processes related to complaints, investigations and outcome and disciplinary action.”
FINDINGS AND REASONS
The section 11A defence
The respondent concedes that the applicant sustained a psychological injury in the course of her employment. The respondent contends, however, that the applicant’s psychological injury has been wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal and/or discipline, and that, pursuant to section 11A (1) of the 1987 Act, no compensation is payable to the applicant.
Section 11A (1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by, or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Ms Grotte for the respondent submits that the whole or predominant cause of the applicant’s psychological injury is an extended disciplinary process which commences with a complaint by BRM, then an attempt to restore the relationship between the applicant and BRM through the Restorative Practice Process, and then moving on to a formal investigation.
Ms Grotte submits that the disciplinary process was mild at first with the use of the Restorative Practice Process, but became more intense when the applicant was informed on 15 October 2019 that there would be a formal investigation, and on 8 November 2019 when she was informed that she would be suspended with pay while the investigation ensued.
Ms Grotte refers to the applicant attending Dr Emmanuel the day after she is informed of the formal investigation. Ms Grotte refers to the note made by Dr Emmanuel that the applicant is “now upset” as being a contemporaneous record of the predominant cause of injury, namely the applicant being put on notice of a formal investigation to be conducted regarding the grievance lodged by BRM.
Ms Grotte submits that the respondent acted reasonably throughout the disciplinary process and submits that the respondent had to have particular regard to the power imbalance between the applicant and a subordinate employee. Ms Grotte also points out that in this dispute all the relevant officers from the respondent have provided evidence and that evidence is consistent with reasonable action taken to initially try to restore the relationship between the applicant and BRM, but then to proceed to a formal investigation.
Mr Adhikary for the applicant submits that actions taken by the respondent do not amount to either discipline or performance appraisal.
Mr Adhikary submits that even if the Commission was satisfied that either or both categories were established by the respondent, the action taken by the respondent with respect to discipline or performance appraisal was not the whole or predominant cause of the applicant’s psychological injury and nor was it reasonable.
In regard to the category of performance appraisal, the Commission has consistently applied what was said by Geraghty CCJ in Irwin v Director General of School Education, NSWCC no.14068/97 (18 June 1998, unreported) (Irwin):
“Furthermore, performance appraisal is a process, an established process involving various steps. Perhaps it will involve the completion of questionnaires and forms. It requires discussion between various parties about performance, written appraisal, sometimes even self-appraisal, maybe even a score. It is a process in which parties are engaged and knowingly engaged.
Performance appraisal is not a vague, continuing, informal process which begins on the first day of employment although, in a sense, we can say that we are continually under scrutiny and being appraised in somewhat the same way as students in a classroom are being scrutinised on a day-to-day basis. But ‘performance appraisal’ is somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited discrete process, with a recognised procedure to which the parties move in order to establish an employee’s efficiency and performance.”
I would accept that ‘performance’ can extend beyond the efficiency or productivity of an employee in an appointed position and include all aspects an employee’s duties in the workplace, including the ability of an employee to work harmoniously with other employees. However, the evidence provided by Ms Kouloukakis does not support a finding that the Restorative Practice Process involved an appraisal of the applicant’s performance.
Ms Kouloukakis does not provide evidence of an actual appraisal of the applicant’s performance by way of an assessment of the value or quality of that performance. Nor does the evidence reveal any limited discrete process with a recognised procedure known to the applicant which would have allowed the applicant to understand how her performance was to improve. The process did not end at an accepted or agreed point known to the applicant but rather ended when Ms Kouloukakis decided that the issues between the applicant and BRM could not be resolved through that particular mechanism of dispute resolution.
I am therefore not satisfied that any action taken by the respondent with respect to the applicant can be regarded as performance appraisal.
In regard to discipline, Mr Adhikary submits that this category could not be met until the Restorative Practice Process had concluded and the formal investigation had commenced. This is because Ms Kouloukakis states that the process aimed to resolve the issues between the applicant and BRM and avoid a formal investigation. The file note made by Ms Kouloukakis at the conclusion of the process states:
“It was critical to not operate the restorative process as a quasi-investigation to ensure the principles of fairness and non-judgement and thereby enable the restorative conference to take place voluntarily.”
Mr Adhikary also submits that the decision made by the respondent not to provide details of the grievance made by BRM during the Restorative Practice Process was consistent with a process which did not involve discipline.
In Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR (Heggie), AJA Sackville said at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the [1987] Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
If a broad view is taken of ‘action with respect to discipline’, as was stated by Sackville AJA in Heggie, then that would encompass action taken by the respondent from the time a grievance was received from BRM and a decision was made to address this grievance. I accept a submission made by Ms Grotte that once the grievance was received from BRM, the respondent as a responsible employer was bound to act and the applicant, as a result of that grievance, became subject to action with respect to discipline. The respondent then made a decision that the particular approach in regard to disciplinary action with respect to the applicant would be the Restorative Practice Process.
The summary of the Restorative Practice Process contained in the file note from
Ms Kouloukakis states that the use of restorative practices was “an informal yet structured process to address the grievance” of BRM. The applicant was the subject of that grievance. While the applicant was not informed of the allegations made by BRM during the Restorative Practice Process, it was nonetheless an approach which attempted to address and resolve the breakdown in a relationship between two employees in the workplace as an alternative to a formal investigation.In my view, and consistent with what was stated in Heggie, the Restorative Practice Process must be included as part of the entire process involved in disciplinary action as it applied to the applicant because the Restorative Practice Process was part of an approach taken by the respondent to address the grievance regarding the conduct of the applicant which had been lodged by BRM.
From my review of the evidence, the Restorative Practice Process which was conducted from August to October 2019, the meeting on 15 October 2019 when the applicant was informed that the Restorative Practice Process had failed and that the grievance lodged by BRM would now proceed as a Code of Conduct complaint, and the phone call made to the applicant on 8 November 2019 that she would be suspended on full pay while an investigation was undertaken (along with the letter to the applicant on the same date), were all actions with respect to discipline.
However, the respondent must establish that action taken or proposed to be taken with respect to discipline was the whole or predominant cause of the applicant’s psychological injury for the section 11A defence to succeed.
Mr Adhikary submits that a review of both the lay and medical evidence demonstrates that the respondent’s actions have not been the whole or predominant cause of the applicant’s psychological injury.
The applicant states that on 20 July 2019 she went to see Dr Emmanuel because she was experiencing stress, anxiety and depression from the issues with BRM. However, the entry made by Dr Emmanuel is limited to: “Anxiety lately – advice”, with no indication that the recorded symptom was related to the applicant’s work.
The applicant then attended Dr Emmanuel on 16 October 2019, the day after the applicant was informed that a Code of Complaint investigation would be commenced. The applicant states that upon being advised of this, she felt more stressed and anxious.
That evidence gives good support to the respondent’s submission that the meeting on 15 October 2019, which does amount to action with respect to discipline, was a predominant cause of the applicant’s psychological injury.
However, the details of stressful events and issues at the applicant’s workplace which were obtained by Dr Emmanuel on 16 October 2019, and at subsequent consultations in early November 2019, were not limited to what occurred on 15 October 2019. In his report dated 16 January 2020, Dr Emmanuel writes that the applicant was upset by
BRM making a complaint against her, but also records that this employee verbally and physically intimidated the applicant; that the applicant felt stressed about giving work to this employee, which resulted in overwork for herself; that the applicant had not been told of the nature of the complaint against her; that no action had been taken by the applicant’s manager after the applicant reported intimidation by
BRM; and that normal procedures had not been followed by the applicant’s employer following her own complaints.The details recorded by Dr Emmanuel in those initial consultations are supported by lay evidence. The applicant states that she had difficulties with BRM and was subjected to intimidation by BRM, even though BRM was subordinate to her. She states that even before the performance review meeting on 3 July 2019, she found BRM to be aggressive and had raised performance issues regarding
BRM with senior management.The applicant states that her request for a member of Human Resources to attend that meeting was in anticipation of issues arising from the behaviour of BRM. Although Ms Egan and Ms Hatzigiannis state that it was not usual for a member of Human Resources to attend a performance review meeting, and Ms Egan was not aware of the applicant’s request, none of the relevant officers dispute that the applicant did seek some assistance prior to this meeting. The evidence would support a finding that the performance review meeting which the applicant was required to conduct with BRM was a cause of stress for the applicant.
The applicant states that the intimidatory behaviour of BRM increased after the meeting on 3 July 2019, and the applicant provides specific instances of BRM walking over her when the applicant was crouching down at a cupboard and an instance when BRM ignored the applicant’s pleas to move aside from the bathroom door.
There is other evidence which supports the claims made by the applicant of the difficulties she was having with BRM. There is the email sent by the applicant to Ms Hatzigiannis on the same day of the performance meeting wherein the applicant writes: “And some defamatory comments made by [BRM] towards me.”
Mr Zincone concedes that there were a number of occasions between August and October 2019 when the applicant came to see him and made complaints about
BRM, although he does not provide specific details of those complaints and states that the same incidents were recounted by the applicant on a number of occasions.Ms Ahmed concedes that she generally got on well with BRM but states that there were two or three incidents when BRM spoke disrespectfully to the applicant in the presence of Ms Ahmed; that BRM would ignore the applicant by not acknowledging her with a “hello” or “goodbye”; and that she witnessed BRM on one occasion invading the applicant’s personal space. Ms Ahmed states that she saw BRM treat the applicant in a bullying manner, although she does not provide specific details.
Ms Grotte submits that a caveat should be put on Ms Ahmed’s evidence because
Ms Ahmed only commences to work with the applicant and BRM in July 2019, which is after BRM had lodged her grievance and the relationship between the applicant and BRM had broken down.However, the evidence of Ms Ahmed is not challenged by BRM or any of the other witnesses who have provided evidence in this dispute. I consider that considerable weight has to be given to the evidence provided by Ms Ahmed given that she was actually working with the applicant and BRM for at least one day a week.
The decisions of the Commission in regard to psychological injuries which are claimed to arise out of or in the course of employment emphasise that a perception of real events can satisfy the test in establishing injury. As DP Roche said in Attorney General’s Department v K [2010] NSWWCCPD 76 (Attorney General’s Department v K) at [54]:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’.”
The applicant’s evidence, supported by the evidence of Ms Ahmed and Mr Zincone, and recorded by Dr Emmanuel, leads me to conclude that there were real events in the workplace where the applicant was having difficulties in managing and working with BRM, and that the applicant was the subject of some intimidation by
BRM, and that these incidents were the source of symptoms of stress for the applicant.The applicant also states that she became increasingly stressed when she was not provided with details of the complaint made by BRM. She states that there were at least 10 occasions when she requested details of this. In her letter to Tommaso Briscese, Acting General Manager, dated 4 November 2019, the applicant writes that she asked for the content of the grievance on each and every meeting that she had with Ms Kouloukakis.
Ms Kouloukakis does not refer in her statement to those requests made by the applicant, but in the file note that she prepared after the termination of the Restorative Practice Process, Ms Kouloukakis does acknowledge that the applicant wanted to know the allegations made by BRM. The file note indicates that Ms Kouloukakis went some way to addressing this concern by having BRM concerns framed in a way that would be meaningful to the applicant. The process was terminated before that information could be provided to the applicant.
The request for details of the grievance lodged by BRM occurred while action was being taken by the respondent with respect to discipline. However, from my review of the evidence, the decision not to provide details those details to the applicant could not be regarded as reasonable.
In Irwin, Geraghty CCJ said:
“The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of an employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”
I accept that the Restorative Practice Process was well intentioned and that there are certainly advantages in having a less formal procedure for resolving problems in the workplace. I also agree with the submission made by Ms Grotte that I am required to consider what was reasonable in the circumstances at the time the action with respect to discipline was being taken, rather than engage in a retrospective test.
However, I also accept that fairness was not afforded to the applicant by the refusal to provide her with details of the grievance lodged by BRM, despite multiple requests being made by the applicant. The applicant was being asked to participate in a process without being given sufficient information to understand what she was being accused of by BRM. It is apparent from the applicant’s evidence and what is contained in the file note by Ms Kouloukakis that this was a major issue for the applicant and an impediment to moving forward with the Restorative Practice Process.
When Mr Briscese writes to the applicant in December 2019 and concedes that the process “did not provide you enough information”, he does not specifically refer to the request for details of the grievance lodged by BRM. However, that letter is in response to that very complaint made by the applicant.
From my review of the evidence the decision made on behalf of the respondent not to provide details of the grievance lodged by BRM during the Restorative Practice Process was not reasonable and added to the stress and anxiety of the applicant.
There is evidence that supports a finding that the applicant was experiencing symptoms of stress prior to the meeting with Mr Patterson and Ms Kouloukakis on 15 October 2019 and her attendance on Dr Emmanuel the following day.
I accept that the applicant was experiencing stress when she states that she felt like she was walking on eggshells every time she spoke to BRM. It is understandable that the applicant was experiencing this stress in a situation where she had to continue to work with and supervise BRM while a grievance was being dealt with by the respondent.
Mr Zincone states that there were times when the applicant became teary and emotional when she came to complain about BRM. Ms Kouloukakis states that although the applicant was usually stoic at their meetings, there were a small number of occasions when the applicant became teary and emotional.
There is compelling evidence from the person who worked close to the applicant.
Ms Ahmed states that from July to October 2019 she noticed a change in the applicant’s demeanour whereby the applicant seemed less bubbly and more withdrawn. She also states that on two occasions she sent an email to the People and Culture section when she saw the applicant crying, although one of those emails has been identified by Ms Hatzigiannis as being sent on 16 October 2019, being the day after the meeting between the applicant, Mr Patterson and Ms Kouloukakis.In Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad), DP Snell said at [88]:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in 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.”
Ms Grotte submits that when all of the events are examined objectively, the conclusion must be that the predominant cause was the disciplinary process set in train by the grievance lodged by BRM.
However, from my review of the evidence I am satisfied that the applicant was having difficulties in managing BRM prior to the performance review meeting on 3 July 2019 and was the subject of some intimidation by BRM between July and November 2019, and that she experienced stress as a result of these events. These events cannot be regarded as being related to discipline.
I also accept from a review of the evidence that the applicant made multiple requests for information regarding the grievance lodged by BRM and that this also caused the applicant to experience stress. The requests for information were made in the context of discipline but I have provided reasons as to why the refusal to provide this information by the respondent was unreasonable.
I have already referred to Dr Emmanuel recording those issues when the applicant started to seek treatment from him.
Dr Chiam does not start to see the applicant until August 2020 but also identifies those issues as being integral to the applicant’s psychological injury when he opines that the injury is likely a result of a combination of factors, including the interpersonal conflict with BRM and what Dr Chiam describes as “a lack of transparency over
BRM’s complaints against her.” The opinion of Dr Chiam must be given significant weight in his role as treating specialist.Dr Hong opines that the predominant cause of the applicant’s psychological injury related to complaints and investigations, but to reach that conclusion he opines that the predominant cause of the applicant’s symptoms relate to BRM and the performance management of BRM and a claim made by BRM against the applicant. That latter opinion is consistent with what was recorded by Dr Emmanuel and with the opinion on the causes of injury provided by Dr Chiam. The difficulties which the applicant had in dealing with BRM and which caused stress for the applicant were not action taken with respect to the discipline of the applicant.
From my review of the evidence I conclude that action taken by the respondent with respect to discipline was not the whole or predominant cause of the applicant’s psychological injury because the lay and medical evidence establishes that ‘causative factors’ for that injury included difficulties that the applicant had with BRM, the intimidation of the applicant by BRM, and the unreasonable action taken by the respondent to refuse to provide details of the grievance lodged by BRM despite repeated requests by the applicant. The section 11A defence relied upon by the respondent must fail.
It is therefore not necessary to consider the further submission made by the applicant that the action taken by the respondent with respect to discipline was not reasonable. I would however note that while the Restorative Practice Process was well intentioned and seemed to be a worthwhile process to try and resolve difficulties in the workplace, the decision in Heggie emphasises that “it is the reasonableness of that action that must be assessed” in regard to discipline.
Mr Briscese acknowledged in his letter to the applicant on 10 December 2019 that the Restorative Practice Process took longer than expected and the applicant was not provided with enough information. That tends to support the argument made by the applicant that action taken by the respondent was not reasonable. However, it is not necessary for me to make a finding on this issue given that the section 11A defence has failed the ‘wholly or predominantly caused’ test.
The claim for weekly payments of compensation
In her statement dated 3 March 2021, the applicant states that she finds herself losing concentration when conversing with another person and is no longer confident in making decisions. She states that she suffers regular panic attacks and experiences very high anxiety. She states that she cannot cope with high pressure situations or high levels of responsibility.
The applicant states that she is keen to return to some form of work but that she is anxious at the thought of returning to work, especially if she going to be exposed to any form of bullying.
The applicant’s daughter, Isabella Viney, states that she noticed a deterioration in the applicant’s mental health in March 2020, including the applicant not showering for days and spending most of the day in bed. She states that she noticed an improvement in the applicant’s hygiene and mental health when the applicant had structure in the day by driving her to and from work.
Dr Emmanuel has provided Certificates of Capacity certifying the applicant having no current work capacity until 28 February 2020. Dr Emmanuel provided a further Certificate of Capacity certifying the applicant as having capacity for seven hours of work per day for three days per week from 29 February 2020 to 27 March 2020, and some type of employment, with no limit on hours, from 28 March 2020 to 28 September 2020.
When Dr Hong saw the applicant in late February 2020, he found that the applicant was consistently focussed during the assessment and had no impairment in shifting topics.
Dr Hong considered the applicant could start working 20 hours per week and upgrade to full time work over three weeks. He opined that full time work could be any role for which the applicant was qualified for by training or experience.
Dr Canaris writes that he assessed the applicant over the phone on 27 March 2020 because of the Co-vid 19 crisis. He records that the applicant sounded teary, but her account was consistent and coherent.
Dr Canaris notes that she had been certified to work seven hours a day for three days per week but considered her confidence had been significantly undermined and she would require significant assistance in returning to work.
Dr Chiam opines in December 2020:
“If her mood is stable, I believe she retains the capacity to work with a team, to concentrate, to travel to and from work, to respond to authority, to liaise with customers, to problem solve, to work unsupervised, and to communicate with others, organize, pay attention to detail, multitask and learn.”
However, Dr Chiam observes that the applicant’s confidence has been severely impacted by her experience with the respondent. Dr Chiam opines that resultant stress and anxiety could affect the applicant’s cognitive tasks as well as more complex organisational and multitasking abilities.
Dr Chiam considers that the applicant has the capacity to perform 12 to 20 hours of work per week, provided the work environment has low confrontation and the applicant does not have to manage staff. Dr Chiam speculates that the applicant’s work capacity may improve as she gains greater confidence in her work.
Dr Chiam considers the applicant has the capacity to work for 12 to 20 hours per week in some four positions identified in a report from Ines Pasic of Compensation Assistance Services, provided there is a graduated return to work approach. The four positions identified as being suitable for the applicant in that report are – Corporate Governance Officer; Executive Assistant/Personal Assistant; Clerical and Administrative Worker/General Clerk; and Data Entry Operator or Keyboard Operator.
The evidence from Dr Emmanuel supports a finding that the applicant had no current work capacity from 11 November 2019 to 28 February 2020. There is no medical evidence to the contrary. The date of 11 November 2019 should be the start date for the payment of compensation because that is the start of the working week and the applicant had last worked on 8 November 2019.
I will address the issue as to whether there should be an award of weekly payments of compensation for this period and if so, how those payments relate to monies already paid by the respondent to the applicant while she was suspended from work, when I make the orders for the payment of weekly benefits of compensation.
In regard to the applicant’s capacity for work after 28 February 2020, Mr Adhikary submits that the applicant does not have any capacity to work. He submits that there are no real jobs which the applicant can do given the difficulties identified by Dr Chiam. Mr Adhikary also refers to the respondent not providing any assistance to the applicant to facilitate her return to work.
I prefer the opinion of Dr Chiam on the issue of the applicant’s capacity for work after 28 February 2020 because Dr Chiam is the applicant’s treating psychiatrist, has given a considered and detailed analysis of the applicant’s prospects of a return to work in the report dated 15 December 2020, and provides the most up to date opinion on this particular issue.
Dr Chiam identifies a wide range of skills which the applicant retains, including the capacity to concentrate, liaise with customers, organise, pay attention to detail and learn. Dr Chiam does not identify the applicant having problems with cognitive function, and nor is that referred to by Dr Hong or Dr Canaris.
The significant impediment identified by Dr Chiam to the applicant returning to and maintaining employment is working in a position where there is confrontation and conflict, and where stress and anxiety would affect the applicant’s cognitive tasks as well as more complex organisational and multitasking abilities. Although Dr Chiam believes the applicant has the capacity to work as a Corporate Governance Officer or Executive Assistant, presumably because she retains the relevant skills for those jobs, in my view those two jobs carry with them a level of stress and likely confrontation which the applicant should not be exposed to given her accepted psychological injury.
The position of a clerical and administrative worker at a relatively low level, whereby the applicant undertakes menial tasks such as photocopying, maintenance of records, and reception duties, would be within the applicant’s capacity. It allows the applicant to use the skills she has attained over a 40 year period in an office environment without being exposed to stress and confrontation which can occur in more senior positions in an organisation.
The applicant acknowledges in her statement dated 10 March 2021 that the duties of a general clerk “are somewhat menial in nature” and that such a position does not make use of her experience, skill and qualification. However, the definition of ‘suitable employment’ in section 32A of the 1987 Act requires that regard be had to ‘the worker’s age, education, skills and work experience’, and the opinion provided by
Dr Chiam and the evidence that is available regarding the applicant’s past work experience, supports a finding that the applicant is currently suited to the position of a general clerk.Dr Chiam considers that the applicant has the capacity to perform 12 to 20 hours of work per week and her work capacity may improve as she gains greater confidence in her work. Dr Hong also considered that the applicant could start at 20 hours of work per week but could quickly build up to a full working week.
I do not consider that the applicant’s capacity for work can be put any higher than 20 hours of work per week in a low level clerical position. Dr Chiam, Dr Hong and
Dr Canaris all identify 20 hours per week as being an amount of hours that the applicant could manage with. Thereafter it becomes mere speculation as to whether the applicant can increase her hours.I note that Dr Chiam did not see the applicant until August 2020, but by March 2020
Dr Emmanuel had certified the applicant fit for at least 21 hours of work per week and Dr Canaris did not argue against that. The medical evidence would therefore support a finding of a partial incapacity for work from 29 February 2020.The report prepared by Ines Pasic provides details of actual advertised jobs. Those advertised jobs for an administration officer provide for hourly rates of between $31 and $35 per hour. However, the brief description of those jobs and the level of pay for those jobs suggest a level of responsibility which has the potential of exposing the applicant to stress and confrontation, which is a primary concern of Dr Chiam.
It is therefore more appropriate to use the relevant award rates. A level 2 employee under the Clerks – Private Sector Award 2020 utilises more skills than the menial tasks indicative a level 1 employee. However, level 3 involves greater levels of organisation and level 4 can include the supervision of other employees. A level 2 employee would therefore seem to be a position which the applicant is currently suited for given the skills she has acquired and used during her employment with the respondent, but without the exposure to stress which comes with more responsible or supervisory roles.
The hourly rate for a level 2 employee under the Clerks – Private Sector Award 2020 has been $23.67 per hour since 1 July 2020. Prior to that it was $23.09 per hour.
I therefore find that the applicant has been able to earn in suitable employment the amount of $461.80 per week from 29 February 2020 to 30 June 2020, and $473.40 per week since 1 July 2020.
Returning to the period from 11 November 2019 to 28 February 2020, both the ‘first entitlement period’ and ‘second entitlement period’ are defined in section 32A of the 1987 Act as being periods ‘in respect of which a weekly payment has been paid or is payable to the worker.’
The applicant made a claim for workers compensation by completing a claim form on 7 January 2020 and provided Certificates of Capacity which certified that she had no current work capacity from 16 October 2019 to 28 February 2020. Weekly payments become ‘payable’ from the date that the applicant had no current work capacity due to the psychological injury she sustained in the course of her employment.
Although there may have been a few days in late October 2019 when the applicant did not work due to her psychological injury, the date which can be identified with certainty as the applicant’s first day of incapacity is 11 November 2019. There should be an award of weekly payments of compensation which commences on 11 November 2019 because that is consistent with the evidence and the provisions of Part 3, Division 2 of the 1987 Act.
Mr Adhikary submits that the applicant did not receive the payment of wages, sick leave or workers compensation from 9 November 2019. He submits that there be ‘no re-crediting’ from 8 November 2019, without indicating what credit that might be.
Ms Grotte refers to copies of payment advices from the respondent addressed to the applicant which are in the ARD which record the payment of salary to the applicant from November 2019 to 23 March 2020, with the notation “Suspended with Pay.” The letter from the respondent dated 8 November 2019, advising the applicant that she was suspended, stated that the applicant would be on full pay pending the outcome of current disciplinary investigations.
Ms Grotte submits that there would have to be credit to the respondent for payments already made, otherwise the applicant would be ‘double-dipping’ and there would be an injustice to the respondent.
In my view there is no statutory power available to re-credit the respondent for payments made to the applicant while suspended with pay. This particular issue is similar to a dispute which arose in a decision of then Arbitrator Harris in Kirkbride v State of New South Wales (Ambulance Service) [2019] NSWWCC 236, where the worker was paid maternity leave during a period when she was found to be totally incapacitated for work and the employer sought credit for the payment of maternity leave. That application made by the employer was unsuccessful.
Arbitrator Harris said at [63]:
“…there is no statutory provision under the 1987 Act to order a re-creditation to the respondent of maternity leave benefits paid under the Award. The statutory powers of the Commission arise under the 1987 Act and the Workplace Injury Management & Workers Compensation Act 1998. If there has been any suggestion of unjust enrichment or receipt of an entitlement not otherwise owing, then that remedy arises in another jurisdiction. There is no statutory power in the Commission to order other than what the applicant is entitled to receive pursuant to the provisions of the 1987 Act.”
Section 46 of the 1987 Act provides for a reduction in weekly payments to prevent dual benefits, however that is contingent upon the dual benefits being ‘of the same kind payable by the employer during and in respect of the incapacity for work.’ In Roads & Traffic Authority of NSW v Smith [2007] NSWWCCPD 134, ADP Snell considered whether a settlement for a wrongful dismissal action was a ‘dual benefit’. ADP Snell referred to the High Court decision of Steggles Pty Ltd v Vandenberg [1987] HCA 35, and then said at [64]:
“Whilst Steggles dealt with a differently worded section, there are similarities. In section 46, as in the previous section 13, application of the section requires that the amount payable by the employer be related to the worker’s incapacity. Indeed the required connection between the payment and the incapacity is greater under section 46 than its forerunner. Section 13 required that the payment be “during the period of his incapacity”, whereas section 46 requires that it be “during and in respect of the incapacity for work”. It is impossible to characterise the sum paid by the RTA, in settlement of the wrongful dismissal proceedings, in this way. The precise basis of the payment is unclear from the evidence. The RTA submits it represented a payment pursuant to section 89(5) of the Industrial Relations Act 1996. Assuming this to be so, having regard to the wording of section 89 of that Act, the payment could not possibly be regarded as one “in respect of the incapacity for work”. Accordingly, the discretion pursuant to section 46 is not enlivened, and this ground of appeal cannot succeed.”
The payment by the respondent of salary while the applicant was suspended cannot be regarded as payment in respect of the incapacity of the worker, and accordingly section 46 of the 1987 Act does not assist the respondent.
The period from November 2019 to 23 March 2020 wherein the respondent seeks to have credit for payments already made, includes a period from 29 February 2020 to 23 March 2020 when the provisions of section 37 (3) of the 1987 Act apply. I have considered whether the payment of salary to the applicant can be regarded as ‘current weekly earnings’, which would lead to a reduction in the award of weekly benefits for at least this period.
Clause 6 of Schedule 3 of the 1987 Act states that the term ‘earnings’ is to mean: “the amount that is the income of the worker received by the worker for work performed in any employment during the week.”
An essential component of that definition is income ‘received by the worker for work performed.’ There is no evidence that the applicant performed any actual work during this period, but instead received her usual pay while a disciplinary investigation ensued. Therefore, no adjustment can be made for the award I otherwise intend to make for weekly payments of compensation for the period from 29 February 2020 to 23 March 2020.
There will be an award of weekly payments of compensation to the applicant as folIows:
(a) $2,088.60 per week from 11 November 2019 to 9 February 2020 pursuant to section 36 (1) of the 1987 Act;
(b) $1,758.80 per week from 10 February 2020 to 28 February 2020 pursuant to section 37 (1) of the 1987 Act;
(c) $1,297 per week from 29 February 2020 to 30 June 2020 pursuant to section 37 (3) of the 1987 Act;
(d) $1,285.40 per week from 1 July 2020 to date and continuing pursuant to section 37 (3) of the 1987 Act.
I decline to make an order that there be credit to the respondent for any payments already made to the applicant.
The claim for medical expenses
There will be an order for the payment by the respondent of reasonably necessary medical expenses for the treatment of the applicant’s psychological injury.
PERSONAL INJURY COMMISSION
WORKERS COMPENSATION DIVISION
CERTIFICATE OF DETERMINATION – CONSENT ORDERS
| Applicant: | Guiseppina (Pina) Viney |
| Respondent: | Burwood Council |
| Date of Determination: | 6 October 2021 |
| Member: | John Isaksen |
By and with the consent of the parties, the Commission amends the Certificate of Determination dated 8 July 2021 and now determines:
The applicant sustained a psychological injury in the course of her employment with the respondent with a deemed date of injury of 8 November 2019.
The respondent has failed to establish a defence pursuant to section 11A of the Workers Compensation Act 1987.
The applicant has had a partial incapacity for work since 24 March 2020 as a result of her injury.
This Certificate of Determination (Consent Orders) is to be attached to the Certificate of Determination and Statement of Reasons dated 8 July 2021.
The Commission orders:
The respondent is to pay weekly payments of compensation to the applicant as follows:
(a) $1,626.80 per week from 24 March 2020 to 23 June 2020, pursuant to section 36 of the Workers Compensation Act 1987;
(b) $1,297 per week from 24 June to 30 June 2020 pursuant to section 37 (3) of the Workers Compensation Act 1987;
(c) $1,285.40 per week from 1 July 2020 to date and continuing pursuant to section 37 (3) of the Workers Compensation Act 1987.
The respondent is to pay the applicant’s reasonably necessary medical expenses for treatment for her psychological injury pursuant to section 60 of the Workers Compensation Act 1987.
Notations:
A.The respondent agrees to file a Notice of Discontinuance in the appeal it has filed (A1-W920/21) by 12 October 2021.
B.The applicant sought a reconsideration of the award of weekly payments for the period from 11 November 2019 to 23 March 2020, and the respondent consented to that reconsideration.
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