Walgett Shire Council v Barden
[2023] NSWPICPD 81
•14 December 2023
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Walgett Shire Council v Barden [2023] NSWPICPD 81 |
APPELLANT: | Walgett Shire Council |
RESPONDENT: | Christopher Barden |
INSURER: | StateCover Mutual Limited |
FILE NUMBER: | A2-W585/22 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 14 December 2023 |
ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 8 December 2022, as amended by Barden v Walgett Shire Council [2023] NSWPICPD 80 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – Section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 – fresh or additional evidence – Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; CHEP Australia Ltd v Strickland [2013] NSWCA 351 applied – section 11A of the Workers Compensation Act 1987 – where there is insufficient acceptable medical evidence to establish that the injury was wholly or predominantly caused by reasonable action by the employer in respect to discipline or termination of employment – onus rests upon the employer – Commissioner of Police v Minahan [2003] NSWCA 239 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr R Hanrahan, counsel | |
| Bartier Perry Lawyers | |
| Respondent: | |
| Mr P Stockley, counsel | |
| Carroll & O’Dea Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr G Whiffin |
DATE OF MEMBER’S DECISION: | 8 December 2022 |
INTRODUCTION AND BACKGROUND
Mr Christopher Barden (the respondent) was employed by Walgett Shire Council (the appellant) as an urban maintenance worker, operating from the Collarenebri depot. He commenced that employment in 2015.
The respondent alleged that, as a result of a number of events occurring in the course of his employment, he suffered a psychological injury. He ceased work on 12 April 2021 and lodged a claim for weekly payments and treatment expenses from that date, claiming that he had been bullied, harassed and unsupported by the appellant. The appellant declined the claim. The appellant asserted that the respondent did not suffer an injury as alleged, his employment was not a substantial contributing factor to any injury, or, if the injury was a disease, it was not contracted in the course of the respondent’s employment, and the employment was not the main contributing factor to the disease. The appellant further disputed liability on the basis that, if there was an injury, it resulted wholly or predominantly from reasonable action taken by the appellant with respect to discipline, performance appraisal, dismissal and provision of employment benefits in accordance with s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). The appellant also asserted that the respondent was not incapacitated for work and that any treatment expenses incurred by the respondent were not reasonably necessary as a result of a compensable psychological injury.
The respondent commenced proceedings in the Personal Injury Commission (the Commission). After some unfortunate procedural delays because of technical difficulties arising from the COVID-19 restrictions, the dispute came to an in-person arbitration before a Member of the Commission on 17 June 2022. The respondent gave oral evidence, and the parties were directed to lodge written submissions.
In the process of considering the evidence and the submissions, the Member felt compelled to list the matter for a further arbitration in order to bring to the attention of the parties his preliminary concerns in relation to the evidence of one of the appellant’s witnesses, Mr George Masoudi, and to afford the appellant the opportunity to make submissions about that evidence. The matter was listed for further arbitration on 29 September 2022 and Mr Masoudi was called by the appellant to give oral evidence. The parties were then directed to file further written submissions.
The Member issued a Certificate of Determination dated 8 December 2022 in which he determined that the respondent had suffered a “disease injury” within the meaning of s 4(b) of the 1987 Act and the respondent’s employment was the main contributing factor to the injury. He further determined that the injury was not wholly or predominantly caused by reasonable action taken by the appellant in respect of the actions relied upon. The Member ordered the appellant to pay the respondent’s treatment expenses pursuant to s 60 of the 1987 Act and awarded the respondent weekly payments of compensation from 14 April 2021 to 17 September 2021. He entered an award for the appellant in respect of the weekly payments claim for the period beyond 17 September 2021 because he was not satisfied that there was sufficient evidence before him to support a claim for incapacity after that date.
On 20 December 2022, the respondent in this appeal appealed the Member’s determination in respect of the award in favour of the appellant relating to his claim for weekly compensation for the period after 17 September 2021 (matter number A1-W585/22). That appeal was allocated to me and I determined that the Member erred in respect of that weekly payments claim. I amended the Certificate of Determination, revoking the orders pertaining to weekly payments of compensation.[1]
[1] Barden v Walgett Shire Council [2023] NSWPICPD 80 (Barden v Walgett Shire Council).
In this appeal, the appellant appeals the Member’s determinations that the respondent suffered an injury and that the injury did not wholly or predominantly result from reasonable action taken by the appellant with respect to discipline, dismissal or provision of employment benefits pursuant to s 11A(1) of the 1987 Act.
Where necessary, this decision is to be read together with the earlier decision in Barden v Walgett Shire Council.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
The appellant initially indicated that an oral hearing would be preferable because the 28-day period for lodging the appeal fell during the Christmas period within which there were three public holidays, and the period was thus shorter than 28 days.
Although the appeal was accepted, it did not comply with the Personal Injury Commission Rules 2021 and Procedural Direction WC3 – Presidential appeals and questions of law. On 10 January 2023, a delegate of the President issued a Direction to the parties, providing the appellant with the opportunity to file amended submissions that complied with the procedural requirements. The appellant lodged amended submissions on 17 January 2023. In that document the appellant indicated that it was likely that, given the further period available within which it could amend its submissions, the appeal could be determined solely on the basis of the written submissions.
The respondent indicated that he is content for the matter to be determined on the basis of the written material.
I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
ADDITIONAL EVIDENCE
Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The appellant seeks to have its 24-page letter of instruction dated 5 July 2021, which was directed to Dr Jeff Bertucen, psychiatrist, admitted into evidence on the appeal. Dr Bertucen was requested by the appellant to examine the respondent and provide an opinion in respect of the appellant’s liability in this matter.
The appellant submits that the Member erred in the consideration of Dr Bertucen’s opinion by speculating that Dr Bertucen did not consider Mr Masoudi’s statement because he did not mention it. The appellant submits that the letter was available and could have been tendered at the arbitration had the Member raised the issue with the appellant, but the Member did not do so and proceeded to an unjustified assumption in respect of Dr Bertucen’s evidence.
The respondent submits that the document does not satisfy the criteria set out in s 352(6) of the 1998 Act. The respondent asserts that “the receipt of the ‘new’ evidence is not said to found the basis of an appeal ground.”[2] The respondent contends that the application for leave to have the document admitted should be dismissed, or alternatively, if consideration is to be given to it, he ought to be given the opportunity to respond.
[2] Notice of Opposition to Appeal Against the Decision of a Member (opposition), submissions, [4].
Consideration
The document was clearly in existence prior to the arbitration hearings and was clearly available to the appellant to tender had it wished to do so. It is thus not “fresh” evidence for the purpose of s 352(6). In accordance with s 352(6), I can therefore only grant leave if I am satisfied that a substantial injustice would occur if leave was not granted.
The appellant submits that, had the Member given the parties a warning that he was intending to conclude that Dr Bertucen had not considered the evidence of Mr Masoudi, it would have tendered the letter of instruction at the arbitrations. The Court of Appeal considered the former Workers Compensation Commission’s power to admit additional evidence on appeal (which applies equally to the powers of the Personal Injury Commission) in Northern New South Wales Local Health Network v Heggie,[3] in which Basten JA said that:
“the basic purpose of the power in s 352(6) is to allow the Commission to admit further additional evidence which, if accepted, would be likely to demonstrate that the decision appealed against was erroneous.”[4]
[3] [2013] NSWCA 255 (Heggie).
[4] Heggie, [66].
In CHEP Australia Ltd v Strickland,[5] Barrett JA discussed the test to be applied in consideration of whether the failure to admit late documents would cause a substantial injustice. At [30]–[31] of the decision, his Honour said:
“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[5] [2013] NSWCA 351 (Strickland).
The letter of instruction contained a detailed summary of the facts and the statement evidence, including that of the respondent and Mr Masoudi. The appellant posed a series of questions that it asked Dr Bertucen to address, none of which specifically asked the expert to address the evidence provided by Mr Masoudi. All of the statements referred to were said to be attached to the letter. It is clear that Mr Masoudi’s evidence was available to Dr Bertucen.
In assessing the evidence of Dr Bertucen, the Member’s relevant observations were that:
(a) Dr Bertucen’s opinion rested upon the evidence of the respondent and Mr Ranjit in respect of what had occurred;
(b) Dr Bertucen did not refer to Mr Masoudi’s evidence or the events that occurred involving Mr Masoudi on 14 April 2021 in drawing his conclusion, in circumstances where the respondent’s psychological condition regressed following those events, and
(c) the history relied upon by Dr Bertucen was that Mr Ranjit was continuing to harass the respondent in respect of his time sheet discrepancies after the respondent returned to work in March 2021, which was plainly incorrect.[6]
[6] Reasons, [273]–[276].
At best, the letter establishes that the evidence from Mr Masoudi was provided to Dr Bertucen and he was informed as to the substance of Mr Masoudi’s evidence. The Member’s observations did not assert that Dr Bertucen did not have that evidence before him, the Member merely expressed the concern that Dr Bertucen’s reasons for his opinion did not include that evidence in his consideration. In my view, the document could not be described as “compelling” evidence that, if admitted, would affect the outcome of the case.[7] I cannot see how the failure to admit this evidence would create a “substantial injustice” as is required before I can exercise my discretion in favour of the appellant. The document is not admitted.
THE EVIDENCE
[7] Strickland, [27]–[32].
The respondent’s statements
The respondent provided a statement which was taken on 31 May 2021 and 3 June 2021.[8] He said he had been employed by the appellant for six years and was placed at the Collarenebri Depot, with Mr Masoudi (acting team leader) as his direct line of report from 18 March 2021. He said that his previous supervisor had been Patrick Willis.
[8] Application to Resolve a Dispute (ARD), pp 1–15.
The respondent indicated that on 27 January 2021, he was called to a meeting with Mr Raju Ranjit, the engineer and director, and Mr Peter Ricardi, the utilities manager. He said the secretary to the general manager was present (Ms Bronte Kerr), who took the minutes of the meeting and the union delegate, Mr Tony Fuller, also attended as the respondent’s support person. The respondent said that Mr Ranjit advised him that he was being stood down while an investigation into time sheet fraud was undertaken. He said that Mr Ranjit gave him the dates upon which the allegations were said to have occurred, but he was unable to recall what happened on those particular days. The respondent then said that he informed Mr Ranjit that he had performed the work on those days but had used his personal car instead of the appellant’s vehicle. He said he explained to Mr Ranjit that he had the care of his children on those days so he could not use the appellant’s vehicle because it was a breach of the code of conduct to take children in the work vehicle.
The respondent stated that Mr Ranjit informed him that the appellant’s vehicles were fitted with a tracking device. The respondent advised that he requested the documents relating to the allegations, but Mr Ranjit refused to give them to him at that stage, despite Mr Ranjit having the documents before him. The respondent said that he repeatedly told Mr Ranjit why he had taken his own vehicle to work but Mr Ranjit continued to question him, including asking the respondent what work he performed on 22 November 2021 when he was on call.
The respondent indicated that Mr Fuller advised the respondent to call a stop to the meeting because the appellant’s conduct was wrong and advised the respondent to obtain legal advice. The respondent stated that the meeting was terminated, and he was stood down on full pay. The respondent indicated that he felt “targeted” by Mr Ranjit in relation to failing to complete his duties.
The respondent said that a day or two later he received a letter confirming the subject matters talked about at the meeting and alleging that he had claimed for hours not worked, incorrectly claimed overtime and failed to inspect some of the facilities, including those at the airport and the oval. He advised that the dates concerned were the weeks ending 22 November 2020 and 20 December 2020. He said he had still not received the papers relating to the allegations, so he was confused as to the specific dates and times involved.
The respondent stated that on 3 February 2021 he received a letter from the General Manager, Mr Michael Urquhart, requesting a response by 17 February 2021 as to why his employment should not be terminated and he was requested to attend another meeting at the head office in Walgett on 24 February 2021. The respondent said that, with the help of a union representative (Mr Jamie McKinnon), he replied to the general manager, explaining why he had used his own vehicle on 22 November 2020 and explaining that on 17 December 2020, all staff were directed to complete their time sheet in advance for 18, 19 and 20 December 2020 (when he was to be on call) in order to make it easier to calculate the wages after the Christmas shutdown. He said that he could only give an estimate of the hours to be worked.
The respondent advised that he attended the meeting in Walgett on 24 February 2021 with Mr McKinnon as his support person. He said he was told that the appellant was no longer investigating the 2020 time sheets but they were still investigating the claimed call outs and weekend work. He indicated that he was upset because he felt that Mr Ranjit was actively searching for problems in order to terminate his employment. He said that Mr McKinnon requested more information to be provided by the appellant in order to prepare a response. The respondent stated that Mr Urquhart advised him that he would continue to be stood down with full pay until further notice.
The respondent indicated that he (with Mr McKinnon as his support person) attended a further meeting at Walgett on 17 March 2021. He said that Mr Urquhart, Mr Ricardi and Mr Ranjit were present. He said he was handed some paperwork, including a copy of the GPS tracking records. The respondent stated that Mr McKinnon told those present that there were no stickers on the vehicles to inform staff that the vehicles were fitted with trackers, the GPS records could not be used for the purpose intended by the appellant and the use of the trackers could only be used for emergency and insurance purposes. The respondent said that he explained why he had used his private vehicle, that everything he required in order to do the work was on the jobsite and his children waited in his car while he did the job. The respondent indicated that, at this stage, he was becoming upset and cranky that they were accusing him, so he excused himself and took a break. He said that Mr McKinnon came out of the meeting and told the respondent that he was to start back at work on 18 March 2021 for a probationary period of three months with no overtime or weekend work.
The respondent stated that he returned to work on 18 March 2021 and during the day, Mr Ricardi handed him a letter of formal warning, which he signed and handed back to Mr Ricardi. He added that, later that day, he was picking up rubbish in the town when Mr Masoudi pulled up in a car and queried what he was doing. He said he told Mr Masoudi and Mr Masoudi responded in a sarcastic manner that he did not have to pick up all of the rubbish in one day and he should leave some to the following day. The respondent stated that he felt that Mr Masoudi was intentionally trying to make him angry so that there would be a reason to terminate his employment.
The respondent referred to a number of further events that took place, namely that:
(a) he was on a rostered day off on 19 March 2021 and was contacted by the acting supervisor, who advised him that Mr Ranjit had enquired as to why the respondent was on a rostered day off. The respondent said that he felt that Mr Ranjit was trying to get information in order to terminate his employment;
(b) on 23 March 2021, he advised Mr Masoudi that he might have to finish at lunch time because two of his children were sick, and Mr Masoudi told him he was required to work. He said that when he protested, Mr Masoudi accused him of shouting, so the respondent asked two co-workers who were present as to whether he was shouting and they replied that he was not;
(c) on the same day, one of the other co-workers told Mr Masoudi about doing a personal errand during work time and Mr Masoudi and another worker laughed. The respondent indicated that he became angry because everything he was doing was being checked, but the other co-workers did not get into trouble;
(d) on 25 March 2021, a co-worker was drinking beer in Mr Masoudi’s presence at work before they had finished work for the day but the co-worker was not chastised. The respondent said that he felt targeted because the appellant was not chastising other staff for doing the wrong thing;
(e) on the following day, Mr Masoudi questioned him about who had consumed the beer. The respondent stated that Mr Masoudi was already aware of who had done that, so the respondent felt that Mr Masoudi was trying to get the respondent to say he drank the beer in order to have the respondent instantly dismissed;
(f) on 30 March 2021, the respondent informed Mr Masoudi in person at 6.45 am that he could not work that day and probably the following day because of health issues involving his daughter which were days he was entitled to take leave without a medical certificate;
(g) in the morning of 12 April 2021, he sent a text message directed to the supervisor’s work mobile telephone advising that he could not work because he was ill, which happened to be a random drug testing day. The respondent stated that he was unaware that the drug testing was occurring;
(h) the following day the respondent was off work again with sick leave and was contacted by Mr Masoudi at 4.50 pm, who told him to see Mr Masoudi that afternoon at the depot. The respondent said he went to the depot and Mr Masoudi handed him a letter from Mr Ranjit in which the respondent was directed to attend a further meeting in Walgett on 15 April 2021;
(i) on 14 April 2021, the respondent handed to Mr Masoudi a doctor’s certificate for the sick leave from 12 April 2021 to 16 April 2021 and he noticed his time sheet for the week before was sitting on a desk in the crib room. The respondent queried why his time sheet was still there and Mr Masoudi responded in a sarcastic manner that he had forgotten to hand it in. The respondent said he swore at Mr Masoudi and complained that Mr Masoudi knew he was being investigated. The respondent said he told Mr Masoudi that the failure to put in a time sheet was another reason for Mr Ranjit to terminate his employment. The respondent said that he then personally took the doctor’s certificate and the time sheet to Walgett and put them on the pay roll desk;
(j) on 18 April 2021, Mr Masoudi attended at the respondent’s home address and handed the respondent a letter dated 19 April 2021, that the respondent was required to sign, in which the respondent was requested to show cause as to why his employment should not be terminated;
(k) on 27 April 2021 the respondent wrote down what had occurred and emailed the information to the appellant on 28 April 2021;
(l) on 3 May 2021, the respondent attended his usual general practitioner, Dr Julian White, who issued him with a certificate of capacity certifying him as unfit for work until 17 May 2021. The respondent said he was referred for counselling through the employee assistance program and he also consulted a psychologist at Walgett;
(m) on 5 May 2021, while still off work, he spoke with a female at the petrol station who advised the respondent that an employee of the appellant had urged her to apply for the respondent’s job, which the respondent stated was a breach of privacy, and
(n) on 2 June 2021, the work health and safety officer and rehabilitation co-ordinator came to his home and asked him to highlight on a map the roads he drove when using his private vehicle. The respondent stated that he could not mark up the map for every date that Mr Ranjit had referred to because there were so many. He added that he did not recall which of his children were ill or the dates on which they were ill.
The respondent said that he commenced taking anti-depressants and sleeping tablets in January 2021 and his doctor increased the dose in March 2021. He said that he had not had any psychological issues prior to January 2021 and had no stressors outside of his employment. The respondent advised that he got along well with his work colleagues but had difficulty with Mr Masoudi and management.
The respondent provided a further statement dated 15 November 2021.[9] He indicated that his earlier statement did not include details of events that had occurred in 2018. He said that, on a day in 2018, he was at the Collarenebri depot when a street brawl was happening that involved fighting and throwing rocks. He said one of the group came into the office and he asked the person to leave. He said he was then cornered by several members of the group, which he found intimidating. He said this event was witnessed by a number of the appellant’s employees and members of the public.
[9] ARD, pp 17–18.
The respondent stated that, thereafter, he was approached on numerous occasions by members of the group who threatened harm to him and his family while he was performing duties for the appellant. He said he reported the incident to human resources and co-workers and members of the public provided statements verifying what had occurred.
The respondent indicated that he was subsequently astonished to be served with a requirement to attend court in respect of an apprehended violence order filed by one of the group. He said that the appellant refused to assist him in the court process and he had to attend without legal representation, which made him feel ostracised and completely unsupported. He stated that he accepted the order as he had no intention of approaching the complainant and he wanted to get the court process over and done with. The respondent indicated that the order was reviewed in 2019, at which time he retained legal representation and the court was shown the statements of co-workers and members of the public who had provided statements about the street brawl and the order was dismissed. The respondent said that he felt disillusioned and very depressed about the threats. He stated that he felt that, since the incident in 2018 and the issue with the apprehended violence order, his supervisor had a different view about him.
The respondent described the medical treatment he had been receiving since 14 April 2021 and indicated that he did not feel capable of performing any work.
The respondent also provided a short, hand-written account dated 27 April 2021 of what transpired on 14 April 2021.[10] He said he attended work that day in order to apologise to Mr Masoudi for his failure to give him notice of his absence the day before. The respondent’s account of what transpired thereafter on that day was consistent with his earlier statement evidence. In addition, he advised that two co-workers (Mr Geoff Lowey and Mr Bob Hancock) were present in the room at the time.
[10] Reply to Application to Resolve a Dispute (reply), p 1.
The respondent provided a further statement dated 23 March 2022.[11] He referred to his earlier statement in relation to the behaviour of the community member, Mr Murray, which he said occurred in 2017, rather than 2018. He said that the intimidatory conduct of Mr Murray and his family continued through to 2019 and less frequently up until he ceased work in 2021 and that, when he was at work, he was fearful of his safety because of that conduct. He reported that he continued to experience symptoms of extreme depression and worthlessness, was unable to concentrate and was unmotivated. He explained that it was difficult to access medical treatment in Collarenebri and he was not able to obtain ongoing medical certificates during late 2021 and early 2022, until his general practitioner returned from New Zealand.
[11] Application to Admit Late Documents (AALD) dated 22 April 2022, pp 4–5.
The respondent also provided oral evidence at the arbitration on 17 June 2022. He confirmed that his treating general practitioner, Dr White had been overseas for some time, but had returned at about Easter time in 2022. The respondent said that he continued to consult Dr White but there had been no change in his condition.
The respondent confirmed his statement evidence as to what occurred on 14 April 2021. He said that it was Mr Masoudi’s responsibility to sign off on the times recorded in the time sheets and take the time sheets to Walgett every Monday morning. He said he was unaware how the time sheet came to be in the crib room because he had left the document on Mr Masoudi’s desk. He denied having yelled at Mr Masoudi and said that he was not upset, but he was cranky at that time. The respondent confirmed that Mr Masoudi had said that he forgot to hand in the time sheet.
The respondent indicated that he had sent a text to Mr Masoudi on Monday 13 April to advise him he was sick and unable to work and Mr Masoudi acknowledged the message with a text message saying “O.K.” The respondent also explained that when the incidents occurred involving Mr Murray, he requested a transfer to a different job, such as on the road crew, but the appellant did not offer him any assistance.
The respondent otherwise confirmed his statement evidence.
Mr Raju Ranjit, former director of engineering and technical services
A statement by Mr Ranjit taken over a two-day period (on 1 June 2021 and 29 June 2021) was in evidence before the Member.[12]
[12] Reply, pp 12–25.
Mr Ranjit said that he held a meeting with the respondent on 27 January 2021. He said he had provided the respondent with written notice of the meeting three or four days beforehand, so that the respondent could arrange to have a support person in attendance. He said he also informed the respondent of the contact details for the employee assistance program.
Mr Ranjit stated that, at the meeting, he informed the respondent that he was investigating three alleged issues in relation to the respondent’s normal working hours and overtime being incorrectly recorded in his time sheets for the weeks ending 22 November 2020 and 20 December 2020 and the respondent failing to inspect essential services, including at the airport and the town oval. He said he advised the respondent that he had compared the time sheets and the data from the vehicle tracking system which disclosed significant discrepancies.
Mr Ranjit advised that he provided the respondent with the opportunity to explain the discrepancies, and the respondent replied that the allegations were wrong, the tracking system could not be used for that purpose and that he had performed his duties using his own car. Mr Ranjit said that he then reminded the respondent that he had been provided with a copy of the appellant’s policy about using a work vehicle to perform his duties, and advised the respondent that the matter was serious and potentially involved a breach of the code of conduct. Mr Ranjit referred to interjections made by Mr Fuller, the union representative who was present as the respondent’s support person. He said he advised the respondent that he was being stood down on full pay pending an investigation and the respondent and Mr Fuller then left the meeting.
Mr Ranjit explained the importance of performing the inspection of the essential services and said that the matter had come to his attention following a complaint by a member of the public, which prompted the investigation. He added that each staff member was given a copy of the policy relating to the tracking system when it was installed and that it allowed for the system to identify the whereabouts of a vehicle when there was a serious time discrepancy recorded.
Mr Ranjit asserted that he acted in a professional and appropriate manner and in accordance with the appellant’s policies and procedures and did not harass or intimidate the respondent. He noted that the respondent had several days’ notice of the meeting, had with him a support person and was provided with the details of the employee assistance program. He said that he wrote to the respondent on 28 January 2021 and confirmed the outcome of the meeting.
Mr Ranjit advised that he spoke with Mr Urquhart about the meeting and Mr Urquhart requested him to conduct a further investigation and collate all of the documentation showing the discrepancies. He said he continued to report to Mr Urquhart regularly about the matter. He said Mr Urquhart told him that, as the allegations were serious and the respondent had not provided a satisfactory explanation, he intended to write to the respondent, requesting him to respond in writing in order to show cause why his employment should not be terminated.
Mr Ranjit advised that Mr Urquhart forwarded the letter on 3 February 2021 and gave the respondent until 24 February 2021 to respond. He said that the respondent replied on 12 February 2021 telling the appellant that he sometimes had the responsibility of his children when working and on those occasions would use his own vehicle, that he had never claimed for hours when he had not worked and he had completed the tasks allegedly not performed by using his own vehicle. Mr Ranjit said that the respondent also said that on 17 December 2021, he had been directed to estimate his hours for the days leading up to the Christmas shut down period. Mr Ranjit advised that he had intended to provide the respondent with a copy of all of the documentation at the meeting on 27 January 2021, however, the respondent and Mr Fuller left the meeting before he was able to do so.
Mr Ranjit referred to the meeting on 24 February 2021 and advised that he had forwarded to Mr McKinnon, the respondent’s union representative, an email attaching a copy of all of the documentation that he had compiled. He said that the respondent’s time sheets and the data from the tracking system that had logged times, dates and locations in relation to the use of the vehicle relating to the period 29 June 2020 to 19 January 2021 were included.
Mr Ranjit provided excerpts from the verbal exchange that took place in the meeting in relation to the entries in the time sheets when the respondent claimed he was working but the tracking system in his vehicle did not record any movement. He said that the respondent explained that he either walked to the site, which Mr Ranjit considered implausible in the time frame within which the respondent said he performed the work, or he drove his own car because he had the care of his children.
Mr Ranjit recalled that Mr Urquhart advised the respondent that he was stood down until further notice on full pay. Mr Ranjit added that, during the meeting the respondent became quite heated and had left the room for about ten minutes in order to calm down.
Mr Ranjit advised that the appellant made a decision to provide the respondent with a final opportunity to improve his performance and, on the advice of the NSW Local Government Advisor, a final warning would be issued. Mr Ranjit said that on or about 8 March 2021, the appellant received correspondence from the General Secretary of the union which the appellant considered. He said that after receiving further advice from the NSW Local Government Advisor, the appellant determined that the respondent was to be returned to work and the respondent was to be advised of this at a meeting on 17 March 2021. Mr Ranjit denied the respondent’s assertion that he was being “targeted,” and explained that other staff were also being investigated for similar matters.
Mr Ranjit said that at the meeting on 17 March 2021, the respondent was told that he would be given a final warning letter and could return to work on 18 March 2021. He said Mr Urquhart told the respondent that he would be on a performance management plan for 12 months, without overtime, which would be reviewed quarterly, and that during the period of the plan, the respondent was to act respectfully to colleagues and management. Mr Ranjit said that the respondent was happy about the return to work. Mr Ranjit recalled that he and Mr Ricardi travelled to the Collarenebri depot and handed the respondent the letter of formal warning.
Mr Ranjit indicated that he was contacted by Mr Masoudi on 30 March 2021, who advised him that the respondent had attended work that day but reported that he was taking the day off for family reasons. Mr Ranjit said that the respondent did not attend work on 31 March 2021 or on 1 April 2021 and did not advise the appellant he would be absent, but subsequently provided a medical certificate for his absence. Mr Ranjit advised that the respondent again failed to attend work on 12 and 13 April 2021, but produced a medical certificate on his return to work. Mr Ranjit said that he wrote to the respondent on 13 April 2021 requesting him to attend a meeting on 15 April 2021 in order to discuss his absences from work. He said Mr Masoudi hand delivered the letter to the respondent. Mr Ranjit said that he was advised by Mr Masoudi that the respondent returned to work on 14 April 2021 but had acted in an aggressive manner toward Mr Masoudi and other workers and abruptly left a meeting without advising anyone.
Mr Ranjit said that he conferred with Mr Urquhart in relation to what action should be taken and a meeting was arranged for 15 April 2021. He said that the meeting did not take place because the respondent was not at work that day.
Mr Ranjit indicated that he wrote to the respondent on 16 April 2021 requesting the respondent to provide a written response by 26 April 2021 as to why his employment should not be terminated because of his recent behaviour and requesting the respondent to attend a further meeting on 3 May 2021. Mr Ranjit said that the letter was delivered to the respondent by Mr Masoud, and the respondent was informed that he had been suspended again on full pay until the meeting.
Mr Ranjit advised that the meeting did not proceed because the respondent was on leave with a medical certificate. He added that the respondent had been certified as unfit for work until July 2021.
Mr Peter Ricardi, acting urban utilities manager
Mr Peter Ricardi, the appellant’s acting urban utilities manager, provided a statement dated 1 June 2021.[13] He confirmed that he attended a meeting with Mr Ranjit and the respondent on 27 January 2021 which was organised to discuss discrepancies between the respondent’s time sheet and the times recorded on the vehicle tracking system of the respondent’s work vehicle. He advised that he was not aware prior to the meeting of the issues to be discussed, which he described as extensive.
[13] Reply, pp 2–11.
Mr Ricardi’s evidence as to what transpired in the meeting largely accorded with the evidence provided by Mr Ranjit.
In addition, Mr Ricardi described the meeting as an information gathering process for Mr Ranjit and said the respondent was given the opportunity to provide an explanation. Mr Ricardi denied that there was any bullying or inappropriate behaviour on the part of Mr Ranjit, who he described as mild-mannered, polite, softly spoken and professional. He considered that the meeting was conducted in accordance with the appellant’s policy and process in that the respondent had a support person with him, he was given notice of the meeting, given an opportunity to explain and it was explained to the respondent that he was being stood down pending further investigation.
Mr Ricardi stated that there was a similar meeting conducted with Mr Patrick Willis on 3 February 2021 in order to discuss issues of the same nature and discrepancies throughout the entire team at Collarenebri were being investigated. He observed that that lent support to the fact that Mr Ranjit was not targeting the respondent.
Mr Ricardi said that another meeting was conducted with the respondent on 24 February 2021 which was a follow up from the meeting on 27 January 2021. Again, Mr Ricardi’s recollection of what occurred at that meeting was consistent with Mr Ranjit’s evidence. He said that Mr Urquhart had taken notes of the meeting so he would have a better recollection of what was discussed. Mr Ricardi added that, throughout the meeting, Mr Ranjit acted in a professional and appropriate manner.
Mr Ricardi advised that he attended a further meeting with the respondent on 17 March 2021, which was led by Mr Ranjit and in which Mr Ranjit confirmed that the appellant was reviewing the time sheets for six months and the vehicle tracking data for that period. He said that the union delegate pointed out that the tracking system did not track the person. He added that the respondent protested that Mr Ranjit was making a personal attack on him, which was denied by Mr Ranjit and Mr Ranjit advised the respondent that the issue was being investigated in relation to several staff.
Mr Ricardi observed that the respondent became quite agitated during the meeting and the union representative stated that the respondent needed to return to work. Mr Ricardi recalled that Mr Urquhart advised that the appellant needed to prepare a return to work letter, which he would attend to. Mr Ricardi again observed that during the meeting Mr Ranjit was professional and courteous to the respondent and both the respondent and the union representative appeared happy with the outcome. He noted that the respondent was provided with notice of that meeting and he had a support person present.
Mr Ricardi stated that the respondent returned to work on 18 March 2021. He said he handed the respondent a letter which was a final warning and the respondent signed it and returned it to Mr Ricardi, who passed it on to Mr Ranjit. Mr Ricardi advised that he prepared a performance management plan for the respondent, which was sent to Mr Masoudi so that Mr Masoudi could meet with the respondent and discuss the plan with him. Mr Ricardi said that the plan was based on a signed agreement and was issued to the respondent, whose performance would be monitored for 12 months with a quarterly review. He advised that the respondent was to be given no overtime, but that would be reviewed at the quarterly review and the respondent was required to be respectful towards his colleagues and management.
Mr Ricardi said that he received an email from Mr Masoudi on 2 April 2021, advising that the respondent had notified that he was experiencing family issues that required him to be off work on 30 March 2021. He said that Mr Masoudi further advised that the respondent did not attend work on 31 March 2021 or 1 April 2021 and failed to notify the appellant that he would be absent on those days.
Mr Michael Urquhart, general manager
Mr Urquhart provided a statement taken on 31 May 2021 and 24 June 2021.[14] He confirmed that a meeting was held with the respondent on 24 February 2021 to discuss the respondent’s reply to a “show cause” letter dated 3 February 2021. His evidence of what occurred at the meeting was also consistent with that of Mr Ranjit. He added that the respondent explained that, in respect of the time sheet for 18, 19 and 20 December 2020, the respondent was directed to provide that time sheet on 17 December 2020. Mr Urquhart said that when the staff returned to work after the shut-down period, they were required to adjust those time sheets to reflect the hours they actually worked. Mr Urquhart indicated that on the same day he compiled a letter confirming the outcome of the meeting which was to be sent to the respondent.
[14] Reply, pp 55–63.
Mr Urquhart advised that on about 10 March 2021, the respondent was requested by letter to attend a meeting on 17 March 2021, which gave the respondent enough time to organise a support person. His evidence about what happened at the meeting was also consistent with the evidence from Mr Ranjit. He said he did not recall the specific dates of the discrepancies, but they were numerous and of concern. Mr Urquhart observed that the respondent became quite agitated on two occasions during the meeting and left the meeting for a while, complaining as he was leaving that he had been bullied and targeted by Mr Ranjit. Mr Urquhart said that while the respondent was absent from the meeting, the union representative suggested that the respondent be placed on a performance management plan for 12 months with no overtime in the first three months. He said that the outcome was that the respondent would be placed on the performance improvement plan, with the respondent returning to work the following day (18 March 2021) and the respondent was issued with a final warning letter.
Mr Urquhart asserted that there was absolutely no bullying, unprofessional conduct or inappropriate behaviour towards the respondent by anyone at any of the meetings. He added that a final warning was justified as the respondent had already received a first warning for inappropriate conduct in respect of abusing his former supervisor, Mr Patrick Willis, and the respondent’s answer to show cause why his employment should not be terminated was unsatisfactory.
Mr Urquhart stated that the process complied with the appellant’s processes and procedures. He referred to a union complaint that the process was not conducted in a timely manner and denied that that was the case. He conceded that the process took some time but explained that there was a significant amount of data to consider and that, in order to maintain confidentiality, the appellant did not involve other staff members in the investigation, which slowed the investigation process.
Ms Julie McKeown, human resources manager
Ms McKeown made a statement dated 3 June 2021.[15] She advised that she attended the meeting on 17 March 2021. Her recollection of what occurred was consistent with the evidence of the other employees of the appellant. She added that she actually took a note of a comment by Mr Urquhart that was made when the respondent was out of the room that:
“I’ll agree to let him return to work, one foot out of place, one cross word and he’s gone.”[16]
[15] Reply, pp 26–31.
[16] Ms McKeown’s statement, [13].
She said that she was not involved in the investigation process.
Ms McKeown made a further statement dated 13 December 2021.[17] She advised that on 20 July 2017, she was informed of an incident involving the respondent and a member of the community. Ms McKeown stated that, on the following day, she was advised that the respondent was very upset and ceased work because the offender and his family were threatening him while he was picking up rubbish and the offender was following him. She said she advised that the respondent should report the matter to the police as it was a civil matter. Ms McKeown said that she noted both incidents in her diary and also recorded that the respondent had spoken to a police officer. She provided a copy of the diary note.
[17] Reply, pp 78–85.
Ms McKeown indicated that she followed up the incident the following week and was informed that the offender had been charged. She added that Mr Willis (who had witnessed the incident) and the respondent completed statements about the incident and annexed copies of the statements to her statement. Ms McKeown advised that she had several conversations with the respondent about the incident, who accused her of failing to support him, to which she responded by telling him that it was a civil matter and in the hands of the police. She said an apprehended violence order was imposed upon the offender.
Mr George Masoudi, acting team leader
Mr Masoudi provided a statement dated 1 June 2021 and 24 June 2021.[18] He advised that he was appointed to the position of acting team leader in March 2021, and he first met the respondent on 18 March 2021 when the respondent had returned to work after being stood down. He said that from the time he had been in the acting role, the respondent had only worked an estimated time of three weeks. He observed that the respondent could work well at times but had a bad temper which would erupt over minor issues. He said that this behaviour affected the respondent’s overall work performance. Mr Masoudi added that he requested that the respondent work with him on 18 March 2021 as it was his first day back from his suspension.
[18] Reply, pp 64–77.
Mr Masoudi did not recall having spoken to the respondent about picking up rubbish and denied saying to the respondent that he did not have to pick up all the rubbish on that day. He thought that perhaps the respondent was mistaken about the date that that event was said to have occurred, as there were numerous days when rubbish collection had occurred.
Mr Masoudi stated that on 22 March 2021, the respondent refused to “take the keys and perform cleaning jobs because he was scared to get in trouble”[19] so Mr Masoudi took the respondent with him, and they completed operational work at the water treatment plant and sewage effluent ponds. Mr Masoudi said that the respondent later undertook mowing and whipper snippering work, which he performed satisfactorily. Mr Masoudi recalled that the respondent told some staff that two of his children were home sick on that day, but Mr Masoudi said the respondent did not have that conversation directly with him.
[19] Mr Masoudi’s statement, [16].
Mr Masoudi recalled that on 22 March 2021, he had a conversation with the respondent in which the respondent became quite heated and asserted that he had told Mr Masoudi his children were sick.
Mr Masoudi did not recall a staff member drinking beer on 25 March 2021, but said that, if it did occur it would have taken place after the workday had finished. He said he had never witnessed any staff from the depot drinking alcohol on the job. He added that he was probably not paying attention to what the staff were doing if he was on the telephone or if work had finished for the day. Mr Masoudi conceded that he did know there had been a bottle of beer in the refrigerator and that the following day, he asked the respondent about it as it was no longer there. He said he was not attempting to get the respondent in trouble.
Mr Masoudi said that the respondent came to work on 29 March 2021 and for the first time after he had returned to work, took the keys and agreed to undertake cleaning tasks. Mr Masoudi considered that this was a positive step towards the respondent getting back to his normal duties.
Mr Masoudi indicated that on 30 March 2021 the respondent came to work early but said that he needed to take the day off because of family issues. Mr Masoudi said that he advised the respondent he could have the day off but that he should try to “sort out the family.” Mr Masoudi said that the respondent did not attend work on 31 March 2021 and did not notify him that he would be absent. Mr Masoudi stated that he informed Mr Ricardi about this incident on 2 April 2021, and he reported the incident to Mr Ranjit.
Mr Masoudi advised that the respondent attended work on Tuesday 6 April 2021, completed his allocated tasks without issue and continued to work for the rest of the week without issue. He said that he received a text message from the respondent on 12 April 2021 advising that he would not be in that day but would be in the following day.
Mr Masoudi said that the respondent did not come to work on 13 April 2021. He advised that on that day he was contacted by Mr Ranjit, who told him that he wanted Mr Masoudi to deliver a letter that day requesting the respondent to attend a meeting on 15 April 2021, and that, as the respondent had not come into work, Mr Masoudi should check on his welfare.
Mr Masoudi stated that he contacted the respondent and arranged for the respondent to come to the depot and the respondent attended at about 5 pm. He said he handed the respondent the letter, who signed it and returned it back to Mr Masoudi. Mr Masoudi said he offered to take the respondent to the meeting and the respondent agreed.
Mr Masoudi indicated that the respondent turned up for work on 14 April 2021 and appeared happy and relaxed. He said that he told the staff he would allocate the tasks for the day and then sat with the respondent and another worker to discuss their duties for the day. He said that the respondent suddenly jumped up and yelled loudly that Mr Masoudi had not lodged his time sheet. Mr Masoudi asserted that the respondent was very angry and insisted on taking his time sheet to Walgett to be lodged, even though Mr Masoudi said (in a calm manner) that he would do it for him. Mr Masoudi indicated that the respondent made threats of taking the appellant to court.
Mr Masoudi disputed that he spoke to the respondent sarcastically or in a condescending manner and asserted that he was unaware of the nature of the issues relating to the appellant’s investigations. He added that the time sheet was under some magazines and other papers on the table in front of the seat where the respondent normally sat, so he had no reason to look through those papers. Mr Masoudi said that the other staff gave their time sheets to him in his office or left them so that he could check them and submit them.
Mr Masoudi advised that on 15 April 2021, he called at the respondent’s house in order to pick him up and take him to the scheduled meeting. He stated that the respondent informed him that he was not attending the meeting and it had been called off. Mr Masoudi said that he rang Mr Ricardi and informed him, and Mr Ricardo said that the respondent should attend the meeting.
Mr Masoudi said that on Sunday 18 April 2021 he attended the respondent’s home and delivered a letter written and signed by Mr Ranjit and a few days later went again to the respondent’s home to collect the keys for the storerooms and the depot locks. He advised that he had not been told what was happening and he had not been told any details of what the respondent was being investigated about. He said he did not consider that the respondent had been bullied or harassed and that he had been required to attend the formal meetings because of his own actions and behaviours, which were contrary to the appellant’s policies and procedures. He added that he had attempted on occasions to enquire about the respondent’s well-being and at times the respondent would share personal matters but at other times he would not disclose issues that may have been impacting him.
Mr Masoudi gave oral evidence at the arbitration on 29 September 2022. He gave evidence that the staff would normally hand in their time sheets to him on Monday and he would then take the time sheets to Walgett that day, but occasionally a worker would hand in their time sheet before the Monday if they were to be on leave. Mr Masoudi confirmed that he had not been given a performance management plan relating to the respondent but was provided with a document in which he would report on the respondent’s absenteeism and the work he had completed.
Documentary evidence
A bundle of correspondence was in the evidence before the Member, comprising of correspondence passing between the respondent, Mr Urquhart, Mr Ranjit, and the general secretary of the United Services Union, as well as Mr McKinnon, union representative. The correspondence commenced from 13 February 2020 and comprised of warning letters and letters asking the respondent to show cause as to why his employment should not be terminated, responses by the union representatives and notification of meetings.[20]
[20] Reply, pp 112–131.
The correspondence confirms the procedural steps taken by the appellant but otherwise, the documents are not germane to any of the issues raised in this appeal.
The medical evidence
Dr Julian White, general practitioner
The respondent’s general practitioner, Dr White, provided a short report dated 29 July 2021.[21] He opined that the respondent suffered from severe anxiety and depression associated with poor sleep, lack of memory and concentration and felt withdrawn. He said the respondent was receiving counselling, advised to rest, and was prescribed medication.
[21] ARD, p 47.
Dr White was of the view that the respondent’s condition was exclusively caused by his employment and there were no other factors that contributed to his condition. Dr White confirmed that the respondent was not able to return to work because of his condition and, in his view, may not be able to work again.
The clinical notes of RaRMS Health – Collarenebri
The clinical notes of RaRMS Health at Collarenebri were in evidence.[22] The notes commenced from 5 April 2004. The respondent attended the clinic regularly over the years.
[22] ARD, pp 48–69.
The first note referring to psychological symptoms was on 14 December 2017.[23] The name of the practitioner conducting the examination was not noted. The reason for attendance was that the respondent suffered anxiety at work when “Graham” (likely to be a reference to Mr Murray), who was the subject of an apprehended violence order, came to the respondent’s work and was agitating the respondent. The respondent was prescribed sleeping tablets and certified as unfit for work for two days. The respondent was advised to consult the police about the breach of the order. On 18 December 2017, the respondent was feeling better and had returned to work.[24]
[23] ARD, p 61.
[24] ARD, p 61.
The respondent attended the surgery again on 28 January 2021, complaining of stress at work, feeling anxious and ruminating about work which was causing sleep disturbance. The respondent was diagnosed as suffering anxiety and depression, as well as bipolar disorder.[25] The respondent again complained of stress at work and feelings of depression in a telephone consultation with Dr White on 14 April 2021[26] and an in-person consultation on 19 April 2021.[27] Dr White noted that the respondent was attending counselling, experiencing disturbed sleep, low self-esteem, was feeling sad and tearful and had impaired memory and concentration. Dr White recorded that the stressors were “all related to work”.
[25] ARD, p 66.
[26] ARD, p 67.
[27] ARD, p 67.
On 3 May 2021, the clinical notes referred to “bullying at work” that had commenced in January of 2021. The respondent was issued with a workers compensation certificate of capacity[28] and was issued with further certificates up to 18 August 2021. The clinical notes ceased on that day.
[28] ARD, p 68.
Dr White issued a further certificate of capacity on 19 April 2022. He retrospectively certified the respondent as having no capacity for work from 11 November 2021 to 3 March 2022. Dr White explained that the absence of a contemporaneous certificate was caused by there being no medical practitioner in Collarenebri.[29]
[29] AALD dated 22 April 2022, pp 1–3.
Dr Frank Chow, psychiatrist
The respondent’s legal representatives arranged for the respondent to be medically assessed by Dr Chow. Dr Chow assessed the respondent by way of a Telehealth consultation on 29 September 2021 and provided a report dated 14 October 2021.[30]
[30] ARD, pp 42–46.
Dr Chow took a history of the respondent having first experienced difficulties at work two years previously, when a few local community members were fighting and throwing rocks at each other outside the depot where he worked. Dr Chow recorded the history that an individual came into the depot and as the respondent stepped out to get the individual to leave, the respondent was cornered and attacked by members of the group. Dr Chow noted that, after the respondent returned to work, the same individual continued to harass him, so he reported the matter to the police. Dr Chow said that the respondent complained that he was then unfairly served with an apprehended violence order. Dr Chow recorded that the apprehended violence order was lifted after 12 months but the individuals concerned made repeated requests to have the order reinstated. He noted that the respondent felt aggrieved because he received no support from the appellant. Dr Chow said that the respondent referred to another incident that occurred after work involving a co-worker, however, the respondent and the co-worker had later resolved their differences.
Dr Chow took the following further history:
(a) after the above incidents, the respondent’s supervisor began to unfairly criticise him, harass him and wanted to terminate his employment;
(b) the supervisor made false allegations about him including misuse of a work vehicle and claiming work hours he did not perform;
(c) in March 2021, the respondent was accused of drinking beer in work hours, following which the respondent shouted at the supervisor;
(d) the respondent was required to attend a meeting in which the false allegations were discussed, and
(e) the respondent ceased work on 15 April 2021 and was subsequently given a letter requiring him to show cause as to why his employment should not be terminated.
Dr Chow noted that the respondent had no past history of psychological disturbance, had been seeking medical treatment since the previous year in respect of those work difficulties and was prescribed antidepressants and sleeping tablets. Dr Chow recorded the respondent’s complaints of fluctuating low mood and anxiety and poor motivation and appetite. Dr Chow diagnosed the respondent as suffering from an adjustment disorder and said he would require ongoing regular psychological and psychiatric treatment for the following twelve months, as well as medication for at least two years. He opined that the respondent had no capacity for employment.
Dr Chow was of the view that, on the assumption the respondent’s version of events was accepted, the respondent’s employment was a substantial contributing factor to his condition.
Dr Jeff Bertucen, consultant psychiatrist
Dr Jeff Bertucen was asked by the appellant to provide a medical opinion in respect of the respondent’s claim. He interviewed the respondent by way of video consultation on 6 July 2021 and produced a report dated 20 July 2021.[31] Dr Bertucen noted that the respondent felt incapable of returning to work because of symptoms of distress and anxiety as a consequence of bullying and “persecution” by his employer, and fear of being dismissed from his employment.
[31] Reply, pp 186–194.
Dr Bertucen took a history of the respondent having been chastised by management for being involved in an altercation with a colleague at a local club when he was “on call.” He noted that the respondent denied that he had been drinking alcohol when he was “on call” and said that, despite settling the issue with the co-worker, management threatened to terminate his employment but instead issued a final warning. Dr Bertucen further noted that the respondent reported having been stood down from January 2021 to March 2021 while the matter was being investigated. Dr Bertucen took the following further history:
(a) the respondent returned to work in March 2021 but was continually harassed and “picked on” by Mr Ranjit and other supervisors and was required to attend a number of meetings in relation to alleged time sheet discrepancies, which the respondent denied;
(b) the respondent believed he was being “singled out” and over scrutinised, and was criticised for using his private vehicle to do certain jobs when his children were unwell and unable to be left at home unsupervised;
(c) the respondent was unwell on 12 April 2021, and again on 13 April 2021, and went to work on 14 April 2021 in order to apologise for being away and to hand in a medical certificate;
(d) when he went to work on 14 April 2021, he noticed his time sheet for the previous week had not been submitted;
(e) Mr Masoudi told the respondent that he had forgotten about the time sheet;
(f) in the context of having previously been warned about his time sheets and threatened with dismissal, the respondent became upset, reminded Mr Masoudi about the time sheet issues and drove to Walgett to hand in the time sheet himself, and
(g) the respondent was directed to attend a meeting on 15 April 2021, which he did not attend and obtained a medical certificate from his general practitioner as he was anxious and fearful of being dismissed.
Dr Bertucen reported that the respondent denied having suffered any pre-existing psychiatric conditions prior to commencement of employment with the appellant. He said that the respondent indicated that his symptoms of anxiety and depression first arose in January 2021 when he was suspended on full pay, and he experienced sleep disturbance, ruminations about losing his job and worried about financial issues from being unable to work overtime.
Dr Bertucen noted that the respondent received treatment from his general practitioner, Dr White, and a psychologist through the employee assistance program. Dr Bertucen recorded that the respondent’s symptoms worsened when he experienced the incident with Mr Masoudi about the failure by Mr Masoudi to lodge his time sheet on 14 April 2021. Dr Bertucen reported that the respondent complained of having continuing psychological symptoms and was pessimistic about returning to work with the appellant or finding alternate employment, particularly within the small community.
Dr Bertucen considered that the respondent appeared moderately depressed and anxious but was a competent and precise historian. He noted that the respondent denied the existence of any non-work related factors contributing to his psychological condition. He said, however, that there was an inconsistency between the respondent’s allegations of unjustified persecution and the statement evidence provided by the appellant, which suggested that the respondent was guilty of poor work performance and misconduct.
Dr Bertucen diagnosed the respondent as suffering from an adjustment disorder “substantially caused by his perception that he is somehow targeted or persecuted in the workplace.”[32] He added that:
“Having reviewed [the respondent’s] statements as well as the statements of his supervisor, Raju Ranjit, I am persuaded that [the respondent’s] adjustment disorder has been ‘wholly or predominantly’ caused by actions taken or proposed to be taken by the [appellant] with regard to discipline and proposed dismissal. In my opinion, [the respondent] came to the view that he was likely to be dismissed at the meeting of 15 April 2021 and declined to attend for this reason.”[33]
[32] Reply, p 191.
[33] Reply, p 192.
Dr Bertucen was of the view that the respondent would benefit from five or six sessions with the employee assistance program psychologist, regular consultation with his general practitioner and antidepressant medication for a further four to six months. He concluded that the respondent was not incapacitated for work by his psychological condition but had made a conscious decision to refrain from returning to work for fear of further discipline or dismissal. He opined that the respondent was fit to return to work on full hours either with the appellant or in alternate employment.
Dr Bertucen commented on the appropriateness and fairness of the workplace discipline.
THE MEMBER’S REASONS
The Member provided a detailed summary of the evidence and the submissions of the parties. He identified the issues for determination. He turned to the question of whether the respondent suffered a disease injury within the meaning of s 4(b) of the 1987 Act and whether the respondent’s employment was the main contributing factor to the injury, as required by s 4(b) of the 1987 Act.
The Member considered that the oral evidence given by both the respondent and Mr Masoudi led him to believe that both witnesses were doing their best to recall the events in March 2021 and April 2021 and remarked that he would not make any adverse credit findings in respect of either of them. He said, however, that he considered that some of their evidence was unreliable. The Member noted that Mr Masoudi’s evidence was inconsistent with other evidence in that:
(a) he denied receiving a written performance management plan for the respondent, however, Mr Ricardi said that he emailed the plan to Mr Masoudi;
(b) his oral evidence was that he told Mr Ranjit that the respondent was “going off” about the time sheet when he reported the respondent’s behaviour on 14 April 2021, yet Mr Ranjit made no mention of it and the email sent by Mr Masoudi to Mr Ranjit did not mention the time sheet either, and
(c) his concession that the events occurred “some time ago” suggested that his recollection may not have been accurate.
In respect of the respondent’s evidence, the Member observed that:
(a) the respondent was clearly mistaken about the apprehended violence order being against him, rather than against the offender;
(b) the respondent’s description of his manner on 14 April 2021 as “just cranky” was likely to be an understatement, and
(c) the respondent’s assertion to Mr Ranjit that he walked to the oval toilets and cleaned them all within 30 minutes was somewhat implausible.
The Member considered that the respondent’s explanation that he drove his own vehicle because he had the care of his sick children was plausible in the context of the evidence that the respondent “took his family responsibilities seriously.”[34] The Member observed that, in any event, it did not appear from the appellant’s evidence about the time sheet discrepancies that the appellant came to a formal conclusion that the respondent’s explanation was untruthful.
[34] Barden v Walgett Shire Council [2022] NSWPIC 706 (reasons), [223].
The Member said that the correspondence in relation to the events occurring between 27 January 2021 and 18 March 2021 spoke for itself and the respondent’s evidence was not significantly different from the statements adduced in evidence by the appellant. He identified that there was, in his view, a real inconsistency in the evidence relating to events between 18 March 2021 and 14 April 2021. He reasoned that the respondent was anxious about his employment after 18 March 2021 and thus may have perceived the events that occurred differently to how others may have viewed them. He considered that, because of the disciplinary action that had already occurred, the respondent was careful to remember and record events that may have resulted in further disciplinary issues.
The Member concluded that Mr Masoudi did not inform Mr Ranjit that the reasons for the respondent’s behaviour on 14 April 2021 related to his time sheet. He reasoned that it would likely be the case that a manager’s email about an employee being disrespectful would have referred to the reasons for the disrespect. The Member further concluded that, despite Mr Masoudi being aware that the respondent left the meeting on 14 April 2021 in order to take his time sheet to Walgett, Mr Masoudi advised Mr Ranjit that the respondent simply walked away from the meeting without telling him where he was going. The Member determined that Mr Masoudi would have known that the respondent was required to lodge a signed time sheet and deliver it to Walgett, which would have been by Monday 12 April 2021. The Member referred to Mr Masoudi’s comment that the events were “some time ago”. He described Mr Masoudi’s attitude to the failure to lodge the time sheet as “relaxed”, which indicated that Mr Masoudi did not think that the failure was a significant issue when it was in fact clearly significant to the respondent.
The Member accepted that there were conversations between Mr Masoudi and the respondent on 18 March 2021, which were “real events” and that the respondent perceived that Mr Masoudi was being sarcastic and attempting to “wind him up” even though Mr Masoudi was likely not to have intended a sarcastic manner. The Member said that, in relation to the events occurring on 23 March 2021, he accepted that Mr Masoudi accused the respondent of shouting, and that Mr Masoudi was laughing with another worker, and that these were “real events.” The Member said that Mr Masoudi could not recall the interaction with the other worker, but confirmed that he did ask the respondent why he was shouting. The Member observed that it was clear that the respondent did not perceive that he had been shouting.
The Member referred to the incident involving a worker drinking beer and accepted that the respondent had honestly believed that Mr Masoudi had seen the worker drinking the beer and that Mr Masoudi asked the respondent who had drunk the beer. He noted Mr Masoudi’s evidence that he had not seen the worker drinking the beer. The Member observed that these were “real events.”
The Member also accepted that the respondent had placed his time sheet on Mr Masoudi’s desk in the preceding week and said that it was unexplained how the time sheet made its way to the desk in the crib room. The Member determined that Mr Masoudi was aware that the time sheet had not been submitted. He accepted that Mr Masoudi told the respondent that he had forgotten to submit it. The Member said that this event was “the catalyst for the [respondent’s] agitation.”[35] He considered that the fact that Mr Masoudi said that he had forgotten the time sheet was not necessarily a concession that the time sheet had been given to him the week before, a fact which Mr Masoudi consistently denied. The Member considered it likely that Mr Masoudi felt in part responsible for the time sheet not being lodged and that could be an explanation as to why he did not refer to the time sheet when he contacted Mr Ranjit and reported the respondent’s behaviour. The Member concluded that, in any event, the fact of the time sheet not being lodged and the confrontation between Mr Masoudi and the respondent, even if it was the respondent who had left the time sheet in the crib room, were real events that led to the respondent’s agitation. The Member observed that:
“The [respondent’s] perception as to the seriousness of those events may have surprised the more relaxed [Mr] Masoudi, but in the context of the [respondent’s] disciplinary history, I accept that his perception was reasonable.”[36]
[35] Reasons, [229].
[36] Reasons, [231].
The Member referred to the respondent being placed on a performance management plan which he said was not precisely explained in the evidence, and that the respondent was on that plan, because of alleged time sheet discrepancies and other matters, when the events occurred between 18 March 2021 and 14 April 2021. The Member noted that, prior to all of these events, the respondent was exposed to ongoing threats from a community member, Mr Murray, while the respondent was at work and the respondent felt dissatisfied with the appellant’s lack of support during that time. The Member referred to the corroborative evidence supporting the fact that the event occurred, what happened in the incident, the aggressive nature of Mr Murray and the respondent’s agitation immediately after the events. The Member further referred to the respondent’s evidence that the incidents continued to impact him. The Member observed, however, that “it was also clear from [the respondent’s] oral evidence that personal antagonisms within the Collarenebri community were also perpetuating the impact.”[37] The Member further observed that it did not appear that the respondent sought medical treatment in relation to the issues with Mr Murray and the first consultation with his treatment providers was on 28 January 2021, the day after the first disciplinary meeting.
[37] Reasons, [234].
The Member identified the events relied on by the respondent as causative of the injury. He quoted the definition of injury in s 4 of the 1987 Act and observed that the respondent needed to prove that those events were the main contributing factor to the disease injury. The Member cited relevant authorities of AV v AW[38] and Attorney General’s Department v K,[39] in which the applicable principles were discussed.
[38] [2020] NSWWCCPD 9 (AV).
[39] [2010] NSWWCCPD 76 (Attorney General’s Department v K).
The Member concluded that, applying those principles, the respondent’s perception of events occurring between 18 March 2021 and 14 April 20021 involving the respondent and Mr Masoudi affected the respondent’s psyche. The Member referred to the evidence of both Dr Bertucen and Dr Chow and considered that the histories of events recorded by both medical experts were not particularly accurate. He said that Dr Bertucen at least recorded the events that occurred on 14 April 2021, but also took the history that there was an altercation between the respondent and a co-worker at the local hotel, which led to the respondent being stood down between January 2021 and March 2021. The Member noted that the only witness evidence of that event was that of Mr Urquhart. He noted that Dr Bertucen also had a history of the respondent being harassed by Mr Ranjit about time sheet irregularities from March 2021.
The Member observed however that Dr Chow recorded the history of the community street fight, the harassment by one of the offenders that followed (Mr Murray), and the respondent’s complaint of lack of support in relation to the apprehended violence order, as well as:
(a) a disagreement with an unidentified co-worker;
(b) harassment, unfair criticism and false accusations by the respondent’s supervisor relating to time sheet irregularities and misuse of the work vehicle;
(c) an accusation that the respondent was drinking beer during work hours, and
(d) a meeting in which false allegations were discussed resulting in the respondent receiving a “show cause” letter.
The Member noted that Dr Chow did not include a history of the events on 14 April 2021. He added that Dr White’s evidence was somewhat vague, but the doctor attributed the psychological condition exclusively to the respondent being bullied at work by his supervisor and superiors.
The Member further noted the diagnoses provided by each of the doctors and that the condition resulted from events at work, albeit that they took different histories. He referred to Dr Bertucen’s opinion that the respondent’s adjustment disorder substantially resulted from the respondent’s perception of being targeted or persecuted in the workplace and Dr Chow’s opinion that the respondent’s experiences at work were a substantial contributing factor to the adjustment disorder.
The Member concluded that, although it would have been preferrable that the medical evidence was more detailed and accurate, taking into account all of the evidence from the three doctors, he was satisfied that employment events were the main contributing factor to the adjustment disorder. The Member referred to AV, and said that after weighing all the causative factors, he could not identify any convincing evidence of non-work related factors. He reasoned that Dr Chow did not refer to any non-work factors, Dr White attributed the injury exclusively to work, and Dr Bertucen recorded that the respondent told him that there were no extraneous factors such as family issues.
The Member noted the appellant’s submissions that there were non-work factors including family issues and personal issues within the community that were causative of the respondent’s condition. The Member considered that those submissions were “largely speculative”[40] and not supported by the medical evidence. The Member added that the respondent was not cross-examined about family issues, but the respondent did concede that he had issues with Mr Murray and his family. The Member said that the extent of the issues was not apparent, the issues were not mentioned in the general practitioner’s notes or anywhere else in the medical evidence. The Member said that he accepted that there was a significant event involving Mr Murray on 20 July 2017 when the respondent was at work, and the evidence from Ms McKeown lent support to the respondent’s concerns about the matter. The Member added that the appellant’s submission that the respondent had a “pre-existing oppositional disposition”[41] was not supported by any medical or other evidence.
[40] Reasons, [249].
[41] Reasons, [251].
The Member turned to the question of whether the appellant had established that the respondent’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the appellant in respect of discipline, termination, or the provision of employment benefits. He reproduced s 11A of the 1987 Act and noted that the appellant bore the onus of establishing the defence under s 11A, citing authority for that proposition. The Member referred to the Court of Appeal authority of Manly Pacific International Hotel Pty Limited v Doyle,[42] and Fitzgerald JA’s observation that the court is required to decide firstly whether the whole or predominant cause of the injury was the appellant’s actions described in s 11A and if so, whether those actions were reasonable. The Member said that the appellant’s main defence in this matter was that its actions relating to the investigation into the respondent’s time sheet discrepancies were the whole or predominant cause of the injury and that its actions were in respect of discipline or termination and were reasonable.
[42] [1999] NSWCA 465.
The appellant submits that, nonetheless, it was Mr Ranjit who was driving the performance management plan and who wrote the letters arranging for a meeting to discuss the respondent’s behaviour, which was of concern for the respondent.
The appellant asserts that, as the Member avoided deciding factual matters based upon his own observations and credit assessment of the witnesses, he therefore avoided making a determination and instead relied upon inadequate reasons to resolve the issues between the parties. The appellant says that bald findings about the credit of a witness where there are substantial factual matters to consider may not be sufficient to satisfy compliance with the obligation to give adequate reasons. The appellant submits that it is necessary for the Member to deal with the factual and legal considerations, however, he instead limited his view of the evidence and failed to give proper consideration to alternate conclusions. The appellant refers to the submission made by it that the respondent deliberately avoided the disciplinary meeting in order to avoid dismissal. The appellant says that the Member did not deal with that submission, which was consistent with the evidence of Dr Bertucen.
The appellant submits that, having dismissed the opinion of Dr Bertucen, the Member proceeded to consider the issue pursuant to s 11A of the 1987 Act, in which he:
(a) accepted the respondent’s perception of events occurring between 18 March 2021 and 14 April 2021;
(b) further accepted that there was interpersonal conflict between Mr Masoudi and the respondent, which caused the respondent distress;
(c) accepted that the respondent was happy to be back at work after 17 March 2021 after the performance management plan was implemented;
(d) noted the lack of reliable medical evidence about the predominant cause of the injury, and
(e) further noted that the respondent did not seek medical treatment after 28 January 2021 but before 14 April 2021.
The appellant submits that it was ultimately the lack of reliable medical evidence that was determinative when Hamad requires that there needs to be positive medical evidence on causation where there are numerous potential causative elements.
The respondent’s submissions
The respondent submits that the Member’s determination did not rest upon why the time sheet was in the crib room. The respondent says that the Member did however rely upon the respondent’s perception of the event, and, on any view of the evidence, the respondent was extremely distressed about what had occurred and blamed his supervisor. The respondent says that there is no suggestion that the event of the time sheet being on the desk did not occur.
THE RELIEF SOUGHT
The appellant submits that there should be an award in its favour in respect of all issues in dispute.
The respondent submits that the appellant has failed to disclose error on the part of the Member and the appeal should be dismissed.
CONSIDERATION
Ground One: The Member erred in fact and at law by misdirecting himself and finding that the predominant cause of the respondent’s condition was limited to “the events that occurred between 18 March 2021 and 14 April 2021” and in so doing, failed to provide adequate reasons
The Member did not find that the events that occurred between 18 March 2021 and 14 April 2021 were the predominant cause of the injury. The Member:
(a) noted that the respondent relied on those incidents as being causative of his injury and reviewed those events;[63]
(b) referred to the principles set out by Roche DP in Attorney General’s Department v K in relation to whether the perception of events involved “real” events,[64] and
(c) applying those principles, made a finding that the respondent’s “perception of the events which occurred between himself and [Mr] Masoudi in the period from 18 March 2021 to 14 April 2021 affected his psyche.”[65]
[63] Reasons, [225]–[233].
[64] Reasons, [240].
[65] Reasons, [241].
The Member noted Dr Bertucen’s opinion that the respondent’s adjustment disorder was substantially caused by his perception that he was being targeted or persecuted in the workplace. He further noted that the appellant’s main defence pursuant to s 11A was reliant upon the investigation into the discrepancies in the respondent’s time sheets, the assertion that those events were the whole or predominant cause of the injury, its actions were in respect of discipline or termination of employment and those actions were reasonable.[66]
[66] Reasons, [255].
The Member concluded that:
“In relation to whether the whole cause of the [respondent’s] psychological injury was the [appellant’s] actions regarding its timesheet discrepancies investigation, I am satisfied that there were a number of other causes or events involved, as discussed above at paragraph 233. There were events that occurred before the investigation, as well as events which occurred between 18 March 2021 and 14 April 2021.”[67]
[67] Reasons, [257].
The Member’s conclusion was clearly open to him on the available evidence.
The Member proceeded to review relevant Presidential authorities in respect of the phrase “predominantly caused”, and, applying those authorities, correctly observed that a comparison between the psychological effect of the time sheet discrepancies and the other work related events found to have occurred was required. The Member referred to the investigations into the time sheet discrepancies as “distressing” for the respondent, noting the evidence of Mr Ricardi, Mr Urquhart and Mr Ranjit, and noting that the respondent attended his general practitioner on 28 January 2021. The Member also noted, however, that Mr Ricardi and Mr Ranjit said that the respondent looked happy at the meeting on 17 March 2021 when he learnt that he was able to return to work the next day and, other than the consultation with Dr White on 28 January 2021, the respondent did not attend for treatment in relation to difficulties with his superiors until 14 April 2021. The Member added that the respondent did not appear concerned about the letter requesting the respondent to attend a meeting on 15 April 2021 or the implementation of the performance management plan, other than the fact that Mr Masoudi was administering the plan. The Member said that the respondent had experienced interpersonal conflict with Mr Masoudi since he became the respondent’s supervisor on 18 March 2021. The Member gave examples of the events involving Mr Masoudi that caused distress to the respondent.
The Member considered that the “main causative factor” for the respondent leaving work on 14 April 2021 was the events that occurred on that day. The Membered correctly concluded that none of the events occurring between 18 March 2021 and 14 April 2021 could be considered actions with respect to discipline, termination, or the provision of employment benefits.
The Member turned to the medical evidence. He noted that neither Dr Chow nor Dr White lent assistance to a determination of the predominant cause of the injury. He discussed the opinion of Dr Bertucen and provided reasons as to why he did not afford significant weight to Dr Bertucen’s opinion. Those reasons are summarised by me at [141] above. The Member referred again to the established facts, together with the “lack of reliable medical evidence concerning whether that investigation was the predominant cause of the [respondent’s] injury” and concluded that the appellant had “failed to discharge its onus of proof regarding its defence to the [respondent’s] claim pursuant to s 11A of the 1987 Act.” He further concluded that the investigation of the time sheet discrepancies was not the main, principal or predominant cause of the injury.[68]
[68] Reasons, [277].
The appellant’s allegation that the Member erred by “misdirecting himself and finding that the predominant cause of the [respondent’s] condition was limited to ‘the events that occurred between 18 March 2021 and 14 April 2021’ and in so doing, failed to provide adequate reasons” is not made out. The Member did not make such a finding and provided more than adequate reasoning for the conclusion that the appellant, who bore the onus of proving that the appellant’s actions with respect to discipline and/or termination of employment were the predominant cause of the injury, had not made out its case. This ground of appeal fails.
Ground Two (a): The Member erred by failing to adequately consider or provide reasons responding to the appellant’s submission that the respondent’s expert medical evidence was based on assumptions that did not provide a fair climate to enable any weight to be given to their opinions, concerning whether the respondent’s condition was “predominantly caused” by reasonable action taken or proposed to be taken by the appellant with respect to discipline and proposed dismissal
The appellant’s submissions made in respect of this ground of appeal do not assist in relation to an assessment of whether the Member erred in the manner alleged. As the respondent submits, the submissions are more pertinent to a complaint that the Member erred by failing to accept the opinion of Dr Bertucen, which is a complaint more relevant to Grounds Two (c) and Two (d) of this appeal.
The summary of the Member’s reasons above and the consideration of Ground One of the appeal clearly identify the Member’s analysis of the medical evidence and his path of reasoning in respect of that evidence. The Member did not fail to consider the question of whether the respondent’s medical evidence provided a fair climate upon which to base his findings. In fact, the Member expressly noted that neither Dr Chow nor Dr White offered a view as to whether the respondent’s injury was predominantly caused by reasonable actions on the part of the appellant with respect to discipline or termination of employment. The Member then turned to the evidence of Dr Bertucen. He did not accept that the respondent’s medical experts’ opinions were provided in a “fair climate” and the Member’s ultimate conclusion was not based upon the evidence of those experts. It follows that this ground of appeal is not made out and fails.
Ground Two (b): The Member erred by failing to adequately consider or provide reasons responding to the submission that the respondent’s condition could have been regarded as “predominantly caused” by reasonable action or proposed action on behalf of the appellant, broadly with respect to inter alia the provision of employment benefits
Ground Two (b) of the appeal asserts that the Member erred by failing to adequately consider and provide reasons in respect of its submissions that the respondent’s psychological injury was predominantly caused by reasonable action taken in relation to the provision of employment benefits. The appellant submits that the refusal to consider the submission amounts to an error of law.
The appellant asserts that there are many cases where the circumstances could be seen as the provision of employment benefits.
The Member dealt with the appellant’s submission as follows (citation omitted):
“Finally, I will address the [appellant’s] submission … that whatever actions [Mr] Masoudi took or failed to take in relation to the [respondent’s] timesheet on 14 April 2021 were reasonable actions with respect to the provision of employment benefits to workers.
The [appellant] has provided no explanation as to how the submission of a timesheet could be considered to be an employment benefit, and I reject its submission.
In ACR v Grace Worldwide Pty Limited, Wood DP (in determining that the provision to an employee of JobKeeper payments constituted the provision of an employment benefit) stated (at [276]):
‘It is common knowledge that the JobKeeper scheme was implemented by the Australian Government to help support businesses and keep workers in employment during the COVID-19 crisis. That is, it was a benefit provided to employers which was passed on to their employees and was intrinsically linked to ensuring that the workers remained in employment. The benefit was not payable outside of an employment relationship and was not reward for work done.’
The submissions of the timesheet was an administrative action required by the [appellant], so that it could accurately pay the [respondent’s] wage. It was of no other benefit to the [respondent]. It was not intrinsically linked to the [respondent] remaining in employment, and to the extent that it benefited the [the respondent], it related to rewarding him for work done. That is, it related to the [appellant’s] contractual obligation to pay the [respondent] wages, rather than any other non-wage benefit.”[69]
[69] Reasons, [278]–[281].
It cannot be said that the Member failed to consider or provide reasons in respect of the appellant’s submission. In the context of the appellant having not made any submissions to the Member in support of its assertion, the Member’s consideration and reasons for his conclusion are adequate. None of the decisions cited by the appellant assist the appellant in respect of whether the submission of a time sheet constitutes an employment benefit.
No error in the Member’s conclusion is identified and the ground of appeal fails.
Ground Two (c) and Two (d): The Member erred by failing to adequately consider or provide reasons responding to:
(c) the opinion of Dr Bertucen, that the respondent’s condition “caused by his perception that he is somehow being targeted or persecuted,” was predominantly caused by the appellant’s reasonable action or proposed action with respect to discipline and proposed dismissal, and
(d) evidence supporting the conclusion that the respondent “came to the view that he was likely to be dismissed at the meeting of 15 April 2021”
The appellant does not differentiate between the submissions in respect of their relevance to either of the grounds of error raised. It is therefore convenient to deal with these grounds together.
The appellant refers to the Member’s observation that the main causative factor for leaving work on 14 April 2021 was the events that occurred on that day. The appellant asserts that the observation was inconsistent with the Member’s subsequent observation that the respondent was happy to be back at work on 18 March 2021 but then became distressed after interpersonal conflict with Mr Masoudi, culminating in the respondent ceasing work on 14 April 2021. The inconsistency is not readily apparent and both observations were available on the evidence.
The appellant says that the only compelling conclusion is that all of the events were steps in the broader process of investigating the time sheet discrepancies. That submission cannot be accepted. As the Member correctly identified, the events involving interpersonal conflict between the respondent and Mr Masoudi did not involve actions taken by the appellant in respect of discipline or termination of employment. The respondent may well have been concerned that his employment was in jeopardy because of the events occurring around him, but that concern does not change the characteristics of the interpersonal difficulties with Mr Masoudi, which were not disciplinary actions.
The Member did not accept Dr Bertucen’s view that the respondent’s injury was wholly or predominantly caused by the appellant’s actions with regard to discipline and proposed dismissal. He provided reasons for doing so, namely that Dr Bertucen’s opinion was absent consideration of Mr Masoudi’s evidence and was based on an incorrect history that Mr Ranjit was continuing to harass the respondent about the time sheet discrepancies after the respondent returned to work in March 2021, which was obviously incorrect.
The appellant submits that it was likely that the respondent was motivated to avoid the meeting on 15 April 2021 because he believed he was to be dismissed at the meeting. The appellant says that this was evidence that supported Dr Bertucen’s conclusion that the respondent feared dismissal from employment and the Member did not engage with that proposition. If the appellant is asserting that the respondent was somehow feigning a disability, then that assertion is not made out in the evidence. The respondent consulted with Dr White on 14 April 2021, complaining of work related stressors and symptoms of a psychological condition. The respondent had been told that if he was unable to attend the meeting on 15 April 2021, he was to advise the appellant. The suggestion that the respondent was “engineering” an avoidance of the meeting is not based on any satisfactory evidence and is mere speculation. Any observation made by Dr Bertucen to that effect, as the respondent submits, is not an expression of an expert opinion, was not based on any evidence and was of no weight. Further, the proposition was not put to the respondent in cross-examination and the Member was not required to consider that submission or give reasons for rejecting it.
It follows that Grounds Two (c) and Two (d) do not disclose error on the part of the Member and the grounds of appeal fail.
Ground Three (a): The Member erred by failing to provide adequate reasons when dealing with (or failing to deal with) specific factual issues, raised between the parties to the dispute, including whether there was evidence that the respondent displayed an oppositional disposition
Ground Three (a) of the appeal complains that the Member erred by failing to give adequate reasons when determining whether the respondent displayed an “oppositional disposition.” The Member dealt with the submission as follows:
“In its further submissions, the [appellant] also submits that the [respondent’s] ‘psychological disturbances include a pre-existing oppositional disposition’ and that the [respondent] has been adversarial from the commencement of his dispute with the [appellant].”[70]
And:
“Similarly, the [appellant’s] submission … above that the [respondent] had a pre-existing oppositional disposition is not supported by medical or other evidence.”[71]
[70] Reasons, [219].
[71] Reasons, [251].
The Member’s observation that the notion was not supported by any medical evidence was sufficient to dispel the submission. Whether the respondent did or did not have such a disposition is not a determination open to a decision-maker without some relevant expert evidence. Further, the relevance of any adversarial attitude was not explained by the appellant in terms of the impact of such an attitude on matters to be determined by the Member in relation to the application of s 4 and of s 11A of the 1987 Act. The ground of appeal fails.
Ground Three (b): The Member erred by failing to provide adequate reasons when dealing with (or failing to deal with) specific factual issues, raised between the parties to the dispute, including whether there existed a formal performance management plan other than the final warning letter of 17 March 2021, dealing with the respondent’s management thereafter
Ground Three (b) of the appeal asserts that the Member failed to give adequate reasons when determining whether a formal performance management plan existed. The appellant submits that the Member did not resolve the issue of whether a formal performance management plan existed, that it was clear that it was based upon the formal warning letter and the plan was carried out in a reasonable manner.
The assertion that the Member did not resolve the issue of whether the performance plan was put in place is incorrect. The Member referred to the evidence of various witnesses that a performance management plan was issued and observed that the final formal warning letter issued confirmed the terms of that plan.[72] The Member noted that the plan could not be located and was not in evidence[73] and that Mr Masoudi’s evidence was that he had not been provided with the plan.[74] The Member observed that:
“The events which occurred between 18 March 2021 and 14 April 2021 occurred while the [respondent] was subject to a performance management plan, which has not been explained with any precision at all in the evidence.”[75]
[72] Reasons, [131].
[73] Reasons, [135].
[74] Reasons, [152], [156].
[75] Reasons, [233].
The Member clearly proceeded on the basis that a performance management plan had been put in place, which accorded with the conditions imposed by the final formal warning letter. The Member concluded that the implementation of the plan was not reasonable because Mr Masoudi, the respondent’s supervisor, had not been provided a copy of the plan and was not aware of the background to it. The Member’s ultimate determination was, however, that while the absence of the plan weighed against the appellant’s case, the implementation of the plan did not appear to have caused the respondent any significant distress, other than that he had to deal with Mr Masoudi, with whom he had difficulties in any event.[76] Thus, the error asserted by the appellant has no foundation and this ground of appeal fails.
Ground Three (c): The Member erred by failing to provide adequate reasons when dealing with (or failing to deal with) specific factual issues, raised between the parties to the dispute, including how the time sheet for the working week ending Sunday 11 April 2021 came to be located under papers on the table in front of the place where the respondent usually sat, in the crib room during the toolbox meeting held on 14 April 2021
[76] Reasons, [265].
Ground Three (c) of the appeal complains that the Member erred by failing to provide adequate reasons when dealing with the issue of how the time sheet came to be located under paperwork on the table in the crib room. As the respondent submits, the Member’s determination did not rest upon how the time sheet came to be in the crib room but involved the respondent’s perception of the event and there is no suggestion that the incident of the time sheet being on the crib room table did not occur. The appellant makes no submissions relevant to this ground of appeal and in those circumstances, it is impossible to point to any error on the part of the Member. This ground of appeal must fail.
Ground Three (d): The Member erred by failing to provide adequate reasons when dealing with (or failing to deal with) specific factual issues, raised between the parties to the dispute, including the relative reliability of the evidence given by the respondent and by Mr Masoudi
This ground of appeal asserts error on the part of the Member by failing to give adequate reasons when weighing the reliability of the evidence of the respondent against that of Mr Masoudi. The appellant refers to the Member having accepted that Mr Masoudi had said that he had forgotten to lodge the respondent’s time sheet and that Mr Masoudi felt some degree of responsibility for not submitting the time sheet. The Member’s observations were as follows:
“In relation to the events on 14 April 2021, I accept that the [respondent] had placed his timesheet on [Mr] Masoudi’s desk the week before. How the timesheet then found its way onto the smoko room desk on 14 April 2021 is simply unknown. I certainly do not accept that [Mr] Masoudi intentionally placed it there. However, I do accept that [Mr] Masoudi was aware prior to 14 April 2021 that the [respondent’s] timesheet for the week prior had not been submitted, and in those circumstances, I accept that he told the [respondent] … that he had forgotten to submit it. This comment was the catalyst for the [respondent’s] agitation.
It is not necessarily the case that in saying that he had forgotten to submit the timesheet, [Mr] Masoudi is conceding that the timesheet was given to him the week before (which he has consistently denied). It may be that the submission of the timesheet was not sufficiently brought to his attention by the [respondent]. It is likely however that he felt some degree of responsibility for the timesheet not being submitted. This is consistent with his failure to advise [Mr] Ranjit that the reason for the [respondent’s] behaviour on 14 April 2021 was that his timesheet had not been submitted, in circumstances where he was the [respondent’s] manager and knew prior to that date that the timesheet had not been submitted.
In any case, the fact that the [respondent’s] timesheet had not been submitted and the confrontation between the [respondent] and [Mr] Masoudi on 14 April 2021 were also ‘real’ events. The [respondent’s] perception as to the seriousness of those events may have surprised the more relaxed [Mr] Masoudi, but in the context of the [respondent’s] disciplinary history, I accept that his perception was reasonable.”[77]
[77] Reasons, [229]–[231].
Those reasons provided by the Member in relation to the time sheet not being submitted are more than adequate. The evidence stablished that the time sheet had not been submitted and it was Mr Masoudi’s responsibility to attend to that task. The Member’s conclusions are matters of common sense. The Member observed that it was a fact that the time sheet had not been submitted and it was a fact that there was a confrontation between the respondent and Mr Masoudi, which distressed the respondent. Thus, the Member concluded they were “real events” and, in the circumstances where there had been prior issues in relation to time sheets, the respondent’s perception was reasonable.
The relevance of the appellant’s submission that it was Mr Ranjit who was dealing with the implementation of the performance management plan is not explained and does not appear to relate to this ground of appeal. Nor does the submission that ultimately, it was the lack of medical evidence that was determinative in this case.
The appellant has not established error on the part of the Member and this appeal ground fails.
CONCLUSION
The appellant has failed to establish error on the part of the Member. The Member’s Certificate of Determination, as amended by me in Barden v Walgett Shire Council is confirmed.
DECISION
The Member’s Certificate of Determination dated 8 December 2022, as amended by Barden v Walgett Shire Council [2023] NSWPICPD 80, is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
14 December 2023
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