Ware v Bayside Council

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ware v Bayside Council [2021] NSWPIC 407
APPLICANT:	Phillip Craig Ware
RESPONDENT:	Bayside Council
MEMBER:	Paul Sweeney
DATE OF DECISION:	12 October 2021
CATCHWORDS:	WORKERS COMPENSATION - Claim for weekly benefits and permanent impairment compensation by worker with accepted psychological injury; respondent denies liability on the basis of “discipline” and “dismissal” in section 11A(1) of the Workers Compensation Act 1987 and disputes that worker is incapacitated by reason of the injury; at the arbitration hearing respondent criticises the reliability of the worker’s written and oral evidence; Held - although aspects of the worker’s evidence was unacceptable the respondent had not established that its actions with respect to discipline etc were reasonable; Northern NSW Local Health Network v Heggie considered; disciplinary process characterised by lack of procedural fairness; allegations of fraud not proven to the standard required by Briginshaw v Briginshaw; award for closed period of weekly compensation; permanent impairment claim referred to Medical Assessor for determination.
DETERMINATIONS MADE:	1. Award for the applicant for weekly compensation as follows: (a) $1,119.24 from 19 March 2020 to 7 May 2020; (b) $596.20 from 7 May 2022 18 June 2020 pursuant to section 36, and (c) $406.84 from 19 June 202 to 31 December 2020. 2. Liberty to the parties to apply in respect of the calculations and entitlement periods above. 3. Credit to the respondent for payments made but only in respect of the week during which those payments were made. 4. Remit the matter to the President for referral to a Medical Assessor to certify the degree, if any, of whole person impairment as result of psychological injury which is deemed to have occurred on 19 March 2020 as a result of the applicant’s employment before that date. 5. Medical Assessor to have access to the documents enumerated in paragraph 14 below and to the documents attached to the respondent’s Application to Admit Late Documents dated 16 September 2021.

STATEMENT OF REASONS

BACKGROUND

Phillip Craig Ware (the applicant) commenced employment with the Bayside Council (the respondent) as a trades assistant (operations technician) on 29 July 2019.
By letter dated 26 February 2020, received by the applicant on 28 February 2020, he was required to attend a meeting to investigate his conduct in the workplace. The letter specifically identified his conduct on 20 February 2020. It stated:
“On Thursday 20 February 2020 you are alleged to have behaved antagonistically toward a colleague by raising voice in an aggressive manner and throwing papers”.
The letter, which was signed by Bryce Spelta, the respondent’s Manager City Works, stated that the meeting formed part of an investigation to determine if there had been a breach of the respondent’s policies, procedures, or code of conduct.
Having attended this meeting, the applicant received a further letter signed by Mr Spelta on 16 March 2020. It required him to attend a meeting on Wednesday 18 March 2020 at the respondent’s Botany depot. The purpose of the meeting was to discuss the findings of a recent investigation into the applicant’s conduct as an employee of the respondent.
On the same date, he received further correspondence from the respondent which stated that he had:
“Deliberately and repeatedly acted dishonestly by stating false information, that you intended to fraudulently obtain payment by completing a falsified timesheet entry, and that you acted in an intimidating and harassing manner towards a colleague.”
The applicant was advised that he was suspended on full pay pending his response to the allegations.
By a further letter of 24 March 2020, the respondent extended the time for the applicant to show cause as to why his employment should not be terminated to close of business on 2 April 2020.
On 15 April 2020, the applicant received a termination of employment letter.
On 19 March 2020, the applicant saw his general practitioner, Dr Abdul Rahman, who certified him unfit for work from 19 March to 2 April 2020 due to depression and anxiety. Then, on 30 March 2020, at a further consultation, Dr Rahman issued a SIRA Certificate of Capacity certifying the applicant unfit to work from 30 March 2020.
The applicant has not returned to employment since the termination of his position with the respondent council. It is common ground that he suffers from a psychological injury arising out of and in the course of his employment.
The respondent disputes that it is liable to pay compensation as the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken by it with respect to discipline, performance appraisal and/or dismissal. In the alternative, it asserted that the applicant was not incapacitated for work by reason of his psychological injury.

PROCEDURE BEFORE THE COMMISSION

When the matter came on for conciliation and arbitration on 13 July 2021, Mr Hanrahan of counsel appeared for the applicant and Mr Baran, of counsel, appeared for the respondent. The conciliation and arbitration was heard audio visually. I was informed by counsel that the parties were unable to agree on the threshold issue of whether the respondent was liable to pay compensation. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to consider settlement during and before the conciliation but were unable to formulate a mutually satisfactory resolution of the dispute.
At a telephone conference in the matter, I was informed by the respective solicitors that an application would be made to cross-examine the applicant, Mr Pickens, and a number of the respondent’s witnesses at the hearing. That application having been foreshadowed and not opposed, I granted leave to both parties to adduce oral evidence. In my opinion it was in the interests of justice to grant the applications to adduce oral evidence in this case given the diametrically opposed written evidence in respect of several issues.
Although the matter had been listed for a full day, the cross-examination of witnesses occupied virtually the entirety of the time that had been allocated to the arbitration hearing. Accordingly, at the conclusion of the oral evidence I made orders that the parties lodge written submissions. These submissions have now been received.

EVIDENCE

The documents before the Commission are as follows:
(a)    the Application to Resolve a Dispute and the documents attached;
(b)     the Reply and the documents attached;
(c)    Applications to Admit Late Documents and dated 11 May 2021 and 6 July 2021 (x 2), and
(d)    the surveillance DVD lodged with the Commission on 6 July 2021.
There was no objection to any of the material referred to above at the arbitration hearing. I note that the respondent lodged a further Application to Admit Late Documents on 16 September 2021. These documents included a supplementary report of Dr Martin dated 1 August 2021, a letter from Unified Health Group dated 14 January 2021, and an undated report of Dr Rahman, the applicant’s treating general practitioner.
In accordance with my direction of 14 May 2021, these documents are not admissible in the arbitral dispute before the Commission. Accordingly, I have not read them. If the applicant is successful on the liability issue, they will be included in the documents referred to the Medical Assessor.
While the applicant alleges that he was “subtly” bullied by his supervisor throughout the entirety of his employment, the circumstances which led to the institution of disciplinary action by the respondent all occurred in the second half of February 2020.They are set out in the termination letter of 15 April 2020 as follows:
“•      You were not ready to commence duties on time on the morning of 18^th February 2020 and were untruthful about the cause of the delay.
•       You left work on the afternoon of Tuesday 25^th February and Wednesday 26^thFebruary without notifying nor obtaining the approval of your supervisor and subsequently completed fraudulent timesheet entries to indicate you had completed a full day’s work.
•       You fraudulently received payment for time that you have falsified on your timesheet.
•       You were not ready to commence duties on time on the morning of 25^th February 2020 and were repeatedly untruthful about the reason why this occurred.
•       You attempted to persuade potential witnesses in this investigation not to provide a statement.”

Evidence in respect of the issues leading to termination

Rather than attempt to summarise the entirety of the evidence, which includes multiple statements from the applicant, and from some of the respondent’s witnesses, it is convenient to consider the conflicting evidence in respect of the first four of these allegations. What follows is not intended as a comprehensive survey of the evidence of the witnesses. Rather, I set out some salient points so the parties can understand the way in which the Commission has resolved the dispute.
When dealing with the applicant’s evidence, I generally relate the account given in his second statement as the applicant says his initial statement, taken by an insurance assessor, does not accurately represent his evidence.

Lateness on 18 February 2020

Shortly before this incident, the applicant’s car had irreparably broken down and he had sought “grant leave” for three days to arrange for the purchase of a new vehicle. However, after the first day of that leave, he was recalled to duty by Mr Le Bechennec, his direct supervisor as the respondent was “short-staffed” at a time when the Bayside Council area had experienced heavy rain and flooding.
To facilitate the applicant getting to and from work, Mr Le Bechennec arranged for a fellow employee, Nurul Amin, to pick him up from home in a council vehicle. On 13 and 14 February 2020, Mr Amin picked up the applicant between 6.45 and 6.50 am and dropped him off at home at the end of the working day. The applicant did not work on 17 February 2020.
The applicant’s account of the events of the morning of 18 February 2020, as recorded in his second statement of 14 April 2021, is as follows:
“I was in my front yard on Tuesday, 18 February 2020 from 6.45am waiting to be picked up for work. Nurul was running late. I kept checking the time on my telephone. I recall that I was “getting the shits” because I don’t like being late for work. I recall seeing my neighbour, Chris out the front of his place. Chris lives at 52 Margate Street, Ramsgate. Chris was out the front of his place from 6.45am.
I recall that Nurul to my place at about 7.15am. By this stage, I went back inside the house because I got sick of waiting out the front. I saw the work ute arriving. I looked out the front window and I saw Nurul was driving. I also saw that Ram was in the front passenger seat. I rushed out the house as soon as I saw them. I had already packed my esky and I had been ready to go since 6.45am.”
The applicant then relates a conversation with Nurul and Ram during which they told him they were late because of “heavy traffic” to which the applicant said that he replied: “bullshit! I know you went to get coffee.” He recounted that he was suspicious because neither had a coffee cup, which “made me suspect that they had already had their coffee as per usual routine.”
The applicant recounts that when the vehicle arrived at the work site at Queen Victoria Street, Eric Le Bechennec was present. He recounts that Nurul told Eric that they were late because of “heavy traffic”. At the end of that job the applicant says that he had a further conversation with Ram Kumar whereby the latter admitted that Nurul Amin had driven to a coffee shop on the way to collect the applicant for work. Mr Kumar allegedly said:
“Yeh, we did go but I didn’t get out.”
The evidence of Ram Kumar as recorded in his supplementary statement dated 10 June 2021 is that he does not recall telling the applicant that he and Nurul went to get coffee prior to picking him up on the morning of 18 February 2020. Further, he states:
“I don’t recall Phil saying anything about us going to get coffee.”
Mr Kumar also states:
“Regarding paragraph 71, when we got to that job site late that morning on Tuesday 18 February 2020 I recall that Eric was there and after we arrived Eric called Nurul over to speak to him, but I did not hear their conversation. I was quite new at the time and I had not been working for Bayside Council very long.
From memory I think Nurul later said to me that Eric had asked why we were late and had had told Eric the reason we were late was because we had to wait for Phil to come out from his home and get into the car when we went to pick him up, which was true and why we were late that morning.
Regarding paragraph 71 I do not have any memory of Nurul telling Eric that the reason we were late was because of heavy traffic. I do not believe that Nurul said that to Eric.”
Addressing the applicant’s evidence that he told him that he and Nurul had gone to the coffee shop prior to picking him up on the morning of the 18^th, Mr Kumar says:
“Regarding the above it is not true that I said to Phil that we did go to the coffee shop. I did not say “yeh, we did go but I didn’t get out”, this is not true.
I do recall that morning that Eric did tell us to go straight to Phil’s house to pick him up, which is what we did and we definitely did not go to any coffee shop to get a coffee on the way to Phil’s house that morning.
I recall the next day on Wednesday 19 February 2020 Eric asked me why we were late the previous morning and I told him we were late because we were waiting for Phil to come out from his home to get in the car.”
Nurul Amin’s statement dated 15 June 2021, includes the following:
“Regarding paragraph 66 of Phil’s statement dated 14 April 2021 it is not correct that myself and Ram Kumar arrived at Phil’s home at 7.15am on the morning of Tuesday 18 February 2020 and that Phil came straight out and got into the work ute and we left, this is not true.
As I said in my previous statement myself and Ram Kumar arrived at Phil’s home that morning at about 7am and after a couple of minutes Phil came out and said that he will be back in 5 minutes and then he went back inside his home. Then after we waited for 20 minutes or so Phil to come back out to the ute when we left to drive to the workplace.”
Mr Amin says he has no recollection of saying that they were late because of heavy traffic or that the applicant said anything about them getting coffee. He continues:
“I do not believe this conversation is correct, we were not late, it was Phil who was late while we waited for him to come out from his home.”
Mr Amin also says that the applicant’s account of his conversation with Eric Le Bechennec, by which he stated that it was because of heavy traffic, is untrue.

The allegation that the applicant left work early without notice on Tuesday 25 and Wednesday 26 February 2020

The applicant says that he slept in on 25 February 2021 as “the alarm on my iPhone did not go off”. He says that he was woken by the roadway sweeper, which was driven by another council employee, John Peacock, at about 7.15 am. He continues:
“As my phone had died because of zero battery, I went out the front and I asked John Peacock for Eric’s phone number as I did not know Eric’s phone number “off the top of my head”. I told John Peacock that I had to get on to Eric. I recalled saying to John Peacock, “I am going down the road to ring Eric.”
He says that he did not feel comfortable borrowing John Peacock’s phone as he did not know him well, although John Peacock was able to give him Mr Le Bechennec’s phone number. He then drove to Ramsgate Plaza, and obtained the use of a phone charger from a waitress at Café 1919. While his phone was recharging, he walked to the public phone located outside the IGA supermarket. He recounts that he telephoned Eric Le Bechennec at approximately 8.16 am and left a voicemail message.
The applicant attaches a confirmation from Telstra that a call was made on this phone to Mr Le Bechennec’s telephone on 25 February 2020 at this time. Shortly after this call, the applicant was contacted and picked up by Ian Cimera, a fellow employee, who drove him to his job at Botany. He says that he commenced his work at approximately 8.40 am to 8.45 am. In respect of finishing work, the applicant says this:
“At the end of the work day on Tuesday, 25 February 2020, Ian Cimera dropped me off at home at about 2.30pm to 2.45pm.”
The applicant says that on 26 February 2020, he drove to work and returned home at 3.50p m or 3.55 pm. Mr Le Bechennec states, however, that on 26 February 2020 he saw an employee of the respondent, Frank Dion, driving a ute along Hale Street toward Botany by himself. In response to a question as to why he was by himself on 26 February at 2 pm, Mr Dion allegedly responded that he had gone to drop the applicant at his place at 2 pm.
Mr Cimera confirms that he met the applicant at the Bexley Plaza on 25 February 2020 and followed the applicant’s vehicle to his home to enable him to drop it off. He then drove him to work. In respect of returning home, he says this:
“I was seen returning from dropping home at around 2.30pm. He mentioned he wanted to go home and I dropped him home. He had no car here on Wednesday 26 February.”
Mr Spelta says in his statement that:
“It was confirmed that Phil had falsified entries on his timesheet by way of stating false start and finish times on certain days in question including 25 and 26 February 2020.
CCTV footage also confirms certain things in the investigation such as times that Ian (Cimera) arrived and left the depot. Some CCTV footage has been retained if required as well as screen shots of parts of certain footage.
Something that Phil stated in regard to one of the afternoons he was accused of going home early, was that he had been talking to a mechanic at the depot named Stevo Zrinjamin at 3.30pm, asserting that he was definitely there at the end of the day. Stevo Zrinjamin is an elderly employee aged 70.
According to Mr Spelta, Mr Zrinjamin had no memory of speaking with the applicant on the afternoon in question.

Falsification of timesheet

By his second statement the applicant says this:
“The next day on Wed 26 Feb 2020 I drove the cube to work at Botany and worked that day. That day at lunchtime I did my timesheet for the week and I remember Eric saying “don’t forget to put my start time at 8.30am for yesterday and I’m pretty sure I did put my start time down at 8.30am for the previous day (Tuesday 25 February 2020). I drove home that afternoon when I finished work.”
The respondent’s weekly timesheet for the applicant for the week ending 1 February 2020 has been tendered in evidence. I find the entry on 25 February 2020, difficult to read. Mr Le Bechennec’s oral evidence on this point did little to resolve the ambiguities around the entry for the morning of 25 February 2020. There is also a conflict of evidence as to the appropriate finishing time.

Not ready to commence duties on time on 25 February 2020 and were untruthful as to the reasons why this occurred

Evidence in respect of this issue has been set out above.

Persuading potential witnesses not to provide statements

I was not referred to any such evidence during the course of the argument.

SUBMISSIONS

The submissions of the parties are in writing and I do not propose to refer to each of those submissions in these short reasons. I will, however, address the main thrust of counsel’s arguments in resolving the issues in dispute. It may assist the understanding of these reasons if I record the following matters.
Mr Baran launched a vigorous attack on the reliability of the written and oral evidence of the applicant. He submitted that he prevaricated at times during his evidence which was, at times, misleading or “plainly false”.

One example of the latter was the applicant’s apparent denial to Dr Chong, at a pre-employment medical examination arranged by the respondent, of a previous psychological injury in the employ of the Council of the City of Sydney. Mr Baran argued that it was improbable that Dr Chong would have recorded that the applicant had no previous workers compensation claims or compensable injuries if the applicant had not given him that information.
The respondent next submitted that the applicant’s allegation that the statement taken by an investigator (the applicant’s first statement) did not accurately reflect his evidence was also improbable. It also submitted that the answers that the applicant gave on this issue during cross-examination were evasive and inconsistent. Cross-examination established that much of the language recorded by the investigator was language generally used by the applicant.
Thirdly, Mr Baran submitted that the evidence contained in the applicant’s second statement was given with a view to “ blackening” Mr Le Bechennec’s name. Specifically, he referred to that part of his cross-examination where the applicant was asked whether the act of
Mr Le Bechennec in organising for a car to pick him up from work after his car broke down was “an act of bullying” and the applicant’s reply that:
“I think it was.”
This evidence was contrived to assist the applicant’s case.
Fourthly, Mr Baran submitted that the applicant gave evidence in written form and in cross-examination that was inconsistent with the evidence of Mr Amin and Mr Kumar. A number of other answers were inconsistent with the evidence contained in the clinical notes of Dr Stevans, the vocational assessment report, the evidence of Mr Le Bechennec, and the surveillance evidence.
On the assumption that the evidence of the applicant was unreliable, the evidence of the respondent’s witnesses should be preferred. It followed that the applicant’s psychological injury was caused by the disciplinary proceedings and not by bullying and harassment by Mr Le Bechennec as the applicant alleged. In the circumstances the applicant’s claim must fail by reason of the operation of s11A. Mr Baran submitted that the information that came to light during the investigation was serious. It included:
“acts of dishonesty, in particular failing to disclose prior workers compensation claims, failing to disclose prior psychological illnesses and injuries and serious questions about trust and honesty regarding timesheets, the recording of time as well as impermissibly leaving early and engaging in conduct that breached the fundamental obligation of trust and honesty upon which Bayside Council operated.”
Mr Baran submitted that the process by which the applicant was dismissed was objectively “reasonable “as required by the case law in respect of s11A(1) of the Workers Compensation Act 1987 (the 1987 Act).
Mr Hanrahan submitted that Mr Le Bechennec’s act of providing a vehicle to the worker, after curtailing his grant leave, had an “oppressive effect on the worker”. He continued:
“The withdrawal of the leave was the precipitating event that takes the respondent’s behaviour thereafter as unreasonable. The worker rightly complains that if his leave days had not been withdrawn none of the ensuing events that ultimately led to his dismissal on or about 15 April 2020 would have occurred.”
Mr Hanrahan argued that the evidence of Mr Le Bechennec should not be accepted as his evidence of not receiving a telephone call was inconsistent with the Telstra document that proved a call had been made to his mobile phone at the time alleged.
Mr Hanrahan argued that the applicant’s “psychological state” was worse at termination than at the time he commenced employment. His condition had:
“now deteriorated and has been aggravated to such a degree that he requires ongoing psychiatric consultation and he is unable to work in anything other than a sedentary role in an office, for which he has no experience.”
This was the consequence of the system implemented by Mr Le Bechennec which involved the worker being picked up by “unwilling co-workers which inevitably led to problems which were foreseeable.”
Mr Hanrahan submitted that the disciplinary meeting of 28 February 2020 was another example of a poorly managed event. The meeting was called with undue haste. The worker was only given four hours’ notice of the meeting and details of a very limited agenda. However at the meeting , the respondent’s servants enquired as to several other unnotified events. This was not reasonable.
Curiously, the applicant conceded that the psychological injury was wholly or predominantly caused by actions by the respondent which fell within s 11A(1). The submission was put thus:
“The worker concedes that the predominant, main or principal cause of injury involved the categories referred to in s.11A, including the provision of employment benefits, discipline and retrenchment or dismissal. The causal relationship between the actions of the respondent and the worker’s psychological injury is not disputed.”
That submission seems inconsistent with the earlier argument that the events which precipitated the applicant’s psychological injury included the request/demand that he return from leave on 14 February 2021 and the “oppressive “deployment of Mr Amin and Mr Kumar to transport him to and from the job site.
Mr Hanrahan submitted, however, that the entirety of the circumstances of the initial investigatory meeting was unreasonable. It was brought on at short notice, the agenda was expanded without notice to the applicant and the meeting was pressed on these issues despite the fact that the Council knew or ought to have known that the applicant was to go on holidays at the end of that day. He also submitted that the outcome of the investigation and the punishment imposed was not proportionate to any offence committed by the applicant and was, therefore, not reasonable.

DISCUSSION AND FINDINGS

Credit

There are several aspects of the applicant’s evidence and his presentation during the audio-visual arbitration which caused me to conclude that his evidence was not always reliable. I place little weight on the applicant’s alleged failure to disclose his prior psychiatric injury with the Sydney County Council to the respondent or to disclose the medical history associated with it. It is axiomatic that if a worker makes such a disclosure he would, almost certainly, not obtain the desired employment. In those circumstances, withholding of this information, provides only an inexact measurement the reliability of a worker’s evidence. The necessity of obtaining employment and earning a living may cause an honest witness to withhold such information.
On the other hand, it is impossible to reconcile the conflicting evidence of the conversations that took place between the applicant, Mr Amin, Mr Kumar and Mr Le Bechennec on the morning of 18 February 2020. I have set much of this evidence out above and it is unnecessary to recapitulate it. However, both Mr Kumar and Mr Amin deny that they said they were late to collect the applicant because of “heavy traffic”. In their supplementary statements both deny that conversation with the applicant including the applicant’s assertion that he suggested to them that they went to get coffee. Similarly, both the witnesses
deny stating to Mr Le Bechennec that they were late because of “heavy traffic”.
Mr Le Bechennec’s evidence on this point is consistent with their evidence.
Mr Kumar denies that he told the applicant that they had stopped off at a coffee shop on the way to pick him up or that he told him that he had informed Mr Le Bechennec that this was the case when enquiries were made as to the reasons for the late arrival of the workers at the job site on the morning of 18 February 2020.
It is, of course, possible that Mr Le Bechennec and the two co-workers of the applicant were colluding to undermine him. It is not uncommon for employees to take the position adopted by their employer in these disputes for obvious reasons. There is also one evident flaw in the evidence of Mr Le Bechennec related to the telephone call made by the applicant on the morning of 25 February 2016. None of these matters, however, satisfactorily explain the consistent evidence given by the three witnesses, contrary to the applicant’s evidence, as to events on the morning of 18 February 2020. In those circumstances, I conclude that the applicant’s account is not reliable.
It is also necessary to consider the evidence of Mr Pickens, one of the applicant’s neighbours, who states that he saw the applicant at the front of his home ready to be collected some half hour before the work ute arrived. Mr Pickens was required for cross-examination by the respondent but did not present himself at the audio-visual arbitration hearing. No application was made for an adjournment and it is not evident why the witness did not attend. While his evidence is relevant, I doubt that it effectively undermines the evidence of Mr Amin and Mr Kumar. Both gave oral evidence at the arbitration hearing. Evidence as to the precise times given many months after the event is notoriously unreliable.
There are other aspects of the applicant’s evidence that are also difficult to accept. The significant difference in content and in emphasis between his first and second statements is said to be because the investigator who recorded the first statement did not accurately record his evidence. I doubt that this is the case. The applicant’s oral evidence on this point is unconvincing. While I appreciate the investigator who had recorded the first statement may have employed his own language, it is unlikely that the applicant would have signed the statement if various aspects of it conveyed a meaning completely different to that intended by him.
Importantly, some aspects of the content of the supplementary statement are also unconvincing. By that statement, the applicant probably sets out to prove that from a time reasonably early in their relationship Mr Le Bechennec and other employees subtly bullied and harassed him. However, that evidence is contradicted by a deal of other evidence. It is, of course, contradicted by the evidence of Mr Le Bechennec. The applicant’s evidence is also inconsistent with the evidence of Mr Lynch and Mr Peacock. Given the conclusions that I have reached in respect of the applicant’s evidence as to the morning of 18 February 2021, it is unnecessary to deal with these matters in detail.
Unfortunately, each of the respondent’s witnesses who gave oral evidence had language problems which handicapped Mr Hanrahan’s attempts to cross-examine. It would have been preferable for such evidence to have been given through an interpreter. Nonetheless, no application was made for an adjournment and with the exception of the phone call evidence which I have referred to above, there was nothing in the cross-examination that would cause me to doubt their written evidence. To the limited extent that demeanour is of assistance, I observed nothing to suggest that these witnesses were not doing their best to assist the Commission in its enquiry.

Section 11(a)(1)

The exposition of the law relating to s 11A (1) in Northern NSW Local Health Network v Heggie [2013] NSW CA 255 (Heggie)) provides a useful starting point for any decision involving the section. In that case, Sackville AJA said this at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s11A(1) of the WC Act:
(i)A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)Nonetheless, for s 11A (1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other 13 disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances. (vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
The concept of reasonableness in s 11A is not clearly defined in the case law. In Commissioner of Police v Minahan [2003] NSWCA (24 September 2003) the Court of Appeal referred to decisions of the Compensation Court relied upon by Walker J, at first instance, without suggesting that they were erroneous. In Irwin v Director-General of School Education (unreported, 18 June 1998) Geraghty J, stated:
“The question of reasonableness is one of fact, weighing all the relevant evidence. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of “reasonableness” is objective and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances by a question of fairness.”
Then, in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss J, stated: “In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected”.
The reasoning in Heggie casts some doubt on whether it is always necessary to consider the rights of the employee. Obviously, it will be necessary to undertake that task in many cases: c.f. Pirie v Franklins Ltd [2001] NSWCC 167 (10 September 2001). I see no reason why this is not such a case.
Mr Hanrahan conceded, as I indicated above, that the applicant’s psychological injury was wholly or predominantly caused by the respondent’s actions in respect of discipline etc. I have formed the view, however, that the respondent has not established on the balance of probabilities that such actions were reasonable. It is, therefore, unnecessary to consider further the potential conflict in the applicant’s submission on causation.
Mr Baran submitted that the blemishes in the disciplinary process instigated by the respondent would not detract from a conclusion that the entirety of the process was reasonable. This, of course, is a submission based upon the reasoning in Department of Education v Sinclair[2005] NSWCA 465 (20 December 2005), where the following appears in the reasoning of the Chief Justice at [97]:
“His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation “reasonable action with respect to discipline”. In my opinion, a course of conduct may still be “reasonable action”, even if particular steps are not. If the “whole or predominant cause” was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, “reasonable action”. For this alternative reason the appeal should be allowed.”
In my opinion, however, the flaws in the disciplinary process in this case go to the very heart of the issue of procedural fairness. First, the applicant was given notice of the investigatory meeting on the morning of 28 February 2020, only a few hours before the meeting took place on a day when he was about to commence an overseas holiday. The only allegation raised in the letter notifying him of the meeting was said to be his aggressive behaviour towards Mr Amin earlier in the week.
It was not suggested by the letter that the applicant had physically assaulted Mr Amin. Rather it was alleged that he had raised his voice and “thrown papers” in the work utility. Given the relatively innocuous nature of these allegations, it is not surprising that the applicant decided to embark on the meeting at short notice without a support person and without the opportunity to reflect or respond to the issues which were subsequently raised. It is common ground that the issues raised at the meeting related to more serious misconduct, which was not foreshadowed; including leaving work early and the falsification of the applicant’s timesheet. Patently, it is unfair to raise such issues without notice.
In my opinion, however, there were other flaws in the disciplinary process. The applicant was forwarded the show cause letter, shortly after his return from holidays in Thailand in mid-March 2020, in circumstances where the respondent’s COVID policy precluded him from attending work. Thus, the applicant was left to respond to the allegations made against him without having the capacity to attend the respondent’s premises and ascertain whether he could find support for his position from fellow employees.
While it was not raised in submissions, the show cause letter also precluded him from conferring with Council employees in respect of the disciplinary allegations. Given the respondent’s insistence that the applicant should not return to work for 14 days after his arrival in Australia from Thailand, that is probably immaterial. Nonetheless, the actions of the respondent, in my view, handicapped the applicant’s right to respond to the show cause letter. This was compounded by the fact that the only mode available to him to respond to the respondent’s allegation was by email on his mobile phone.
Thirdly, I am not persuaded that it was reasonable to deprive the applicant of a face-to-face disciplinary meeting. Obviously, it is not easy to respond to serious allegations when viewing one’s accuser on the screen of a mobile phone. Taken together these last two matters strongly suggest pre-judgement of the outcome at the time the respondent required the applicant to show cause.
Fourthly, I am not persuaded that the evidence put before the Commission necessarily establishes that the applicant made “fraudulent” entries in the respondent’s timesheet or that he “fraudulently” received wages for time that he did not work. It is necessary for the respondent to prove serious allegations in accordance with the principles in Briginshaw v Briginshaw (1938) 60 CLR 336. Fifthly, I am not persuaded that the applicant attempted to influence witnesses.
It is true that there is some evidence that the applicant went home early on 25 and 26 February 2020, however, it is not sufficient, in my opinion to prove such a serious allegation as fraud. There remains to my mind some doubt as to the ordinary finishing time of workers in the respondent’s employ, which the applicant says varied between the Botany and Bexley depots. More importantly, the applicant’s evidence that he drove his own vehicle to and from work on 26 February 2020 is logical and persuasive. It has not been contradicted by direct evidence called by the respondent.
It is, of course incumbent upon the respondent to call evidence to establish the basis of the various allegations made against the applicant. In my view the evidence called in respect of this issue is unsatisfactory.

I have concluded that the respondent has not established that the applicant’s psychological injury was caused by reasonable action taken by it with respect to discipline or the other aspects of s 11A(1) relied on at the hearing. I emphasise that this is not a finding that the respondent’s actions in respect of discipline were unreasonable.

Incapacity

As it is accepted that the applicant suffered a psychological injury, it is unnecessary to consider further the substantial differences in content and in emphasis between the applicant’s first and second statements. As I have indicated, the second statement suggests that Mr Le Bechennec and other employees of the respondent had harassed the applicant for many months prior to the events of February 2020. It is also unnecessary to grapple with Mr Hanrahan’s submission that cancellation of the applicant’s “grant leave”, and arranging for him to be picked up by reluctant co-workers precipitated a train of events that resulted in his psychological condition. I should add that I doubt that the evidence establishes that Mr Le Bechennec systematically bullied the applicant at any time.
Following his injury, the applicant came under the care of Dr Bassal Abdul Rahman, who referred him to a psychologist and referred him back to a psychiatrist who he had previously seen, Dr Goran Stevans. Dr Rahman certified the applicant as unfit for work on 1 March 2020. By a report in response to an enquiry from the applicant’s sickness and accident insurer dated 14 January 2021, Dr Rahman says that he first saw the applicant on 1 March 2020 reporting “issues with insomnia and increasing anxiety”. At that time he was “quite agitated and had reduced eye contact”.
The doctor expressed the opinion that the applicant needed continuing psychotherapy and review by Dr Stevans. He said this:
“I believe there will be improvement with the passage of time. Closure will also be an important component of treatment.”
He stated that the applicant was not likely to return to work as a road sweeper but could “definitely return to work in another role though”. He thought that was likely to be in a more sedentary environment such as office or retail.
Dr Teoh, a psychiatrist, saw the applicant at the request of his solicitors on 30 July 2020 and provided a report dated 3 August 2020. Dr Teoh had seen the applicant for his previous psychological injury at the Sydney County Council. His reports are quite terse. He diagnosed that the applicant was suffering from an adjustment disorder with depressed mood. He accepted that the applicant’s employment with the respondent had “aggravated a pre-existing psychiatric condition”. He expressed the opinion that the applicant was fit for suitable employment but did not elaborate on the nature of that employment. He recorded that the applicant suffered permanent impairment of 15% whole person impairment for the purposes of s 66 of the 1987 Act.
Dr Adam Martin, a psychiatrist saw the applicant on 7 May 2020 at the request of the respondent. Dr Martin expressed the opinion that the applicant suffered from a diagnosis of adjustment disorder which had been primarily caused by his employment with the respondent. He thought that it was appropriate for him to seek psychological help in order to aid his coping skills and manage anxiety/distress/anger. He also thought that it was reasonable for him to take an anti-depressant. In respect of the issue of employability, he said the following:
“While accepting that he has significant distress, I do not think he is psychologically incapacitated and my view is that there is no psychiatric barrier for him being able to work. He reports significant trust issues which in my view, likely reflects longstanding personality traits with experience in the workplace before apparently. He has a negative attitude to employment as a result of his perception of being mistreated in the workplace and he self-reports significant trust issues. In my opinion this would not medically preclude him from working.”
While Dr Martin thought the applicant was psychologically fit for work he did not specify particular jobs in which he could work. He noted that the applicant did not see himself as psychologically fit to work and that:
“appears to be entrenched in a position of industrial conflict, reporting psychological injury and does not express confidence in being able to work currently.”
Dr Martin provided a further report of 7 December 2020. He expressed the opinion that the applicant continued to suffer from an adjustment disorder. He thought that he had a “poor prognosis in terms of going back to sustainable work”. He noted that:
“He presents with an entrenched sense of entitlement, which is a negative prognostic factor, and this is unlikely to change in my view with psychological or psychiatric treatment.”
He continued:
“From a clinical perspective it would be appropriate for him to engage in occupational rehabilitation although I am somewhat pessimistic about this being successful in the current circumstances.”
On 14 May 2020, a vocational assessment report from Specialised Vocational Medico-Legal Services suggested the roles of a paving and surface labourer (operations technician), a courier or delivery driver, a meter reader, or a truck driver were suitable for the applicant given his work experience. The report was signed by Richard Erber, a rehabilitation counsellor and vocational assessor.
Although he did not see the applicant again, on 29 June 2021, Dr Martin provided to the respondent a further report. Importantly, the doctor reviewed a surveillance report and video footage of the applicant’s activities for the purpose of providing his opinion. Dr Martin expressed the opinion the applicant’s activities depicted in the surveillance were relevant, “casting doubt on his exact capacity for work”. He continued:
“The surveillance footage shows him apparently socialising with others in cafes, driving by himself and apparently attending a location that has been identified as possibly a brothel [but noting that Mr Ware told me he had paid for “massages” at paragraph 9 of my December report]. The contents of the surveillance footage are not particularly consistent with a person who was experiencing very significant depressive and anxious symptoms, noting that he does not appear emotionally stressed and is able to interact in a seemingly friendly manner although it is always somewhat problematic given that people’s mental states fluctuate and given that I have not reviewed him more recently. However, on balance it is reasonable to draw the conclusion that there is considerable inconsistency between his narrative account when interviewed him myself compared with the contents of the footage.”
Dr Martin repeated the opinion that he had previously expressed, namely that the applicant was “psychologically fit” to perform his duties as a full-time operations technician. He opined that the surveillance footage was not consistent with a person experiencing major psychiatric pathology which would prevent him from working.

The surveillance video

The dates of the surveillance video are not entirely free from doubt. However, it was not objected to at the arbitration hearing. It appears to have been taken over eight days in January and February 2021 and the video exposed is 1 hour and 14 minutes in length. It shows the applicant driving a vehicle in his local area, visiting a Thai massage parlour, visiting a café, having a meal with two adults at Chicken Ace, and visiting other shops at Ramsgate Plaza. It also depicts him chatting with people near his property on one occasion.
By a lengthy statement of 2 July 2021, the applicant responds to the video surveillance. The essence of his statement is that he generally felt comfortable patronising the local businesses at which is shown on the surveillance video. In response to the suggestion that he visited a Thai massage parlour or a brothel on 18 January 2021, the applicant says:
“28. For example, I have attended to catch up with Joe and Mae or, on other occasions, I have attended for Mae to give me a massage or to use their washing machine during periods that my washing machine was broken down.
29. Mae charges $90 for a massage. Due to the psychological problems that I experienced whilst working at Bayside Council, I found that seeing Mae for massages helped me to attempt to ‘switch off'.
30. When I didn't feel like a massage from Mae, I often asked Mae if she could lend me her portable back massager. Over the last year or so, I have borrowed Mae's portable back massager a few times.
31. The footage taken on 18 January 2021 at 65 Planthurst Road, Carlton between 14.07 and 14.12 was one such occasion that I attended the venue to pick up Mae's back massager. I had previously made arrangements with Mae to pick up her portable back massager on this day.”
While the video surveillance would have little weight in a claim for physical injury, its significance in a case of psychiatric injury is obviously a matter for medical opinion. It does demonstrate the applicant readily engaging with other people and appearing to enjoy it. That impression is not refuted by his statement evidence. There is no reason to reject the opinion of Dr Martin based on the surveillance footage in the absence of medical evidence to the contrary.
I would infer from his report that the applicant’s general practitioner Dr Rahman certified him as unfit for work throughout 2020. He envisaged, however that the applicant would return to employment. Both Dr Martin and Dr Teoh are of the opinion that the applicant is capable of some work. Dr Martin’s opinion, which was revised and revised again after viewing the surveillance material, is that the applicant is probably psychologically fit for normal duties at normal hours. Dr Teoh, on the other hand is of the view that the applicant is fit for suitable duties.
The applicant’s claim is for $1,119.24 from 28 February 2020 to 14 April 2020 (the first entitlement period) and for $1,009.89 per week from 15 April 2020 to date and continuing (the second entitlement period). The figures are consistent with a work capacity decision made by the respondent that the applicant’s pre-injury average weekly earnings were $1,262.36 per week. However, the dates are not readily comprehensible. As far as I can recollect, the effect of the work capacity decision was not addressed during the arbitration hearing. However, I see no reason why I should not review that decision in accordance with the evidence before the Commission.
I accept that the applicant suffered a psychological injury and that it has continued to affect him, although with diminishing force, up to the present. Doing the best I can on the medical evidence, I am inclined to the view that the applicant had no current earning capacity from the date he was so certified as unfit by Dr Rahman until he saw Dr Martin for the first time. Dr Rahman was in the best position to assess the applicant’s capacity during this time and there is no specialist medical evidence to the contrary. Thereafter, he was fit for suitable duties until the end of the year.
Dr Martin saw the applicant on 7 May 2020 and Dr Teoh shortly afterwards on 30 July 2020. Both were of the opinion that the applicant was capable of working. While the applicant states that he is incapacitated for work, the weight of the opinions of the two psychiatrists must prevail on the issue of incapacity. Synthesising the medical evidence, it seems to me probable that the applicant could have worked for four days a week in some menial employment earning the minimum wage during this period. I doubt whether he was capable of performing work requiring concentration for social interaction during this period. Accordingly, I doubt that the work options proposed by Mr Erber are realistic. Utilising the minimum wage, I find that the applicant was able to earn $603.04 per week during this period.
From the beginning of the 2021, given Dr Martin’s opinion, which is uncontradicted and in view of my doubts about the reliability of the applicant’s evidence, I find that the applicant has not established that he has an entitlement to compensation. In my opinion, it is more probable than not that the applicant could earn the equivalent or more than 80% of his pre-injury average weekly earnings in some suitable employment as that term is defined in s32A of the 1987 Act from 1 January 2021 to date. In my opinion it is likely that he could perform the roles envisaged by Mr Erber in his vocational assessment report. Equally, on the basis of Dr Martin’s opinion it seems likely that he could perform his preinjury employment.
Accordingly, I find that:
·        the applicant suffered psychological injury arising out of and in the course of his employment namely an aggravation of a pre-existing adjustment disorder with anxiety and depressed mood;
·        the notional date of injury for the purposes of s16 of the 1987 Act is 19 March 2020;
·        the respondent has not established that the applicant’s injury was wholly or predominantly caused by reasonable action taken by it with respect to discipline;
·        at all material times the applicant’s pre-injury average weekly earnings were $1,262.36 per week;
·        as a result of psychological injury the applicant had no current earning capacity from 19 March 2020 to 6 May 2020;
·        from 8 May 2020 to 31 December 2020 the applicant was able to earn in some suitable employment as that term is defined in s32A of the 1987 Act the sum of $603.04 per week, and
·        from 1 January 2021 the applicant was able to earn more than 80% of his preinjury average weekly earnings in some suitable employment.
I propose to make the following orders:
(a)    Award for the applicant for weekly compensation as follows:
(i)$1,119.24 from 19 March 2020 to 7 May 2020;
(ii)$596.20 from 7 May 2022 18 June 2020 pursuant to s 36, and
(iii)$406.84 from 19 June 202 to 31 December 2020.
(b)    Liberty to the parties to apply in respect of the calculations and entitlement periods above.
(c)    Credit to the respondent for payments made but only in respect of the week during which those payments were made.
(d)    Remit the matter to the President for referral to a Medical Assessor to certify the degree, if any, of whole person impairment as result of psychological injury which is deemed to have occurred on 19 March 2020 as a result of the applicant’s employment before that date.
(e)    Medical Assessor to have access to the documents enumerated in paragraph 14 above and to the documents attached to the respondent’s Application to Admit Late Documents dated 16 September 2021 and a copy of these reasons.

[2021] NSWPIC 407

12 October 2021