Waverley Council v Sfuncia
[2021] NSWPICPD 43
•3 December 2021
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
| CITATION: | Waverley Council v Sfuncia [2021] NSWPICPD 43 |
| APPELLANT: | Waverley Council |
| RESPONDENT: | Gregorio Sfuncia |
| INSURER: | StateCover Mutual Limited |
| FILE NUMBER: | A1-7547/20 |
| PRESIDENTIAL MEMBER: | President Judge Phillips |
| DATE OF APPEAL DECISION: | 3 December 2021 |
| ORDERS MADE ON APPEAL: | 1. The Member’s Certificate of Determination dated 12 March 2021 is confirmed. |
| CATCHWORDS: | WORKERS COMPENSATION – s 4(b) of the Workers Compensation Act 1987 – actions of co-worker towards worker – worker assaulted by co-worker – continued conduct of co-worker after their termination towards worker – causation – Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 applied – action of employer in respect of promotion – s 11A(1) of the Workers Compensation Act 1987 – contents of medical notes to be approached with care – Mason v Demasi [2009] NSWCA 227 applied – absence of complaints in records – Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548 |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr W Murphy, solicitor | |
| Bartier Perry | |
| Respondent: | |
| Mr C Tanner, counsel | |
| Carroll & O’Dea Lawyers | |
| DECISION UNDER APPEAL | |
| MEMBER: | Mr P Young |
| DATE OF MEMBER’S DECISION: | 12 March 2021 |
INTRODUCTION AND BACKGROUND
Mr Sfuncia (the respondent worker) was employed by Waverley Council as an “Open Spaces Officer”, commencing on 22 November 2016 and ceasing on 10 January 2019.[1] His role required him to work in a team maintaining parks and streets in Waverley Council.
[1] Letter of Termination, Application to Admit Late Documents (AALD), p 119.
The respondent worker claims workers compensation for a psychological injury as a result of a number of incidents occurring throughout the duration of his employment. These incidents involve harassment and intimidation from his team leader (Mr Baghadi[2]) which continued after Mr Baghadi left the employ of Waverley Council and resulted in criminal charges, as well as the failure to attain a promotion, and a delayed performance review with pay increase.
[2] Mr Baghadi’s name is spelt in various ways in the papers before the Commission. I have adopted the spelling in the police report/AVO as being more likely to be the correct spelling of this person’s name. No disrespect is intended.
StateCover, the insurer for Waverley Council, disputed liability for the respondent worker’s claim in a lengthy s 78 Notice dated 26 July 2018[3], affirmed in a s 287A Review Notice dated 17 July 2019.[4] Liability was disputed pursuant to ss 4 and 4(b) of the Workers Compensation Act 1987 (the 1987 Act), premised on a factual dispute as to the respondent worker’s allegations, and on the basis that the incidents involving Mr Baghadi following his termination did not arise out of, or in the course of the respondent worker’s employment. StateCover also raised a defence pursuant to s 11A(1) of the 1987 Act, in that the respondent worker’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by Waverley Council with respect to a promotion.
[3] Application to Resolve a Dispute (ARD), pp 47–55.
[4] ARD, pp 66–71.
The respondent worker commenced proceedings in the former Workers Compensation Commission on 22 December 2020. The matter was heard before Arbitrator Young (as he then was) on 22 February 2021.
In his capacity as a Member of the Commission, the Member found in favour of the respondent worker and issued a Certificate of Determination dated 12 March 2021 which awarded the respondent worker on-going weekly compensation and medical expenses and referred his claim for whole person impairment to a Medical Assessor.
This appeal is essentially an all grounds appeal against the decision of the Member. The respondent worker suffers from a psychological injury, and the doctors for both parties agree that that is the case. However where the dispute firstly arises relates to how that condition came about, and secondly, whether the appellant, Waverley Council, could avail itself of the defence found in s 11A(1) of the 1987 Act.
TRANSITIONAL MATTERS
This matter was commenced in the former Workers Compensation Commission but was decided after that Commission was abolished.[5] The decision appealed against in this matter was delivered on 12 March 2021. The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[6] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act.
[5] Clause 3 of Div 2 of Pt 2 of Sch 1 of the Personal Injury Commission Act 2020 (the 2020 Act).
[6] Section 12(1) of Div 2.3 of Pt 2 of the 2020 Act.
ON THE PAPERS
Section 52(3) of the 2020 Act 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.”
Having 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 1998 Act have been met.
THE EVIDENCE
Given the nature of the issues disputed, and the brevity of the Statement of Reasons, I consider it relevant to discuss the factual and medical evidence before me.
Worksite investigation report dated 28 July 2017
This factual investigation report has been served in the Application to Admit Late Documents dated 16 February 2021 by the respondent worker after it was produced by the employer.[7] The report investigates 13 allegations of misconduct made against Mr Baghadi, supported by witness statements from members of his team, including the respondent worker. The incidents involving the respondent worker which are alleged to be causative of his injury were altercations instigated by Mr Baghadi on 29 March 2017 regarding the use of a hose, on 24 May 2017 regarding the laying of turf, and 27 June 2017. Notably, several of the complaints made against Mr Baghadi indicate that he engaged in similar behaviour toward others and had disregard for WHS practices.[8] I do not propose to detail these statements here, as the incidents specifically concerning the respondent worker are addressed in the statements obtained by NSW Police, commencing at [15] below.
[7] AALD, p 4.
[8] Statements of Lenny Mahony (AALD, p 54) and Daniel Adoux (AALD, p 38).
Report of findings relative to allegations concerning Mr Baghadi, dated 17 August 2017
This report was prepared by the “Manager People Culture Learning” of Waverley Council who made the recommendation to terminate Mr Baghadi following investigation. It was determined that 6 of the 13 allegations were substantiated, including those involving the respondent worker. The report highlighted the severity of Mr Baghadi’s misconduct and particularly the incident of 27 June 2017 when he encouraged the respondent worker to lie to management about the earlier incident of on 24 May 2017, then attempted to steer him off the road, and drive toward him and a co-worker:
“Whilst each of the matters sustained to date are Serious Misconduct on behalf of the subject officer, the review panel thought this the most egregious in that the subject officer has attempted to suborn a witness by asking him to lie about his testimony. In the view of the panel’s this is the most serious misconduct displayed by this officer. It should be noted that [the respondent worker] is person who has been bullied and disrespected by the subject officer on a number of occasions and is regarded as a victim in these matters …
… The ferocity of the verbal attacks upon fellow workers from a man who has supervision over them is concerning of itself. The fact that he also then then drove a car towards two Council workers from his team within the grounds of the Council carpark and the fact that he attempted to suborn a witness whom he has bullied and harangued is truly incredible …
… This determination has only added to the need to ensure a strong stand is made by the organisation in relation to matters of this nature. Whilst much is rightly made about the rights of the subject officer in matters of this nature, the health and well-being of victims of such attacks must also be considered when deciding on actions to be taken. These men have undergone prolonged abuse and threatening behaviour by an officer entrusted with their supervision, albeit at a lower level. The fear demonstrated by some of the witnesses did not go unnoticed as they had been threatened with not only violence but their jobs …”.[9]
[9] AALD, pp 90–96.
This internal review is of course not binding upon the Commission which must reach an independent view of events. Nevertheless, I would remark that the appellant acted upon this report when it moved to terminate Mr Baghadi’s employment.
Police statements
Mr Sfuncia provided a statement to the NSW Police on 19 January 2018 in which he reports the altercations involving Mr Baghadi, both prior to and following Mr Baghadi’s termination from Waverley Council.[10] Police Statements were also provided by Mr Daniel Adoux[11] and Mr Luke Crich[12] who witnessed some of these events. These Police Statements relate to the criminal charges made against Mr Baghadi by the respondent worker. The court documents relating to those charges have not been served in evidence to these proceedings, although the respondent worker has addressed the charges in his evidentiary statement for his workers compensation claim. Notably, those charges and the events outlined below have not been contested by the appellant.
[10] ARD, p 3.
[11] ARD, pp 37–38.
[12] ARD, pp 39–41.
In his statement to the Police, the respondent worker describes getting along with Mr Baghadi at the commencement of his employment in November 2016, however he noticed a change in Mr Baghadi’s behaviour, and that he became indecisive, argumentative, scattered and aggressive.
The respondent worker states that on 24 May 2017, Mr Baghadi was argumentative in response to his suggestions while discussing how to complete a job laying turf. A verbal argument pursued and resulted in Mr Baghadi threatening to physically assault the respondent worker by asserting “I’m going to put your f…g head through the window …”.[13] Both men were split up by a co-worker, Mr Daniel Adoux.
[13] ARD, p 3, [5].
Approximately one month later (confirmed to be the incident of 27 June 2017),[14] the respondent worker states that while driving he noticed Mr Baghadi driving behind him, blowing his horn and gesturing him to pull over. When he did not, Mr Baghadi cut him off, forcing him to stop his vehicle. Mr Baghadi stepped out and “started to beg” the respondent worker to not report the earlier incident to management.[15] The respondent worker advised that it had already been reported.
[14] See [13] of this decision.
[15] ARD, p 4, [9].
He states that Mr Baghadi followed him around that day, “taunting” and “laughing”.[16] Nearing the completion of the day, he and Mr Adoux were standing next to his vehicle, when Mr Baghadi drove up the car park ramp speeding towards them and only braking when approximately one metre away. He then slowly drove away, with his window down and directed profanities towards them.
[16] ARD, p 4, [10].
Mr Adoux affirms that he witnessed this incident in his Police Statement dated 21 January 2018 and informed his supervisors who reviewed camera footage.[17]
[17] Daniel Adoux’s police statement, ARD, p 38.
Mr Sfuncia tells the NSW Police that he informed his employer of Mr Baghadi’s behaviour on 12 July 2017, when another employee made a complaint against Mr Baghadi. As a result of these complaints, Mr Baghadi was suspended and his employment with the appellant was eventually terminated in or around late 2017.
However, following Mr Baghadi’s termination, a number of events ensued.
Mr Sfuncia received a phone call from a private number and could hear a toilet flushing and men laughing, whom he suspected were friends of Mr Baghadi.
On 2 January 2018 and 3 January 2018, he received several highly unseemly text messages from a “Telstra Payphone” which contained profanities, violent physical threats, and a message stating that it “…TOOK FOUR OF YOUS [sic] TO LIE…”.[18] The respondent worker believed this was reference to the four employees who made complaints against Mr Baghadi during his employment with the appellant. The respondent worker describes feeling “fearful for my safety at my house and work” and that he requires a work colleague always accompany him.[19]
[18] Text message screenshots, ARD, pp 22–25.
[19] ARD, p 5, [16].
On the morning of 19 January 2018, the respondent worker’s partner phoned him to advise that someone had pulled out their chili plants and had left them at their front door with a letter. The respondent worker recognised the handwriting in the letter as Mr Baghadi’s, and again describes being fearful for himself and his family. The letter warned him to “SLEEP WITH ONE EYE OPEN” and threatened to break his legs and would “SPRAY [HIS] HOUSE WITH BULLETS” if he went to the Police. [20]
[20] Letter, ARD, p 26.
In a phone call between Mr Baghadi and the respondent worker that same morning, Mr Baghadi confirmed that he had been to the respondent worker’s house and that he had left a “message” there.[21]
[21] ARD, p 6, [18]–[19].
Mr Crich, another employee of Waverley Council, also tells NSW Police that he was present during this phone call as it was on loudspeaker while he was in the “work car” with the respondent worker. He says that both men argued; that Mr Baghadi said he had been at the respondent worker’s home, and also threatened to “kill” the respondent worker.[22]
[22] Luke Crich’s police statement, ARD, p 40.
Apprehended personal violence order (AVO)
On 29 January 2018, the respondent worker was successful in applying for a 12 month Apprehended Personal Violence Order against Mr Baghadi.[23] The matter was listed for a hearing.
[23] ARD, pp 31–36.
The AVO made orders restricting Mr Baghadi’s behaviour and contact toward the respondent worker and also ordered that Mr Baghadi must not go within 200 metres of his residence or place of work, specifically naming the Waverley Council Building.
Mr Sfuncia’s statements for his workers compensation claim
Mr Sfuncia has prepared several statements for the purpose of his workers compensation claim against Waverley Council.
Initial statement dated 13 June 2018
The paragraphs in this statement are not numbered and therefore the following references are limited to page numbers in the ARD.
At the outset of his statement, the respondent worker confirms that Mr Baghadi was charged in court[24] and had admitted to “stalking, intimidating and damaging property” as well as “bullying [him] at work” by attempting to drive his car off the road, and driving towards him and Mr Adoux in the Council Depot Carpark.[25] He states that although he was happy to win the hearing, he was stressed in its lead up and experienced anxiety and panic attacks which required medication.
[24] The date of these court proceedings is not clear. Mr Sfuncia’s statement indicates a hearing date of 28 March 2018, but the AVO and clinical records indicate the hearing date is in or around late May – early June 2018.
[25] ARD, p 8.
The respondent worker states that he did not suffer anxiety or depression prior to his employment with Waverley Council, and that he first experienced this when working for Mr Baghadi.[26]
[26] ARD, p 8.
During the time complaints were made against Mr Baghadi, he describes attending work as “walking on eggshells” due to Mr Baghadi’s behaviour. He states that he would make attempts to calm Mr Baghadi, who in turn started to focus attention on him. He states that he “probably should have” sought medical attention at the time of lodging these complaints but did not.[27]
[27] ARD, pp 9–10.
Following Mr Baghadi’s termination, the respondent worker describes feeling “safer going to work”.[28]
[28] ARD p 10.
He moved into Mr Baghadi’s position as an acting team leader,[29] on a two-week rotation with another colleague. In this role, he reported to Mr Francis, and states that he felt that Mr Francis was unfairly allocating work between him and the other team leader. He felt that Mr Francis was “indirectly putting extra pressure on [him]” by allocating him a “run schedule” and allowing the other team leader a “lighter schedule of work”.[30] This became apparent when he would move back into his substantive role, and the workload for the other team leader appeared lighter. When he raised this with Mr Francis, he states Mr Francis laughed and said, “this is the way it is”.[31]
[29] This role is later referred to in other witness statements as a “Senior Open Spaces Officer (SOSO)”.
[30] ARD, p 11.
[31] ARD, p 11.
In February 2018, the respondent worker informed Mr Francis that his home had been vandalised by Mr Baghadi. Mr Francis advised he was not sure what he could do as Mr Baghadi was no longer employed by the Waverley Council, but he offered to phone him. The respondent worker stated that this “indicated to me that he still had a connection with [Mr Baghadi]”.[32]
[32] ARD, p 12.
Subsequent to this conversation, the respondent worker recalls that during a team meeting, Mr Francis addressed the team’s early morning phone calls and text messages and said “everyone’s information including addresses is on the Council computer and he could come around to their house at any time”. The respondent worker recalls some team members laughing at this comment, but he took offence, stating it made him wonder whether Mr Baghadi had been provided with his address by someone at Waverley Council. He reported this comment to Mr Francis’ manager, Mr Tony Thompson.[33] It is later revealed that Mr Francis was counselled in relation to his comments.[34]
[33] ARD, p 12.
[34] See [76] of this decision.
In addition to these matters, respondent worker recalls that his “performance review” had been held back by Mr Francis,[35] and that there was an eight-month delay in processing the recommended pay increase despite others receiving theirs immediately. When he enquired about the progress of his pay increase, he was advised it was awaiting sign off.
[35] This performance review is referred to in other witness statements as a “Skills and Performance Assessment” (SAPA).
The respondent worker applied for the position of a full-time team leader and was interviewed on 21 February 2018. Although he believed he met the criteria for the position, he believed the interview was impacted by the fact his performance review had not been processed. Despite his performance review indicating that his “work performance was above and beyond what was expected”, the panel were not able to take it into account. He states that on 27 February 2018, Ms Vicki Parry of HR informed him that his application was unsuccessful due to his excessive sick leave and as he did not have a business management qualification. The respondent worker explained that he took sick leave to care for his parents, to which she advised they required someone reliable. He responded that there were no complaints about his work, or his team, and all his work had been completed. He alleges that Ms Parry then said he “would not move any further in this establishment”.[36]
[36] ARD, p 14.
This comment upset Mr Sfuncia. He states that he continued working that week but was “feeling depressed” and did not attend work on 6 March 2018 and 8 March 2018. Although he advised Mr Francis he was absent due to family issues, he really “just did not feel like going to work” and was “feeling down and had no energy”.[37]
[37] ARD, p 15.
On 12 March 2018, the respondent worker sought medical treatment from Dr Chaplin of Marrickville Metro Medical Centre. He recalls experiencing panic attacks, shortness of breath, sweating, tightness in his chest and nervousness. He states that Dr Chaplin considered he was highly stressed and advised him to take the week off and prescribed Temazepam to assist with his sleeping problems.[38]
[38] ARD, p 16.
On 13 March 2018, the respondent worker spoke to a union delegate.[39]
[39] ARD, p 15.
After returning to Dr Chaplin one week later, he was referred to a clinical psychologist, Muhamad Ziedni. He says it was after the fourth session that his treaters determined that he should be claiming workers compensation, and he was then issued with a SIRA certificate of capacity on 9 April 2018.
While the respondent worker states that he is “really not sure” if he would have ceased work if he had been promoted, he states that during that time he was still dealing with the effects of Mr Baghadi’s behaviour. He states that “there were little blows after little blows and in total it affected me”. He states that if he went back to work, he felt he would “be pushed aside by anyone who was friendly with [Mr Baghadi], who still work at Waverley Council, particularly now that he has been charged”. Further, he felt his progression in the Council was stunted after the comment made by Ms Parry.[40]
[40] ARD, pp 16–17.
Mr Sfuncia states that he was undergoing fortnightly treatment and was prescribed an increased dosage of Efexor due on on-going sleep issues and panic attacks.[41]
[41] ARD, p 17.
Supplementary statement dated 13 December 2019
In this statement, the respondent worker refers to clinical records of his general practitioner after presenting to him with “stress and anxiety as a result of workplace bullying, threats [he] had received and a sense of hopelessness around [his] continued role at the Council”. The respondent worker does not specify the clinical entry he is referring to, although it does appear to correlate with the first visit to Dr Chaplin on 12 March 2018. The respondent worker clarifies that the harassment he complained of in that entry was the harassment perpetrated by Mr Baghadi, and that the meeting he complained of was that with Ms Parry when he was informed that he was “unlikely to progress anywhere inside Council”.[42]
[42] ARD, p 19, [1]–[3].
At [4], the respondent worker indicates that he sought medical attention due to the cumulation of events:
“everything has just gotten too much … not because of the meeting itself, but rather that the meeting crystalised for me the sense that I was not welcome at Council and that, in addition to the direct bullying and harassment I had received from [Mr Baghadi], that my senior managers were not going to help or promote me”.[43]
[43] ARD, p 19.
Notably, at [7]–[9], the respondent worker addresses the s 11A(1) defence raised by the appellant employer in stating:
“It is certainly not the case at all that the ‘whole or predominant’ cause of my injury was what happened at the promotion meeting.
… this was merely the straw that broke the camel’s back, and I was already feeling very low by then, was taking time off work which I told my employer was to do with my sick parents, and was occasionally leaving work earlier when Sam’s bullying and harassing had gotten too much for me during the day”.[44]
[44] ARD, p 19.
Further supplementary statement dated 26 November 2020
The respondent worker recalls that in about March 2019, one day after Mr Baghadi’s AVO expired, the front windscreen of his car was smashed. This was witnessed and reported to the police.[45]
[45] Images of the respondent worker’s car are at ARD, p 27.
The respondent worker described feeling “very shaken” and that “nothing that would stop [Mr Baghadi] from coming after [him] and [his] family.”[46] He subsequently changed his name and moved away from Sydney with his partner.
[46] ARD, p 20, [8].
He describes withdrawing from relationships and friendships with old colleagues from fear they would inform Mr Baghadi of his whereabouts. He states being afraid to leave his home, even in his new residence, but is comforted by the fact that the property complex has cameras. When he does leave his home, it is with his partner, and he states that he will look over his shoulder for Mr Baghadi. He recalls feeling as though Mr Baghadi was every person, even on TV, which triggered him.
Since moving away from Sydney, the respondent worker states that he has not seen a doctor as he cannot afford the consultations. He describes his symptoms in detail, including erratic mood; irritation; frustration; upset; depression; sleep disturbance; nightmares; flashbacks; low energy, and lack of motivation, significantly impacting his relationship with his partner.[47] He describes having panic attacks whereby feels as though he is “right back to when [Mr Baghadi] was pursuing me”. He says this caused his mind to shut down.[48]
[47] ARD, pp 20–22, [12]–[23].
[48] ARD, p 21, [16].
At [24], Mr Sfuncia reflects on the impact of his employment on his condition:
“I have lost a lot of confidence in myself and feel very hopeless. I often think about how none of this was my fault and how I was just going to work and trying to do my job. I struggle to fathom how this has happened to me and how my life has become like this.”[49]
Statement of Tareese Evans dated 26 November 2020[50]
[49] ARD, p 22.
[50] This statement is titled “Supplementary Statement” however Ms Evans’ initial statement is not in evidence.
Ms Evans is the respondent worker’s de-facto partner, and states that she observed the respondent worker’s mental deterioration following Mr Baghadi’s harassment, which also impacted her own mental health. She states that Mr Baghadi’s “continual pursuit of [the respondent worker] has significantly impacted our lives and turned it upside down” and that “we are both constantly looking over our shoulder for [Mr Baghadi]. We are unsure as to when our lives will return to normal and we will feel safe again”.[51]
[51] ARD, pp 29–30.
At [8], she states that the respondent worker reflects on the impact this has had on him:
“I find that Greg talks a lot about [Mr Baghadi] and often wonders why this has happened to him and why not the other guys in his team at work. He seems really disappointed as to how things turned out and how his life has been set back.”[52]
[52] ARD, p 29.
Statements from Waverley Council employees
In response to Mr Sfuncia’s workers compensation claim, statements were obtained from Waverley Council employees and provided in Worksite Investigation reports dated 31 May 2015, 14 June 2018 and 13 September 2018. As none of the statements are paragraphed, all references are limited to page numbers.
Statement of Vicki Parry dated 17 May 2018
Vicki Parry is the Human Resources “Business Partner” who was involved in Mr Sfuncia’s application for promotion for Senior Open Spaces Officer (SOSO).[53]
[53] Reply, pp 1–6.
Ms Parry states that the respondent worker appeared to be performing well. She states that she understood that the respondent worker was already acting in the role of SOSO. She states that she had not received feedback to indicate there were any issues with his work in this role. In fact, she confirms that Mr Francis recommended that the respondent worker’s pay be elevated following his annual performance review, which indicated to her that Mr Francis also did not have any issues with his performance.
Notwithstanding these assertions, Ms Parry states that all applicants, including the respondent worker, were unsuccessful. She states that she provided the respondent worker with feedback following his interview in what she describes to be an open and friendly discussion. She does not, however, provide details of this discussion, nor does she describe the feedback she provided him.
In regard to the respondent worker’s allegation that he was mistreated by Mr Francis, Ms Parry states that she never observed any bullying or intimidating behaviour, nor did she receive complaints in this regard.
Ms Parry denies that she informed the respondent worker that he would not progress further within the organisation.
Statements of Jamie Francis dated 17 May 2018 and 12 September 2018
Overall, Mr Francis regarded his working relationship with the respondent worker as “fine”.[54] He states that the respondent worker never raised a concern about their working relationship or accused him of bullying or intimidation.[55] He describes the respondent worker as someone who said yes to work, who was never negative, and had a “can do attitude”.[56] He states he did not notice a change in the respondent worker’s demeanour during the investigation into Mr Baghadi or following Mr Baghadi’s termination.[57]
[54] Reply, p 8.
[55] Reply, pp 10–11.
[56] Reply, p 10.
[57] Reply, p 9.
Mr Francis denies divulging the respondent worker’s address to others, although confirms that there was an occasion when he asked employees to stop contacting him in the early hours of the morning and joked that he had everyone’s phone numbers, so could call them back outside of work hours.[58] This was said after the respondent worker had disclosed to him that Mr Baghadi had contacted him and vandalised his home. An employee who was present at this discussion stated “someone made a comment about having records and knowing everyone’s contact numbers or similar. What I remember is that everyone laughed at the comment.”[59] Mr Francis’ comment was reported to his manager and he was informally spoken to about the context of his comment.[60]
[58] Reply, p 12.
[59] Statement of Jacob Gousteras, Reply, pp 18–20.
[60] Reply, p 99.
Mr Francis denies that his allocation of work to the respondent worker whilst he was in the acting SOSO role was unfair. In his supplementary statement, Mr Francis clarifies that he would set the run schedule, and it was the respondent worker’s duty to organise how to action it with his team. Mr Francis states that he was required to respond to concerns from the respondent worker’s team that the respondent worker was not present, however it came to light that the respondent worker had in fact taken it upon himself to finish work the team had not been able to complete, and perform unscheduled work without informing them. Mr Francis states that he had to speak to the respondent worker about his role as team leader, which is to provide direction. It was not expected that they finish everything in the schedule. Mr Francis denies laughing at Mr Sfuncia or stating that the schedule “is the way it is”.[61]
[61] Reply, p 97.
Mr Francis denies that he intentionally withheld the respondent worker’s SAPA, which took place in late 2017. Although he recommended an upgrade in the respondent worker’s role by two levels, he explained that it would take time to be approved as it required processing by his manager, the Executive Manager, and Director. It ultimately came to light that there was an administrative issue which had delayed the increase which was processed in April 2018.[62]
[62] Reply, p 11.
In regard to the respondent worker’s application for promotion, Mr Francis states that he was on the interview panel. He states that “it was decided that all four applicants would be interviewed for career development with nobody successful in appointment of this role”.[63]
[63] Reply, p 99.
In his initial statement, Mr Francis says that an issue of concern was the respondent worker’s sick leave record, and that they had asked him to improve his absenteeism. He states the respondent worker had been taking time off to care for his elderly parents but informed them that he would be organising a carer.
In his supplementary statement, Mr Francis clarifies that whilst the respondent worker may have initially been encouraged for the role of SOSO, the role required a Certificate III in horticulture and qualifications frontline management, or experience in leadership. The respondent worker did not have these qualifications and had minimal leadership experience from his time acting as the SOSO.[64]
[64] Reply, p 99.
Contrary to the respondent worker’s belief, Mr Francis denies that any SAPA’s were used to assess the applicants for the SOSO position. Mr Francis states that they are not used by interview panels, and that any enquiry regarding a SAPA is made with the applicant’s supervisor. As he was on the interview panel and was the respondent worker’s supervisor, this could not occur.[65]
[65] Reply, pp 99-100.
Mr Francis confirms that the respondent worker attended work sporadically in the week after he was informed that his application was unsuccessful. On 15 March 2018, Mr Francis received a text message from the respondent worker advising that he would be off on “stress leave”.[66] Mr Francis says this is the first time Mr Sfuncia had mentioned “stress”, and that it “shocked” him.[67]
[66] Reply, p 16, with a copy of these text messages at Reply, p 59.
[67] Reply, p 17.
Position description
The position description for SOSO does not specify a Certificate III in horticulture as an essential requirement. What is considered essential are “Qualifications or extensive relevant experience in Frontline Management or similar People Management discipline”. “Horticulture qualifications” are merely noted as “desirable”.[68]
[68] Reply, p 111.
Email summarising a case conference on 3 July 2018
During a medical case conference between the respondent worker, Dr Chaplin and Waverley Council, the respondent worker reported that he was “bullied and harassed by his supervisors by [Mr Baghadi], [Mr Woodgate, a team leader with the Council], [Mr Francis] and [Ms Parry] … and through no fault of his own he was left with panic attacks and depression …”. When asked if he was willing to return to work, he said “if he was to come back it would be as the team leader only, he should have been given the job, he was very angry that he didn’t get the team leader job and said he is entitled to take his sick leave”, however he felt unsafe working in “any area of council cause [sic] everyone knows what has happened to him”.[69]
[69] ARD, p 46.
Letter to the respondent worker dated 16 August 2018
Waverley Council wrote to the respondent worker in response to complaints he made against Ms Parry and Mr Francis. The letter provides some clarification in relation to Ms Parry’s feedback to the worker regarding his application for promotion, stating:
“She did say to you that your poor sick leave record was a factor but not the single factor for your unsuccessful bid to be promoted. She did not say that that your unsuccessful bid for promotion was due to you not holding a business qualification.”[70]
[70] AALD, p 118. This letter refers to the promotion title as “Senior Public Spaces Officer”. The evidence before me, including the statements of Ms Parry and Mr Francis refer to the position of “Senior Open Spaces Officer” as the position the respondent worker applied for, and received feedback on. I take this letter to address that same feedback. No issue has been taken by either party on this matter.
I consider this to be of interest, as the appellant’s submissions on appeal are that the primary reason for the respondent worker’s failure to obtain a promotion was his lack of qualification. Notably, this letter, and the statements of Ms Parry and Mr Francis fail to confirm that the respondent worker was informed of this reason at the time feedback was provided to him in respect of his application.
The letter also confirms that Mr Francis was “counselled” for the comment made regarding his access to employee records.
Certificates of capacity
Dr Chaplin commenced issuing the worker with SIRA certificates of capacity from 9 April 2018.[71] In the initial SIRA certificate of capacity of this date, Dr Chaplin diagnosed the respondent worker with Adjustment Disorder with Mixed Anxiety and Depression arising from a date of injury of 27 February 2018. Dr Chaplin’s subsequent certificates provided the same diagnosis and continued to certify the respondent as unfit for work.
[71] ARD, p 129.
The SIRA certificates of capacity provide the following mechanism of injury:
“Work place intimidation and harassment. First by his team leader who was subsequently investigated and fired. Then ongoing bullying and intimidation by his supervisor. Culminated on the 27/2/18 when the HR manager delivered the results of the panel interview for position of team leader which he had been acting as for the past 6 months saying ‘that he is not going any further in this company’”.[72]
[72] ARD, p 114-131.
Clinical records of Dr Andrew Chaplin, general practitioner
The clinical records date from 12 April 2002 to 26 March 2019 and reveal that Mr Sfuncia began to receive treatment for his psychological condition from 12 March 2018. There are no entries relating to a psychological condition prior to this. The respondent worker visited Dr Chaplin’s rooms several times per month, and at each visit, Dr Chaplin recorded a continuing mental symptomology arising from the behaviour of Mr Baghadi as well as the various workplace issues. Dr Chaplin referred the respondent worker to Mr Muhamad Ziedni, psychologist, and prescribed him with psychiatric medication, and issued workers compensation certificates of capacity from 9 April 2018.
The following entries provide a contemporaneous record of the complaints made by the respondent worker as to the events causing his psychological injury. I have retained the spelling and punctuation as per the original.
At the respondent worker’s visit to Dr Chaplin’s rooms on 12 March 2018, the doctor recorded:
“work place harassment last few months
boss who was harassing him has been fired.
subsequently went for job/promotion in the company which he didn’t get. feels he has been unfairly treated …
Feeling very stressed. not sleeping well. anxious. sweating.
didn’t go to work from last Tuesday when found out about the job.considering work cover”.[73]
[73] ARD, p 111.
On 26 April 2018, Dr Chaplin prescribed the respondent worker with Efexor, noting increasing symptoms including anxiety and panic attacks as a result of:
“ex boss who has AVO out against been driving by house and parking up the street outside 100m as set by AVO
has contacted police …
awaiting to see lawyer who he wants with him prior to work place mediation
continues to see ziedni weekly
has discussed with him regarding medication and thinks it would be a good idea.was on Prosac many years ago didn’t think it helped …”[74]
[74] ARD, p 110.
On 6 May 2018, the respondent was noted to be experiencing “ongoing panic attacks. last after received letter saying he had to go back to work and symptoms lasted 2 days.”[75]
[75] ARD, p 109.
On 5 June 2018, Dr Chaplin increased the respondent worker’s Efexor prescription, noting:
“went to court last week and ex boss who had bullied him then stalked him and vandalised his house and he had a AVO against was found guilty.
Insurance company have stopped paying him
plaanning with his lawyer to sue the counsil …”[76]
[76] ARD, p 108.
On 3 July 2018, Dr Chaplin partook in a medical case conference with the respondent worker and Jackie Fletcher of the Council, noting:
“Counsil willing keen for gregorio to come back to work, could be in another section
gregorio not keen to come back in any role at the moment due to unresolved issues.
Original bully has been charged and on good behaviour bond
there were other people involved as weel
he doesn’t want what happened to him to happen to anyone else …”[77]
[77] ARD, p 107.
On 20 September 2018, Dr Chaplin partook in a case conference with a rehabilitation provider and noted that the respondent worker would not be returning to work at the Council as one of the “people involved” was still working there and would be his supervisor. This appears to be a reference to Mr Jamie Francis.[78]
[78] ARD, pp 106–107.
On Tuesday 23 October 2018, it is recorded that the respondent worker was not doing well and had stopped antidepressants as he “couldn’t see the point once work cover was decline.” The doctor recommenced his prescription of Efexor.[79]
[79] ARD, p 106.
The last entry is on 20 March 2019, wherein it is noted the respondent worker was leaving Sydney. Dr Chaplin records that the worker had been terminated from employment and was commencing unfair dismissal proceedings as well as contesting his workers compensation claim.[80]
[80] ARD, p 105.
Clinical records of Muhamad Ziedni, psychologist
The only document from Mr Ziedni’s clinic is a “Mood Assessment Program” report conducted by the Black Dog Institute dated 17 May 2018. The report records the respondent worker’s self-assessed symptoms for psychological management, in which he listed several “stressful events during the last 12 months” as having “significant” impact on his depressive episode, namely his involvement in a serious dispute; legal problems; unemployment, and physical assault/abuse.[81]
[81] ARD, p 99.
Medical reports of Dr Bradley Ng, consultant psychiatrist
Dr Ng was qualified by StateCover on behalf of the appellant employer and has provided three independent medico-legal reports.
Report dated 21 June 2018
Dr Ng takes a consistent history of the events leading to the worker’s cessation of employment. Dr Ng notes that he had been “feeling down already” with the incidents with Mr Baghadi increasing his depression, and that the unsuccessful promotion led to “an even bigger spiral”.[82]
[82] Reply, pp 120.
Dr Ng takes a detailed account of the respondent worker’s symptomology and mental state, and notes that he has no past psychiatric history of note. Dr Ng diagnoses the worker with adjustment disorder with depressed mood and anxiety of mild to moderate severity.
When specifically questioned as to the factors contributing to the development of the respondent worker’s condition, Dr Ng opines that these include his increasing suspicion; the perceived interpersonal conflict with work colleagues; his deteriorating relationship with Mr Francis; increasing workplace pressures; lack of promotion, and specifically that “the matter with regards to Mr [Baghadi] certainly did not help”. Dr Ng proceeds to opine that the respondent worker’s condition was “mostly due” to the circumstances surrounding the promotion as it was the most “proximal event” to the cessation of his employment.[83]
[83] Reply, pp 123–124.
Report dated 3 September 2019
Dr Ng re-examined the respondent worker. The doctor confirms the history previously provided by the respondent worker, and records that since his last examination, the respondent worker had moved away from Sydney. In this report, Dr Ng makes reference to a past relationship breakdown that may have caused transient depression or anxiety, but this was “short lived” and insignificant.
Dr Ng was afforded the opportunity to review the clinical records of Dr Chaplin, and evidentiary statements provided by the appellant employer. Under the heading “Summary and Assessment”, the doctor opines that “the actual ‘cause’ of this work injury is still in dispute but [his] allegations have been consistent”. Notwithstanding this, the doctor considered that some of the respondent worker’s history appeared inconsistent, such as the assertion that his move from Sydney was following vandalism of his car. The doctor also found it puzzling that the respondent worker had not sought psychiatric treatment since moving from Sydney. Noting this, whilst Dr Ng maintained the diagnosis of adjustment disorder with depressed mood, the doctor queried the reliability of the respondent worker’s reported level of functioning and symptomology.[84]
[84] Reply, pp 134–135.
At question 8, Dr Ng is asked to list the factors that contributed to the respondent worker’s psychological injury, to which he responds that the “most important” is Mr Baghadi’s harassment, and that “slightly separate from these issues is [his] unsuccessful application for team leader”.[85]
[85] Reply, p 137.
At question 9, Dr Ng is presented with a list of “factual disputes, and asserted non-work factors” and is asked to provide an opinion on the main contributing factor. Dr Ng responds that all disputed factors were being maintained by the respondent worker, although should the Council’s evidence be preferred, the only remaining factor which is not disputed is the treatment from Mr Baghadi both prior to and following his termination. While the doctor provides his views on this, he appropriately concludes that the employer’s liability for Mr Baghadi’s behaviour is a legal matter.[86]
[86] Reply, p 138–139.
When asked to revisit his opinion on the whole and predominant cause of the respondent worker’s injury at question 10, Dr Ng opines that he has no doubt that Mr Baghadi’s conduct toward the respondent worker played a part, although the “proximal precipitating factors” were his difficulties with the promotion and with Mr Francis.[87]
[87] Reply, p 139–140.
Supplementary report dated 28 October 2019
In this report, the doctor was again presented with a list of disputed matters and “matters which occurred outside of work”, and asked to provide an opinion on the main contributing factor to the respondent worker’s injury. These matters listed included Mr Baghadi’s conduct following his termination; the suspicion that Mr Francis disclosed his address; that Mr Francis retained employee information; that Mr Francis put pressure on him in the allocation of work; that his SAPA had not been processed and impacted his interview for team leader; and that Ms Parry advised he would not progress in the organisation. Dr Ng provides an opinion that all of these factors (with the exception of Mr Baghadi’s conduct following his termination) were work-related, and that the respondent worker claimed that his employment was the “main and only” contributing factor to his condition.[88]
[88] Reply, pp 144–145.
Dr Ng was asked to clarify his opinion of 3 September 2019 with respect to the whole or predominant cause of the respondent worker’s injury. In answering this question, Dr Ng considers the respondent worker’s history and timeline of complaints to Dr Chaplin. Dr Ng observes that the respondent worker was examined by Dr Chaplin in January 2018, being a time when he would have experienced difficulties with Mr Baghadi but was silent on any complaints until 12 March 2018. Dr Ng notes that this consultation is in proximity to his unsuccessful promotion and the cessation of his employment. In considering the lack of consultations mentioning Mr Baghadi prior to this, Dr Ng provides the opinion that the promotion “appeared to be the major factor”, and was the predominant cause of the respondent worker’s psychological injury.[89]
[89] Reply, pp 145–146.
Medical reports of Associate Professor Michael Robertson, consultant psychiatrist
Associate Professor Michael Robertson was qualified by the respondent worker’s solicitors. The doctor provided two medical reports dated 18 April 2019 and 7 May 2020.
Initial medical report dated 18 April 2019
In this report, A/Prof Robertson records a consistent history of what he regards to be Mr Baghadi’s “quite outrageous” behaviour toward the respondent worker, which continued after Mr Baghadi’s termination. The Associate Professor notes the respondent worker’s perception that Mr Francis “seemed to take little interest in the problem” as he believed him and Mr Baghadi to be “a clique”. The respondent worker tells A/Prof Robertson about Mr Francis’ comment regarding employee records, stating that he recalled him to say “everybody’s information is on the work computer and [Mr Baghadi] could come around any time”, which he perceived to be an attempt to antagonise him or cause him distress.[90]
[90] ARD, pp 76–77.
A/Prof Robertson records that the respondent worker believed that Mr Francis “seemed to sabotage his work progression” by delaying his SAPA which contributed to the inability to formalise his role as Senior Open Spaces Officer, despite believing that he was “in the running” for the position. The Associate Professor records that the respondent worker was told by HR that he would not progress any further due to his SAPA. The Associate Professor states that his “use of sick leave was also criticised – because of his declining mental state and the need to care for his elderly parents, Mr Sfuncia had taken periods of sick leave as per his entitlements”.[91]
[91] ARD, p 77.
Notably, A/Prof Robertson records that the respondent worker believed these matters to be “payback for [Mr Baghadi]”.[92]
[92] ARD, p 77.
A/Prof Robertson conducted a mental state examination and took a detailed account of the respondent worker’s symptoms, which notably includes being triggered into “intense anxiety when he sees people who are physically reminiscent of [Mr Baghadi]”.[93]
[93] ARD, p 78.
In terms of the respondent worker’s personal history, A/Prof Robertson notes that the respondent worker may have developed reactive depression after a relationship breakdown in 1999, however, the “episode seemed to be self-limiting”.[94] The respondent worker described his health being otherwise well, with no family history of psychiatric disorder and a generally happy upbringing.
[94] ARD, p 79.
At p 80 of the ARD, A/Prof Roberson provides the opinion:
“[The respondent worker] has been victim to the predatory pattern of abuse by a highly disturbed individual whose behaviour was the subject of criminal charges. While the latter part of the harassment occurred when the perpetrator was no longer employed with the council, [the respondent worker] met this individual qua an employee of Waverley Council. Moreover, the perpetrator’s behaviour was not adequately addressed at that time until it had escalated and become a police matter.”
The Associate Professor diagnoses the respondent worker with chronic adjustment disorder with anxiety and depressed mood, with “cross-cutting features of PTSD”, the primary cause of which being:
“The targeted criminal behaviour of a co-worker, which then spilled over after the co-worker was dismissed ... The failure of the employer to mitigate this behaviour (at least per [the respondent worker’s] account) was also a significant factor in the onset of his psychological injury, as was the refusal of his line manager to provide him with adequate opportunities to progress his career. I disagree with Dr Ng’s opinion that [the respondent worker’s] injury arose as the result of failure to progress his career.”[95]
[95] ARD, p 81.
A/Prof Robertson takes objection to Dr Ng’s opinion as to the cause of the respondent worker’s condition, stating that Dr Ng took a “very narrow view of the situation and seems to have completely dismissed the significant contribution of the criminal behaviour of [Mr Baghadi].” A/Prof Robertson considers that Dr Ng’s conclusion that the respondent worker’s injury was caused by failure to progress in his career are a “non-sequitur”, noting that he felt that a “clique” existed in the Council and that his career progress may have been thwarted by Mr Francis delaying his SAPA which was integral to his career progression.[96]
[96] ARD, p 80.
Supplementary report dated 7 May 2020
In this report, A/Prof Robertson addresses the doubts raised by Dr Ng regarding the respondent worker’s presentation, stating that Dr Ng erred in “confounding” some inconsistencies with the view that the respondent worker was an “unreliable historian”, therefore suggesting that his reported symptomology and function were inaccurate. To this, the Associate Professor asserts:
“While accurate sequencing of dates, times and other specifics may challenge some aspects of liability of [the respondent worker’s] narrative of workplace difficulties, they do not necessarily change the overall import of the history or the reliability of his subjective account of the evolution of his psychological injury or its [e]ffects on his day to day functioning - a person’s capacity to report on this would seem to be a far more salient and legitimate process than a detailed and accurate chronology of the minutiae of a workplace difficulty …
I do not share Dr Ng’s concerns that Mr Sfuncia was an unreliable historian. I certainly saw no evidence of dissimulation, feigning or deceitfulness …”.[97]
[97] ARD, p 87.
The Associate Professor notes that whilst there are differences between their opinions, they both agree that the respondent worker suffers from a psychological injury, and that the “critical” issue of the employer’s liability for Mr Baghadi’s behaviour is a legal matter. [98]
[98] ARD, p 88.
THE MEMBER’S REASONS
The Member determined that the respondent worker suffered a psychological injury as result of his exposure to hostile events and/or his perception of real hostile events in the course of his employment with Waverley Council between 22 November 2016 and 7 February 2018.[99]
[99] Certificate of Determination, Finding [1].
In coming to this determination, the Member noted that the evidence included several instances where the respondent worker was exposed to “unsavoury and/or threatening” conduct “in the course of his duties as well as outside his employment”.[100]
[100] Sfuncia v Waverly Council [2021] NSWPIC 20 (reasons), [9].
Firstly, the Member considered there to be no serious dispute that the incidents involving Mr Baghadi whilst he was still employed by Waverley City Council occurred, however the employer maintained that they were not causative of the respondent worker’s condition because he remained at work. In this regard, the Member observed that the medical opinions of Drs Robertson and Ng were that the respondent worker had experienced interpersonal issues with Mr Baghadi before he was terminated.
The Member next referred to Mr Baghadi’s behaviour toward the respondent worker after he ceased employment with Waverley Council. The Member referred to the employer’s submission that an “aggravation of a disease” required the aggravation to have occurred in the course of employment under s 4(b)(ii) (emphasis added) but this could not be satisfied as Mr Baghadi’s conduct occurred outside the course of his employment. The Member held that this approach was misconstrued. Whilst it is clear the events concerning Mr Baghadi after his termination did not occur in the course of Mr Baghadi’s employment, the relevant test is “whether there is such a connection between the conduct complained of and the [respondent worker’s] employment that it may nonetheless be said that the [respondent worker’s] aggravation (etc) of disease occurred in the course of his employment”.[101] (Member’s emphasis)
[101] Reasons, [16].
In considering this, the Member was satisfied that there was a material, common sense connection between Mr Baghadi’s post-employment conduct and its effect on the respondent worker, rendering it to have arisen “in the course of the [respondent worker’s] employment” (Member’s emphasis). The Member held that if not for the respondent worker’s employment, the respondent worker would not have been privy to Mr Baghadi’s conduct at all.[102]
[102] Reasons, [17].
The Member turned to the other causative factors of the respondent worker’s injury. The Member determined that the respondent worker’s perception of a real discussion with Mr Francis regarding access to personal information, for which Mr Francis required counselling, had the requisite effect on the respondent worker’s psyche within the circumstances contemplated by Attorney General’s Department v K.[103] The Member made a similar finding in respect of the respondent worker’s perception that he was being unfairly treated because of the delay in his pay increase.
[103] [2010] NSWWCCPD 76.
Finally, the Member was not satisfied that the employer established a s 11A(1) defence. The Member held that Dr Ng’s opinion of 28 October 2019 attributed the predominant cause of the worker’s psychological injury to the lack of promotion and difficulties with Mr Baghadi. The Member considered that this was supported by A/Prof Robertson. The Member determined that the appellant employer’s actions in respect of denying the promotion were unreasonable, specifically their reliance on the respondent worker’s sick leave absences as a reason to deny the opportunity.
The Member concludes that in a “common sense fashion, several of the episodes of exposure to which I have referred are the predominant cause of the [respondent worker’s] psychological condition”, and not just the behaviour of Mr Baghadi after his termination or the matters relating to promotion.[104]
[104] Reasons, [22].
The Certificate of Determination issued on 12 March 2021 records the determinations of the Commission as follows:
“1. The [respondent worker] in the course of his employment with the [appellant employer] between 22 November 2016 and 7 February 2018 suffered psychological injury which results from his exposure to hostile events and/or his perception of real hostile events.
2. The [appellant employer’s] section 11A defence is not established.
3. The [respondent worker] is entitled to awards as follows:
(a)In respect of weekly payments of compensation from 12 March 2018 pursuant to section 36 of the Workers Compensation Act 1987 (1987 Act) for a period of 13 weeks.
(b)Thereafter pursuant to section 37 of the 1987 Act to date and continuing
with the relevant pre-injury average weekly earnings figure being $968.75 and with the respondent to receive credit for payments made.
4. A general order is made in favour of the [respondent worker] in respect of section 60 expenses.
5. The matter is remitted to the President for referral to a Medical Assessor to determine the extent of the [respondent worker’s] whole person impairment, if any, which results from injury deemed to have occurred on 12 March 2018.
6. The Delegate of the President is requested to place before the Medical Assessor a copy of the Application filed 22 December 2020 and attachments, a copy of the Reply filed 22 January 2021 and attachments, a copy of the Application to Admit Late documents and a copy of these Reasons for Decision.
7. Liberty is granted to the parties to apply by email to the Commission for further directions concerning the orders in 3. [a]bove, if required.”
The appellant appeals against these orders.
GROUNDS OF APPEAL
The appellant relies upon the following grounds of appeal:
Ground One: The Member erred in law by applying the incorrect test under s 4(b) of the 1987 Act to determine whether the respondent suffered disease injury in the course of his employment.
Ground Two: The Member erred in fact and law in proceeding on the basis that the relevant test under s 4(b) of the 1987 Act was whether there had been aggravation etc of disease.
Ground Three: The Member erred in fact and law in holding that Dr Ng’s opinion was that the respondent’s condition was predominantly caused by his lack of promotion and his difficulties with Mr Baghadi.
Ground Four: The Member erred in fact and discretion in holding that the failure of the respondent to obtain promotion was not the predominant cause of his psychological condition.
LEGISLATION
Section 4(b) of the 1987 Act provides:
“In this Act—
injury—
…
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
…”
Section 11A of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(5) (Repealed)
(6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as “stress” or “stress condition”.
(8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)—
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
For the appellant to succeed, error must be established. Section 352(5) of the 1998 Act provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The nature of an appeal has been reviewed in various decisions. Perhaps the most well-known and uncontroversial description of the appellate task is described by Roche DP in Raulston v Toll Pty Ltd.[105] I refer to and rely on that decision and in particular paragraph [19].
SUBMISSIONS
[105] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston), [17]–[30].
Appellant’s submissions
I will deal with the details of each appeal point in the discussion below. In broad terms, the appellant alleges that the Member made various errors in fact, law and exercise of discretion, namely that:
(a) In determining that the respondent worker’s injury arose in the course of his employment pursuant to s 4(b) of the 1987 Act, the Member used the wrong legal test by applying the test for injury “arising out of employment”, and therefore erred in finding a s 4(b) injury (emphasis added). The appellant employer relies on Henderson v Commissioner of Railways(WA)[106] which poses the question of whether a worker was doing “something reasonably required, expected or authorised to do in order to carry out his actual duties” and Scharrer v The Redrock Company Pty Ltd[107] in which the Court of Appeal said that the course of employment is ordinarily perceived as the time during which a person is at work, engaged in their work or something incidental to it. The appellant submits that for injury to “arise out of employment”, there must be an assessment of the causal relationship between employment and injury and refers to Badawi v Nexon Asia Pacific Pty Ltd[108].[109]
(b) It was incorrect for the Member to consider whether the respondent worker had suffered from an aggravation, acceleration, exacerbation or deterioration of his condition under s 4(b)(ii) of the 1987 Act, in the absence of evidence that the respondent worker suffered from a pre-existing psychological condition.[110]
(c) The Member incorrectly held that Dr Ng’s opinion was that the respondent worker’s condition was caused by his failure to obtain a promotion and difficulties with Mr Baghadi (emphasis added).[111]
(d) The Member failed to consider relevant matters, and considered irrelevant matters when determining the s 11A(1) defence.[112]
[106] (1937) 58 CLR 281.
[107] [2010] NSWCA 365.
[108] [2009] NSWCA 324.
[109] Appellant’s submissions, [16]–[23].
[110] Appellant’s submissions, [24]–[28].
[111] Appellant’s submissions, [29]–[31].
[112] Appellant’s submissions, [32]–[36].
Respondent’s submissions
The respondent submits that the events which were causative of the respondent worker’s psychological condition included Mr Baghadi’s behaviour both prior to and following his dismissal; the respondent worker’s failure to obtain a promotion; the respondent worker’s perception of mistreatment following the delay in receiving a pay increase, and his perception of mistreatment derived from the suspicion that Mr Francis provided Mr Baghadi with his home address.[113]
[113] Respondent’s submissions, [1]–[2].
With the exception of Mr Baghadi’s behaviour following his dismissal, it is submitted that these causative factors arose “in the course of employment”. The respondent submits that Mr Baghadi’s behaviour following his dismissal arose “out of” of the respondent worker’s employment, and that he does not rely on the Member’s finding this this behaviour arose “in the course of” the respondent worker’s employment. The respondent also does not rely on the Member’s finding that the respondent worker sustained injury in the nature of the aggravation of a disease, although he submits that the reference to an aggravation was an “inconsequential anomaly” which has no material bearing on the substance of the decision.[114]
[114] Respondent’s submissions, [11]–[15].
The respondent submits that the Member correctly recorded the “essence” of Dr Ng’s opinion that numerous factors were causative of the respondent worker’s injury, in addition to the promotion.[115]
[115] Respondent’s submissions, [16]–[20].
The respondent observes that the Member did not confine his finding of injury to the effects of Mr Baghadi’s conduct. While it was open to the Member to find that the evidence did not establish that the predominant cause of the respondent worker’s injury was the failure to promote him, the Member also considered that the employer was unreasonable in referring to his sick leave as the reason for this failure.[116] Further, it is submitted that if it was essential for the respondent worker to hold a Certificate III in horticulture or a qualification in frontline management, it was unreasonable to subject him to the process for a promotion for which he was ineligible. It is submitted that the employer failed to demonstrate how its decision regarding the promotion was reasonable, and that the process and communication of the outcome were unreasonable.[117]
[116] Respondent’s submissions, [7]–[8].
[117] Respondent’s submissions, [21]–[24].
DISCUSSION
Before turning to a consideration of the four appeal points, it is timely to set out the matters which were not issues of controversy before the Member. These matters have not been disputed by the parties. These matters are:
(a) Mr Baghadi was employed by Waverley Council as the respondent worker’s team leader.
(b) Whilst Mr Baghadi was employed by Waverley Council, he harassed and intimidated the respondent worker in the course of his employment on 29 March 2017, 24 May 2017 and 27 June 2017. As a result, the respondent worker and other employees complained to the appellant employer about Mr Baghadi’s behaviour. This was investigated and resulted in findings of misconduct.
(c) Mr Baghadi’s employment was ultimately terminated by Waverley Council in late 2017 as a result of his behaviour.
(d) Subsequently, Mr Baghadi continued a course of intimidatory behaviour directed at the respondent worker, including sending him disparaging text messages and going to his home with a letter threatening violence. As a result, Mr Baghadi was criminally charged and an AVO was granted restricting Mr Baghadi from contacting the respondent worker or going within 200 metres of his home and workplace at Waverley Council’s premises.
(e) There is no evidence that Mr Baghadi and the respondent worker were known to each other outside of employment at Waverley Council, nor is there evidence that the incidents between them were of a personal nature. The incidents commenced in the workplace and continued whilst the respondent worker remained in the employ of Waverley Council, notwithstanding Mr Baghadi’s termination.
(f) The respondent worker first sought medical treatment for his psychological condition on 12 March 2018.
(g) Both Dr Robertson and Dr Ng have diagnosed the respondent worker with adjustment disorder with anxiety and depressed mood.
As to Ground One
The appellant submits that the Member applied the incorrect test for determining causation. Specifically it is submitted that:
“The [appellant] submits the Member incorrectly used the test for determining the causation issue of ‘arising out of employment’, rather than the correct legal test for determining whether injury arose in the course of employment, in assessing liability under section 4 [of the 1987 Act]. Accordingly, the member erred in finding section 4 injury.”[118]
[118] Appellant’s submissions, [19].
At [18] of the appellant’s submissions, the appellant sets out the Member’s reasons at [14]–[17]. I assume that this is the section of the decision in which the appellant alleges that the asserted error was made, given what appears at the appellant’s submissions at [19]. However the appellant’s submission asserts the error without actively engaging with the Member’s reasons to argue how the error has been made out. In reviewing this ground, it appears that the complaint relates to two matters. Firstly, at reasons [15], the Member has said that he would give consideration to cases such as Qantas Airways Limited v Watson (No 2),[119] Nunan v Cockatoo Docks & Engineering Co Ltd [120] and Zinc Corporation v Scarce.[121] These are all cases which deal with the concept of “arising out of employment”. The Member noted this at reasons [15], as well as Mr Barter’s submission (then counsel for the appellant) as to what the correct test was. There is then the Member’s discussion of Mr Baghadi’s post-employment behaviour that was directed towards the respondent worker. It is therefore apparent that these two matters, the reference to consideration being given to the three cases referred to and how the Member dealt with Mr Baghadi’s post-employment conduct that appears to give rise to the error alleged in this ground.
[119] [2010] NSWWCCPD 38.
[120] (1941) 41 SR (NSW) 119.
[121] (1995) 12 NSWCCR 566.
It is apparent from a consideration of the Member’s reasons at [15] that the Member was well aware that injury had to be one which occurred in the course of the respondent worker’s employment with the appellant. This is in the context of a discussion as to Mr Baghadi’s post termination behaviour towards the respondent. As has been described above, as a result of the behaviour Mr Baghadi directed to the respondent and others, the appellant undertook an investigation and subsequently terminated Mr Baghadi’s employment. Mr Baghadi later engaged in grossly intimidatory behaviour directed toward the respondent worker at his home, which on a fair examination of what transpired could be said to be in retribution for the respondent worker and his colleagues making complaints that led to Mr Baghadi’s employment being terminated.
The member correctly differentiated between the position of Mr Baghadi and that of the respondent worker in considering the question as to which person the provisions of s 4(b)(i) are directed to. Clearly and correctly, the Member found that s 4(b)(i) was concerned with the situation of the respondent worker. The fact that Mr Baghadi’s employment had been terminated was part of the factual matrix to be considered with respect to the respondent worker, but this did not automatically exclude those matters from consideration. I am fortified in the view that the Member took of Mr Baghadi’s post-employment behaviour due to the following reasons:
(a) whilst Mr Baghadi was engaged as the respondent worker’s superior, he engaged in conduct of such a quality and severity that led the appellant to terminate his employment;
(b) the respondent worker and others complained to the appellant about Mr Baghadi’s behaviour as they were entitled to do;
(c) at the time of Mr Baghadi’s post-employment behaviour which was directed toward the respondent worker, the respondent worker was still employed by the appellant, and
(d) finally, whilst not determinative, I would note that the terms of the AVO issued against Mr Baghadi covered not only the respondent’s home but also the appellant’s workplace.[122]
[122] ARD, p 35.
I would remark that a consideration of these matters reveals that all of Mr Baghadi’s conduct that was directed towards the respondent worker arose in the course of the respondent worker’s employment and the Member so found. It cannot be said that the post-employment behaviour of Mr Baghadi represented a private quarrel between he and the respondent worker. Viewed correctly, as the Member did, it was a continuation of the behaviour engaged in by Mr Baghadi whilst he was employed by the appellant and could be seen to be the application of retribution for the respondent worker complaining about Mr Baghadi’s behaviour.
It is noteworthy however that the structure of the Member’s reasons was to include a discussion section before setting out the formal findings beneath the heading “Findings”.[123] In the findings section, relevantly the Member found as follows:
“The [respondent worker] in the course of his employment with the [appellant employer] between 22 November 2016 and 7 February 2018 suffered psychological injury which results from his exposure to hostile events and/or his perception of real hostile events.”[124]
[123] Reasons, [23]–[30].
[124] Reasons, [24].
Moreover, in considering these matters, the Member applied, without quoting the case, the common sense test found by Kirby P in Kooragang Cement Pty Ltd v Bates.[125] In many respects the circumstances discussed in Kooragang are analogous to the situation in this case. The Member in this case adopted Kirby P’s reasoning, namely, “what is required is a commonsense evaluation of the causal chain”[126] in discussing Mr Baghadi’s conduct.[127] In this regard, it was open to the Member, properly construing the evidence, to find such a commonsense connection. In particular, the text message which says “it took four of yous to lie pack of dumb idiots”[128] is clearly a reference to the complaints made about Mr Baghadi which led to his termination.
[125] (1994) 35 NSWLR 452 (Kooragang).
[126] Kooragang, 463–464.
[127] Reasons, [17].
[128] ARD, p 23.
This is not the application of the incorrect test. The Member carefully considered the factual evidence, most of which was not in dispute, and reached a view on the facts that the respondent worker had established injury in the course of employment as is required by s 4(b)(i). Clearly causation had to be considered given the contest over events which are said to have occurred outside the course of employment. Notwithstanding the respondent worker’s submissions regarding the actions of Mr Baghadi following dismissal, this matter was correctly dealt with under s 4(b)(i) of the 1987 Act.
It is not a sustainable proposition that the Member applied the incorrect test, namely that of “arising out of employment” when clearly it is evident from the decision that the correct test was applied and was part of the ultimate finding.
Ground One has not been established and is as a result dismissed.
As to Ground Two
The appellant alleges that the Member applied the incorrect test, namely it is submitted that:
“the Member erred in considering whether there was aggravation, acceleration, exacerbation or deterioration of the worker's condition under section 4(b)(ii) [of the 1987 Act] rather than addressing the liability test in section 4(b)(i) [of the 1987 Act].”[129]
[129] Appellant’s submissions, [28].
The appellant asserts there was no evidence that the respondent worker had suffered a pre‑existing psychological condition or disease which had been aggravated by his work.
The evidence in this case is that the respondent worker suffers a psychological condition. It is appropriate to classify psychological conditions as diseases.[130]
[130] Federal Broom Co Pty Ltd v Semlitch [1964] HCA 34; 110 CLR 626, 638.
Section 4(b) refers to two limbs which distinguish between diseases which are contracted during the course of employment on the one hand, and secondly diseases which are aggravated, accelerated, exacerbated or deteriorate by reason of the employment. If the first limb applies, the worker will not previously have suffered from the disease.
There is no evidence in this case that the worker had been suffering from a pre-existing disease which had been made symptomatic by reason of his employment as is contemplated by s 4(b)(ii). The evidence was in fact to the effect that this condition was caused by stressors suffered by the respondent worker in the course of his employment with the appellant.
A/Prof Robertson in his report of 18 April 2019, after having taken a detailed history, found as follows:
“The targeted criminal behaviour of a co-worker, which then spilled over after the co‑worker was dismissed was the primary cause of Mr Sfuncia’s reactive anxiety and mood symptoms.”[131]
[131] ARD, p 81, [3].
And further:
“Apropos of the previous answer, Mr Sfuncia’s adjustment disorder has arisen in the course of his employment.”[132]
[132] ARD, p 81, [4].
The Member in dealing with the evidence noted the appellant’s suggestion at first instance that “because this is an aggravation of disease case, pursuant to section 4(b)(ii) of the 1987 Act the aggravation etc must be in the course of employment so that it is not sufficient that Mr [Baghadi’s] conduct arises out of the employment.”[133]
[133] Reasons, [14].
Whilst this was recorded by the Member as being the appellant’s then submission, the ultimate finding makes it clear that the Member dealt with the matter under s 4(b)(i). At reasons [24], the Member found as follows:
“The [respondent worker] in the course of his employment with the [appellant employer] between 22 November 2016 and 7 February 2018 suffered psychological injury which results from his exposure to hostile events and/or his perception of real hostile events.” (emphasis added)
As is evident, the error that has been alleged did not occur, the Member correctly dealt with the matter under s 4(b)(i).
Ground Two fails.
As to Ground Three
The appellant maintains that the Member did not properly construe Dr Ng’s opinion. The submission is put as follows:
“The Member erred in fact and law in holding that Dr Ng's opinion was that the Respondent’s condition was predominantly caused by his lack of promotion and his difficulties with Mr [Baghadi].”[134]
[134] Appellant’s submissions, [29].
The appellant further alleges that:
“Dr Ng’s opinion was that the Respondent’s condition was predominantly caused by the Respondent's failure to obtain promotion. In finding otherwise there was error of fact and law.”[135]
[135] Appellant’s submissions, [31].
The Member’s finding regarding Dr Ng’s opinion can be simply recounted:
“Dr Ng in his report of 28 October 2019 attributes the [respondent worker’s] psychological issue to have been predominately caused by his lack of promotion and his difficulties with Mr [Baghadi]. Dr Ng does not simply say that lack of promotion was the predominate cause.”[136] (emphasis in original)
[136] Reasons, [21].
In order for this ground to succeed, the appellant must prove that the Member’s evaluation of Dr Ng’s evidence was wrong.[137] In light of the allegations made by the appellant in this ground, it is necessary to examine Dr Ng’s reports to ascertain whether or not his opinion has been correctly construed by the Member.
[137] Raulston.
Dr Ng has supplied three reports dated 21 June 2018 (the first report), 3 September 2019 (the second report) and 28 October 2019 (the third report).
In the first report, Dr Ng records the following history:
“In late 2017, Mr Sfuncia and his colleagues noted that they had a major interpersonal issue with a work colleague, [Mr Baghadi]. There were concerns about the latter’s demeanour and work performance. There was an investigation. The Council terminated Mr [Baghadi’s] employment in late 2017. Mr Sfuncia noted that he was affected by this and was quite distressed about it too because he suspected that there were several employees who were friends of Mr [Baghadi] including his supervisor, Mr Jamie Francis.”[138]
[138] Reply, p 119.
And further:
“Mr Sfuncia noted that his working relationship with some of his colleagues started to deteriorate especially because he had raised issues about Mr [Baghadi] …
Mr Sfuncia was not appealing the decision about the team leader position but he believed there was still an injustice because the sick leave had been counted against him. He noted that he was feeling down already. The incidents with Mr [Baghadi] had increased his depression and then his unsuccessful application for the team leader position led to an even bigger spiral.”[139]
[139] Reply, p 120.
Dr Ng in his summary and assessment then goes on to record the following:
“It would appear that Mr Sfuncia did have a major problem with the behaviour or [sic, of] Mr [Baghadi].[140]
[140] Reply, p 123.
Dr Ng in this report diagnoses Mr Sfuncia as suffering from adjustment disorder with depressed mood and anxiety, currently of mild to moderate severity.[141]
[141] Reply, p 123.
Dr Ng then goes on to list the factors that contributed to the development of the psychological condition,[142] before stating the following:
“In my opinion, the psychological condition, namely Adjustment Disorder, appears to have been mostly due to actions taken by the employer with respect to promotion.”[143] (emphasis added)
[142] Reply, p 124, [6].
[143] Reply, p 124.
In Dr Ng’s second report beneath the heading “Summary and Assessment”, Dr Ng says as follows:
“The actual ‘cause’ of this work injury is still in dispute but Mr Sfuncia's allegations have been consistent. He is of the adamant belief that he was harassed and bullied by Mr [Baghadi] when the latter was an employee and when he was no longer an employee of the Council. There is no dispute about that …
After review of the documentation, my opinion has not changed. I do not doubt that Mr Sfuncia was harassed by Mr [Baghadi] and that was very distressing.”[144]
[144] Reply, p 134.
The doctor then goes on to state that his diagnosis remains the same, an adjustment disorder with depressed mood and anxiety, chronic, moderate to severe.
Beneath the heading “Causation Issues” Dr Ng says as follows, in answer to a question directing the doctor to list each of the factors that he believes have contributed to the development of any possible psychological disorder:
“Mr Sfuncia has had a number of workplace factors that he believed were responsible for his cessation and current psychiatric state. You have already documented them in Q9. The most important one is Mr [Baghadi’s] harassment of Mr Sfuncia in the workplace and then outside of the workplace and many of the other stressors do flow from those issues. Slightly separate from these issues is Mr Sfuncia's unsuccessful application for team leader.”[145] (emphasis added)
[145] Reply, p 137.
Question 9 that Dr Ng is asked to consider is very long and broken down into six constituent parts.[146] In answer to this question, Dr Ng finds as follows:
“The issue that is not in dispute is the harassment from Mr [Baghadi] while he was employed and then once he was outside of employment of the Waverley Council …
I note all the other factors have been maintained by Mr Sfuncia but they have all been disputed by the employer. If one is to assume that the Council’s witnesses’ evidence was to be preferred, then there would be no other factors except Mr Sfuncia's interactions with Mr [Baghadi].”[147] (emphasis added)
[146] Reply, p 138.
[147] Reply, p 139.
Finally, Dr Ng says as follows:
“Therefore, reasonable weight must be given to those factors which are in dispute in Q9. I certainly do not doubt that the effects of Mr [Baghadi] may have played some part in Mr Sfuncia's distress, but the final proximal precipitating factors would appear to be his difficulties with promotion and with Mr Jamie Francis.”[148] (emphasis added)
[148] Reply, p 139.
In Dr Ng’s third report, he is once again directed to the question regarding whether the worker’s psychological injury was predominantly caused by reasonable action taken by the employer with respect to promotion and transfer.[149]
[149] Reply, p 145, question 2.
In response to this question, Dr Ng says “I have contacted you to clarify the factors to consider in this question.”[150] Obviously it is not possible to discern what transpired in this contact, but the doctor then states this:
“Two factors were to be considered, that of the harassment by Mr [Baghadi] towards Mr Sfuncia, and Mr Sfuncia’s disappointment with his unsuccessful promotion.”[151]
[150] Reply, p 145.
[151] Reply, p 145.
Ultimately Dr Ng reaches the following views:
“Therefore, based on objective documentation, one can reach the conclusion that Mr Sfuncia’s psychological injury was predominantly caused by his lack of promotion or transfer when asked to consider these two factors alone, his lack of promotion and the difficulties that Mr Sfuncia previously had with Mr [Baghadi].”[152]
[152] Reply, p 146.
The appellant states that Dr Ng’s opinion was that the respondent’s psychological condition was predominantly caused by his failure to obtain promotion. The member found, at reasons [21], as I have described above, that Dr Ng’s opinion was to the effect that the psychological condition was predominantly caused by the lack of promotion and his difficulties with Mr Baghadi. On any fair reading of the passages that I have extracted above from Dr Ng’s reports, the Member was not in error in his description of Dr Ng’s opinion. As I have set out above from Dr Ng’s report at Reply p 139, Dr Ng did not doubt that Mr Baghadi may have played some part in Mr Sfuncia’s distress. It is quite clear that Dr Ng through his three reports took a detailed history and did not discount the effect that Mr Baghadi’s abhorrent behaviour had upon the respondent worker. Nowhere in Dr Ng’s reports does he discount the stressors introduced by Mr Baghadi. In his first report, Dr Ng thought that Mr Sfuncia’s psychological condition was mostly due to actions taken by the employer with respect to promotion, and in his second report he finds “the final proximal precipitating factors would appear to be his difficulties with promotion and with Mr Jamie Francis.” Neither of these descriptions vis-à-vis promotion satisfy the legal test required for the appellant to make out its s 11A defence. Clearly the appellant was alive to this fact, hence its request for Dr Ng to return to the matter in his third report. It was noteworthy that in the third report, Dr Ng based his opinion that Mr Sfuncia’s psychological injury was predominantly caused by his lack of promotion or transfer upon objective documentation. The documentation referred to is the medical notes from Marrickville Metro Medical Centre which do not record any complaint of psychological symptoms until 12 March 2018, that is, some months after Mr Baghadi’s employment had been terminated by the appellant. The appellant’s argument is that as a result of this gap, the obvious factor in the creation of Mr Sfuncia’s psychological condition is disappointment over his promotion. As I describe in [190] of this decision, the content of medical notes needs to be approached with care and further the absence of complaints should not be treated as dispositive, as Dr Ng has done in his third report. In any event, it is not an accurate summation of Dr Ng’s opinions that the respondent worker’s psychological condition was predominantly caused by his failure to obtain promotion. This is not a fair reading of the doctor’s reports and the Member was not in error to so find. The Member’s summation of Dr Ng’s opinion at reasons [21] was an entirely available reading and construction of the entirety of Dr Ng’s opinions.
Ground Three has not been established and is as a result dismissed.
As to Ground Four
The appellant alleges the following:
“The Member erred in fact and discretion in holding that the failure of the Respondent to obtain promotion was not the predominant cause of his psychological condition.”[153]
[153] Appellant’s submissions, [32].
Additionally, the appellant alleges that the Member failed to consider all relevant matters, and took into account irrelevant matters, in determining whether the appellant had been able to avail itself of the s 11A(1) defence.[154]
[154] Appellant’s submissions, [33].
Correctly, the appellant accepts that it bears the onus of proving the s 11A(1) defence and then proceeds to set out the factual matters that it says satisfies that onus of proof.[155]
[155] Appellant’s submissions, [36].
There are two parts of this appeal ground. The first alleges an error of fact in decision making and the second, and perhaps the more substantial ground advanced, pertains to the submission that the Member’s discretion has miscarried.
Dealing with the submitted error of discretion, such a consideration on appeal is governed by the longstanding authority found in House v The King.[156] In House, the High Court held as follows:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution, for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.”[157]
[156] (1936) 55 CLR 499 (House).
[157] House 505–505.
Ground Four also relies, in part, upon Grounds One, Two and Three.[158] In light of my dismissal of Grounds One, Two and Three for the reasons I have expressed, this submission is accordingly not persuasive.
[158] Appellant’s submissions, [36(e)].
The appellant’s approach to Ground Four is to set out in paragraph [34(a)–(p)] of its submissions. Various factual matters which the appellant relies upon in supporting the submissions are then made at [36(a)–(h)].
Each of the submissions in paragraph [36] alleges error. Given this is the format of the appellant’s submissions, I will deal with each of the subparagraphs of [36].
As to [36(a)]
The appellant submits that Mr Baghadi’s post-employment activities did not occur in the course of the respondent’s employment with the appellant and therefore cannot be taken into account in the assessment of compensation liability. Whether or not Mr Baghadi’s post-termination conduct was or was not in the course of the respondent worker’s employment involves a consideration of the factual matrix and the Member reaching a conclusion of law with respect to that behaviour. The appellant though has approached this matter as if it was unarguable that Mr Baghadi’s post-employment conduct could not be considered. The Member approached this consideration consistently with the dicta of Kirby P as set out in Kooragang (referred to with respect to Ground One above). The appellant has not taken me to any argument as to why it was wrong to apply Kooragang as the Member plainly did, or that the application of that authority was done incorrectly. Clearly the offensive behaviour directed towards the worker at his home was after Mr Baghadi’s employment had been terminated and this matter was not in contest, nor was the nature and quality of the behaviour which led to the involvement of the police. The question was whether this behaviour could be linked to the respondent worker’s employment and this was a question that the Member answered in the affirmative.
The appellant has not pointed to any error in either fact finding or the exercise of the Member’s discretion in reaching this finding. Rather, the approach has been to state the facts which were not in dispute and then to simply assert the legal conclusion which is said to flow from those facts. This approach does not identify relevant error. The error set out in this subparagraph has not been established.
As to [36(b)]
This subparagraph is a derivation of the submission found in [36(a)], namely, that the onset of symptoms was not manifest until March 2018, months after Mr Baghadi’s employment had been terminated. In some respects this submission is not to the point. Both A/Prof Robertson and Dr Ng accept that the respondent worker has a psychological condition, but the doctors diverge as to its cause. Both doctors do record the respondent worker suffering distress as a result of Mr Baghadi’s behaviour while he was still employed by the appellant. The fact that there was no diagnosis until later is not determinative in and of itself of the Member having engaged in any error of reasoning, fact-finding or discretion. No error has been identified.
As to [36(c)]
Under this paragraph, the appellant alleges that there were significant factual disputes which were not considered by the Member.
The approach to fact finding in the Commission commences with a consideration of s 294(2) of the 1998 Act. Snell ADP (as he then was) made the following remarks in Singh v FTW Products Pty Ltd:[159]
“An Arbitrator’s reasons should be read as a whole and it is not for a Presidential Member on review to comb through the Arbitrator’s findings and reasons in search of error (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 444; Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).”[160]
[159] [2007] NSWWCCPD 230 (Singh).
[160] Singh, [63].
In Soulemezis v Dudley (Holdings) Pty Ltd[161] Mahoney J remarked that a Judge is not required to make findings with respect to every fact leading to a conclusion.
[161] (1987) 10 NSWLR 247
Whilst the appellant has not identified under this subparagraph the factual disputes which were not considered by the Member, a consideration of the contents of [34] of the appellant’s submissions and the Member’s reasons would relate to the appellant’s witness’s evidence, Ms Vicki Parry. It is apparent that there is a contest as to whether or not Ms Parry told the respondent that he was not going to progress further in his employment with the appellant.
Whilst the respondent worker says this remark was upsetting, and Ms Parry denies saying it, it is not a significant event in terms of the overall assessment of factors that have given rise to the respondent worker’s injury.
Secondly, the appellant points to the Marrickville Metro Medical Centre notes and the fact that they do not record any complaint of psychological symptoms until 12 March 2018. Whilst that may be true, authorities such as Mason v Demasi[162] warn that the contents of medical notes need to be approached with care. Further, the absence of complaints should not be treated as dispositive as the appellant urges.[163]
[162] [2009] NSWCA 227, [2] (Basten JA).
[163] Norrington v QBE Insurance (Australia) Ltd [2021] NSWSC 548, [32]–[34] (Brereton J) (Norrington).
In any event it was not necessary for all of these factual contests to be resolved.
The appellant asserts that where there is a contest with respect to the respondent worker’s evidence, the worker’s version should not be accepted. Clearly the appellant is asserting that the respondent worker is not a witness of credit. This was not a proposition put before the Member, rather it was submitted on behalf of the appellant that the evidence of Ms Parry and Mr Francis would be preferred and this was largely on the basis that whilst the respondent worker might have had a perception about his treatment, the perception must be as to real events. In support of this submission, the appellant’s counsel relied upon the matter of Townsend v Commissioner of Police,[164] a decision of the former Chief Judge McGrath. That is a different submission to the one being advanced on appeal in this paragraph.
[164] (1992) 25 NSWCCR 9.
Given that the matter of the respondent worker’s credit was not put to the Member in the manner in which it is advanced on appeal, by definition the Member can be involved in no error.
The complaint in this subparagraph is dismissed.
As to [36(d)]
The appellant in this subparagraph takes issue with the opinion of A/Professor Robertson in two respects. They are:
(a) that A/Prof Robertson failed to give adequate consideration to the failure of the respondent obtaining his promotion in forming his opinion regarding causation, and
(b) he took into account a history provided by the respondent worker which was not supported by the available evidence, and further that the Associate Professor took into account events which were not in the course of the respondent’s employment.
The approach to expert evidence in the Commissions is well settled. The Commission is a non-evidence based jurisdiction and the approach to expert evidence in that context is approached in the following manner. In Hancock v East Coast Timber Products Pty Limited[165] Beazley JA said as follows regarding expert evidence, namely that “the question of the acceptability of expert evidence will not be one of admissibility but of weight.” The approach taken by the appellant with respect to this subparagraph is perhaps closer to the approach to expert evidence in the courts as provided for by Makita (Australia) Pty Ltd v Sprowles[166] rather than how these matters are dealt with in tribunals such as the Commission. The Member was entitled to consider A/Prof Robertson’s opinion and give it such weight as he considered was appropriate and warranted. Further, no issue was taken before the Member that A/Prof Robertson’s opinion was not given in a “fair climate”,[167] nor that it could not be relied upon for the reasons set out in this appeal ground. This subparagraph has not been established and is dismissed.
[165] [2011] NSWCA 11, [83].
[166] [2001] NSWCA 305.
[167] Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; [1984] 2 NSWLR 505, 509–510.
As to [36(e)]
The complaint in this subparagraph relies upon the establishment of Grounds One, Two and Three and asserts that the Member’s determination was “infected” by errors in those grounds. As I have dismissed these three grounds, the complaint in this subparagraph likewise falls away. This complaint is not established.
As to [36(f)]
The appellant alleges that the weight of the evidence supported the conclusion that the predominant cause of the worker’s illness was his failure to obtain a promotion. The evidence which is said to support this submission has not been identified in terms. In dealing with this point, I will therefore consider the evidence in its wider sense, being the following three matters identified in paragraph [34] of the appellant’s submissions:
(a) the lay evidence of the appellant’s witnesses as to why the respondent worker was not promoted;
(b) Dr Ng’s opinion, and
(c) the reliance placed by the appellant upon the Marrickville Metro Medical Centre notes (see appellant’s submissions [34(m)]).
In terms of the Member’s functions is this regard, it is the Member’s responsibility to accept or reject evidence or to prefer some evidence over other evidence. The weight to be afforded to particular evidence is a matter that falls within the province of the primary decision maker.[168] Additionally, if the Member makes findings of fact these will not be disturbed on appeal if there is cogent support for them in the evidence.[169] Additionally as I have referred to above in terms of the principles on appeal, the Member must be wrong in terms of fact finding before the findings can be disturbed on appeal.
[168] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611.
[169] Fox v Percy [2003] HCA 22; 214 CLR 118, 125–6.
The Member dealt with these issues at reasons [20]–[22] before making a formal finding at reasons [25] that the appellant’s s 11A defence had not been established. Firstly, with respect to Dr Ng’s report, as I have examined with respect to Ground Three above, Dr Ng’s opinion is not as conclusive as the appellant alleges. In his first two reports, Dr Ng examines all of the stressors which had been impacting upon the respondent worker. Ultimately at the end of Dr Ng’s second report, he describes “the final proximal precipitating factors would appear to be his difficulties with promotion and with Mr Jamie Francis.”[170]
[170] Reply, p 139.
In his third report, Dr Ng has been pressed for an answer with respect to the appellant’s s 11A defence. Namely, the doctor is being directed, yet again, to the question of what was the predominant cause of the respondent’s psychological injury. In reading Dr Ng’s third report, it is clear that the doctor is alive to the artificiality of the proposition that is being put to him. He therefore qualifies his response to this question. That is, the doctor says that if he was considering “objective documentation, one can reach the conclusion that Mr Sfuncia’s psychological injury was predominantly caused by his lack of promotion or transfer”. Clearly here the doctor is repeating back the words of the s 11A defence posited to him in the question. But he then goes on to say “when asked to consider these two factors alone, his lack of promotion and the difficulties that Mr Sfuncia previously had with Mr Baghadi.”[171]
[171] Reply, p 146.
In short, Dr Ng proffered the desired opinion based upon the objective documentation, being the Marrickville Metro Medical Centre notes which do not reveal complaints until 12 March 2018. As I have described above referring to Norrington, the absence of complaints should not be treated as dispositive. Dr Ng’s opinion looked at in this light does not therefore provide the support for the proposition which is asserted in this subparagraph. In terms of the lay evidence, the appellant has not directed my attention to an error of fact finding in terms of how the Member dealt with that matter.
In the circumstances, no error having been established, the complaint in this subparagraph is dismissed.
As to [36(g)]
The appellant alleges that the respondent worker’s lack of qualifications required for the SOCO position leads to the inevitable conclusion that the appellant’s actions in not promoting the respondent worker were reasonable. This submission might have had some attraction if the evidence was to the effect that the undoubted psychological injury was wholly or predominantly caused by the respondent worker’s failure to obtain a promotion. As I have found above, it was open to the Member, properly construing the medical evidence, to find as he did. At reasons [21] the Member says as follows:
“Dr Ng in his report of 28 October 2019 attributes the [respondent worker’s] psychological issue to have been predominately caused by his lack of promotion and his difficulties with Mr [Baghadi]. Dr Ng does not simply say that lack of promotion was the predominate cause. Associate Professor Robertson supports the [respondent worker] in this regard.” (emphasis added)
Additionally, this submission in [36(g)] sits in contradistinction to the appellant’s letter to the respondent worker dated 16 August 2018[172] in which it is said on behalf of Ms Parry that at no stage did she tell the respondent worker that he was unsuccessful in his application for promotion because he did not hold business qualifications. Further, the evidence of Mr Francis is that the SOSO role required a Certificate III in horticulture and frontline management or experience in leadership. If one considers the position description for the SOSO role, this certificate is not specified as essential for the role.[173] The appellant’s evidence does not therefore support the substance of this submission.
[172] AALD, p 118.
[173] Reply, p 111.
In light of the Member’s finding regarding the medical causation of the respondent worker’s condition, the complaint in this subparagraph does not arise. In any event, the appellant’s evidence also does not support the complaint in this subparagraph. This subparagraph is dismissed.
As to [36(h)]
This paragraph contains a general submission that the Member’s decision was wrong in the exercise of both fact-finding and discretion by rejecting the s 11A defence. It is effectively a summary statement by the appellant of the overall appeal submissions advanced under Ground Four, but it is not an appeal point which has been developed. By this I mean no disrespect, I merely take it as being a summary of the appellant’s position with respect to Ground Four generally. Given what I have found in relation to Ground Four, this submission is not accepted.
DECISION
The respondent worker, through no fault of his own, was subjected to completely unacceptable behaviour at the respondent’s workplace. This behaviour was perpetrated upon him, and others, by a person whom the appellant had placed in a position of authority over these workers. After the appellant was moved to terminate Mr Baghadi’s employment, after complaints were received from the respondent and his colleagues, Mr Baghadi continued his campaign of cruelty towards the respondent. Clearly this campaign was conducted as a form or vengeance or retribution for the respondent’s role in complaining regarding Mr Baghadi’s conduct which led to the termination of his employment. This behaviour took place while the respondent worker was still in the employ of the appellant. On the evidence, that this behaviour, amongst other stressors, caused psychological injury to the respondent worker was a conclusion that was open on the evidence and which involved the Member in no error, either in fact finding or in the application of the law to the facts as found.
The Member’s Certificate of Determination dated 12 March 2021 is confirmed.
Judge Phillips
PRESIDENT
3 December 2021
23
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