Whittard v TAFE NSW

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Whittard v TAFE NSW [2022] NSWPIC 275
APPLICANT:	Russell Whittard
RESPONDENT:	TAFE NSW
MEMBER:	Karen Garner
DATE OF DECISION:	16 May 2022
CATCHWORDS:	WORKERS COMPENSATION- Psychological injury; claim for permanent impairment lump sum compensation pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act); applicant alleged he sustained a psychological injury due to bullying and harassing behaviour at work by his supervisor; whether the applicant sustained an injury pursuant to sections 4(a), 4(b)(i) and 9A of the 1987 Act; respondent raised defence pursuant to section 11A(1) of the 1987 Act; whether the applicant’s employment was the main contributing factor to his psychological injury; whether the psychological 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 performance appraisal or discipline; Held– applicant sustained a compensable psychological injury pursuant to sections 4(b)(i) of the 1987 Act; injury not wholly or predominantly caused by reasonable action of employer taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline; matter referred to President for referral to a Medical Assessor for determination of whole person impairment.
DETERMINATIONS MADE:	1. The applicant sustained a psychological injury in the course of his employment with the respondent on 8 May 2018 (deemed). 2. The applicant’s employment was the main contributing factor to his injury. 3. The applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by on behalf of the respondent with respect to performance appraisal or discipline.
ORDERS MADE:	1. I remit the matter to the President for referral to a Medical Assessor for assessment of the whole person impairment due to psychological injury with a deemed date of injury of 8 May 2018. 2. The documents to be reviewed by the Medical Assessor are: (a) the Application to Resolve a Dispute and attached documents; (b) the Reply and attached documents; (c) Application to Admit Late Documents filed on behalf of the applicant, dated 5 April 2022, and (d) Application to Admit Late Documents filed on behalf of the respondent, dated 31 March 2022.

STATEMENT OF REASONS

BACKGROUND

Mr Russell Whittard (the applicant) was employed as a Work Health Safety Specialist by TAFE NSW (the respondent).
The applicant claims that he sustained psychological injury due to being subjected to bullying and harassment behaviour by the respondent’s Safety Manager, Linda Watts (Ms Watts) and by the respondent’s Head of Safety, James Jammo (Mr Jammo).
By notice dated 30 July 2018 issued pursuant to s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), Allianz Australia Insurance (the insurer) denied the applicant’s claim for weekly payments and medical expenses on the basis that:
(a) it disputed the alleged psychological or psychiatric injury arises out of or in the course of the applicant’s employment within the meaning of s 4 of the Workers Compensation Act 1987 (the 1987 Act);
(b)    it disputed the applicant’s employment is or was the “main contributing factor” to his alleged psychological or psychiatric injury within the meaning of s 9A of the 1987 Act (I note that possibly it was intended to refer to “substantial contributing factor” to the extent that it was not a disease injury);
(c)    it disputed the causation of the alleged psychological or psychiatric injury and the manner in which the injury occurred;
(d)    in the alternative, it asserted that the applicant’s psychological injury resulted wholly and/or predominantly from reasonable action taken or proposed to be taken by the respondent with respect to performance and/or discipline within the meaning of s 11A(1) of the 1987 Act;
(e)    in the alternative, it asserted that the applicant’s psychological injury has not resulted in an incapacity for work as alleged or at all, so as to entitle the applicant to any payment of weekly compensation, and
(f)    in the alternative, it asserted that the applicant has not reasonably needed and/or continued to need medical treatment for psychological injury, within the meaning of s 60 of the 1987 Act.
By notice dated 18 March 2021 issued pursuant to s 78 of the 1998 Act, the insurer denied the applicant’s claim for permanent impairment lump sum compensation on the basis that:
(a)    it denied that the applicant was subjected to bullying and harassment behaviour by Ms Watts and Mr Jammo;
(b)    it denied the applicant suffered psychological injury in the manner alleged, and
(c)    it alleged that any psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to demotion, transfer, provision of employment benefits, performance appraisal and dismissal of workers under s 11A of the 1987 Act.
The applicant filed an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 12 January 2022. The applicant claimed lump sum compensation pursuant to s 66 of the 1987 Act in relation to psychological injury sustained in the course of his employment with the respondent on 8 May 2018.
At the commencement of the hearing, the applicant sought and was granted leave to amend the ARD to claim, in addition to injury pursuant to s 4(a) of the 1987 Act, a disease injury pursuant to s 4(b)(i) of the 1987 Act with a deemed date of injury of 8 May 2018. On that basis, the respondent was granted leave pursuant to s 289A of the 1987 Act to dispute injury pursuant to both s 4(a) and s 4(b)(i) of the 1987 Act.

PROCEDURE BEFORE THE COMMISSION

At a hearing on 8 April 2022, Mr Brendan Jones, counsel, appeared for the applicant, instructed by Mr Robert Bryden of Robert Bryden Lawyers. Mr Andrew Parker, counsel, appeared for the respondent, instructed by Peter Lichaa of Bartier Perry Lawyers.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The issues for determination are:
(a) whether the applicant suffered a psychological injury in the course of his employment with the respondent – ss 4(a) and 4(b)(i) of the 1987 Act;
(b)    to the extent that it is relevant, whether s 9A(1) is satisfied;
(c)    whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal or discipline – s 11A(1) of the 1987 Act;
(d)    quantification of the applicant’s whole person impairment – s 66 of the 1987 Act.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    ARD and attached documents;
(b)    the Reply and attached documents;
(c)    Application to Admit Late Documents filed on behalf of the applicant, dated 5 April 2022, and
(d)    Application to Admit Late Documents received on behalf of the respondent, dated 31 March 2022.

Oral evidence

Neither party applied to adduce oral evidence or cross-examine any witness.

The applicant

The applicant gave evidence by way of a written statement dated 28 June 2020.
The applicant said that he was employed by the respondent as a Work Health and Safety Specialist from 8 November 2017 to 8 May 2018, initially on a six month probationary period. His duties included responding to daily reported incidents, investigating incidents, documenting and following up on corrective actions, undertaking audits, conducting risk assessments, assisting with emergency management and advising and supporting on work health and safety matters.
The applicant stated that, during his employment, his supervisor, Ms Watts regularly: bullied and harassed him; acted in an aggressive manner towards him; screamed and yelled at him; belittled, demeaned and humiliated him; was unfairly critical of his work; ignored his attempts to explain his behaviour and performance, and acted unfairly and unsupportively towards him.
The applicant gave the following examples of such conduct by Ms Watts:
(a)    in December 2017, in the presence of the applicant, Ms Watts adopted a rude and derogatory tone towards a casual contractor named Bowe who offered to audit the TAFE safety systems. Following the contactor’s departure, Ms Watts reacted in a frustrated and verbally aggressive manner in front of the applicant and stated to the applicant ”Who the fuck does she think she is auditing our systems, she can just fuck off. Glad she’s gone, what a bitch”. Ms Watts’ reaction caused the applicant to feel physically shocked and dismayed and concerned not to get on Ms Watts’ “bad side” in the future;
(b)    in the applicant’s first week of employment, Ms Watts became short in her answers, visibly agitated, frustrated and verbally aggressive toward the applicant if he asked her a question or for an explanation. Ms Watts’ behaviour in that regard worsened over time;
(c)    when the applicant updated incident reports, Ms Watts patronised and belittled him regarding wording that he used, even though it was industry standard. Ms Watts would “bark” at the applicant, saying “this is TAFE and you’ll do things the way I want them done, OK”;
(d)    in December 2017, Ms Watts left her computer skype operational for approximately three hours whilst she was training the applicant on her computer. Consequently, without the applicant’s knowledge at the time, the applicant was in full view and hearing of the respondent’s senior management team for the duration of that that three hour period, whilst Ms Watts made many ongoing negative comments about other employees, such as “they can be dickheads”, “some teachers are total idiots” and “these people will take what you say and use it against you in meetings”;
(e)    in March 2018, Ms Watts “stormed” into the applicant’s office and was “extremely aggressive and demanding” of why a first aid professional by the name of Michael Palmer (Mr Palmer) did not call an ambulance for a student who was ‘fitting for 50 minutes’. The applicant explained that the student had not in fact been ‘fitting for 50 minutes’ but Ms Watts ignored the applicant’s explanation of what had actually occurred. Instead, Ms Watts kept repeatedly aggressively barraging the applicant with statements that an ambulance should have been called, questioning why an ambulance had not been called and criticising the applicant for not properly investigating the incident. Ms Watts became ‘more aggressive’ towards the applicant with her arms ‘flailing around’. Ms Watts directed the applicant to inform the first aid professionals to be clearer in their incident descriptions. However, in a later email to Mr Palmer, Ms Watts stated “I understand now and will have my people trained to ask the right/correct questions in future”, which caused the applicant to feel humiliated and belittled;
(f)    in March 2018, Ms Watts called the applicant into her office immediately upon his arrival to work one morning. Ms Watts was “visually upset” having assumed that the applicant had not completed his required work on a risk register EXCEL spreadsheet. Ms Watts said “what is wrong with you, don’t you know how to save a document”. The applicant said that he had completed the work and saved it the day before. He asked if Ms Watts had clicked on the dropdown box to find his saved work. Ms Watts ignored the applicant’s explanation of what had occurred and how to access his completed work. Ms Watts screamed at the applicant saying “I have done everything Russell, I can’t find it”. Ms Watts’ behaviour continued for approximately 20 minutes. When Mr McCool arrived at work, the applicant asked Mr McCool to talk to Ms Watts. Mr McCool explained to Ms Watts that both he and the applicant had completed and saved their work the day before. Mr McCool asked Ms Watts to check by clicking on the dropdown box. Ms Watts ignored the explanations of the applicant and Mr McCool. Ms Watts started yelling and threatening. When Ms Allport arrived in the office some time later, she clicked on the dropdown box and the applicant’s completed work instantly appeared. Ms Watts asked the applicant and Mr McCool to leave the office. Ms Watts’ behaviour caused the applicant to feel mentally and physically drained after being insulted, humiliated, patronised and bullied;
(g)    on 15 March 2018, the applicant sent Mr Jammo an email which stated that the applicant had taken on board Mr Jammo’s comments at a staff training day. Following that, Ms Watts burst into the applicant’s office ‘in a rage’ and said to the applicant in a raised voice “what the hell are you sending James an email for?”. Ms Watts then said “I told you, you are not to contact James ever, everything goes through me, you make me look like I don’t know what I am doing. It was a general comment to everyone in the room, Russell”. The applicant explained that due to his involvement in a particular incident, he thought he would personally confirm Mr Jammo’s directions. Ms Watts acted in an “aggressively frustrated” manner towards the applicant and said to him “now I have to explain your email to him, bloody hell why would you do that when I told you not to contact him” and she stormed out of the applicant’s office, closing the door;
(h)    on 27 March 2018, the applicant, Ms Watts, Mr McCool and another of the respondent’s employees, Milabel Estrera, attended a conference. Directly in front of Ms Estrera, Ms Watts slapped her hand on paperwork on a table and dragged the paperwork towards her in an aggressive manner;
(i)    on 14 April 2018, Ms Watts called the applicant into her office and asked why he had not contacted Craig Conroy. Ms Watts screamed at the applicant and in an abusive manner repeatedly said “It is your job, you are supposed to contact him”. The applicant returned to his office in a state of extreme stress and anxiety. He later went back to Ms Watts’ office and showed her an email which evidenced that had had contacted Mr Conroy on 10 April 2018. Ms Watts screamed and waved her arms around at the applicant and said “You must know everything”, “You didn’t tell me about this one” and “You made me look bad”. Ms Watts acted in a hostile and aggressive manner towards the applicant. If Ms Watts had checked a file note in the computer system, it would have been apparent to her that the applicant had indeed contacted Mr Conroy as required;
(j)    on 17 April 2018,[1] Ms Watts introduced the applicant and Mr McCool to several colleagues as “Guys who know nothing” and “They are not from TAFE, they are new, they are green”. The applicant perceived Ms Watts’ statements to be derogatory and they caused him to feel a sense of alienation from his work colleagues;
(k)    in the latter part of April 2018 when the applicant and Ms Watts were in her office, she questioned him about the appropriate description for an incident which involved the removal of an electrical switch cover. Ms Watts “got very aggressive” towards the applicant, raised her voice at the applicant and said on several occasions that she “didn’t understand his language, this is TAFE Russell, not industry”. When the applicant tried to explain that the language he used was consistent with industry standard, Ms Watts became “even more aggressive, saying I do not care you are in TAFE now: I have never heard that language before”. Ms Watts’ behaviour toward the applicant made him feel upset, isolated and left great doubt in his mind, leaving him fearful and questioning himself regarding his attempt to raise the level of language within the investigations;
(l)    Ms Watts questioned the applicant’s experience and “tore [the applicant] down at every opportunity that she had”. She made him feel like some of his contributions were deemed useless. Mr McCool reassured the applicant that he had done nothing wrong;
(m)     on 23 April 2018, Ms Watts verbally notified the applicant that his probation was to be extended. The applicant questioned and protested the extension of his probation period. Ms Watts said that she didn’t have time to organise a document as she was too busy, but would send the applicant an email in the following weeks. The applicant said to Ms Watts “if you think I am that bad why don’t you just let me go?”. Ms Watts looked at the applicant with a grin on her face, and replied “Oh Russell, if I didn’t want you here you wouldn’t be here”;
(n)    it was not until 8 May 2018, some two weeks later and the day prior to the end of the applicant’s probationary period, that Ms Watts formally notified him of the extension of his probation period and the reasons for the extension. During that two week period, the applicant asked Ms Watts what was the reason for extension of his probation period. Ms Watts did not provide an explanation and simply said that he would be notified of the reasons in writing. Ms Watts appeared to revel in the fact that the applicant did not know the reason.
[1] It appears that the date of 17 April 2017 in the applicant’s statement, incorrectly states the year.
The applicant stated that, in the first two months of his employment, Mr Jammo also bullied him and acted unfairly and unsupportively towards him. The applicant said that after the applicant commented to Ms Watts that his position was “heavily data entry/office based”, the applicant was requested to attend a meeting with Ms Watts and Mr Jammo. Mr Jammo stated that he had heard that the applicant was concerned with the amount of out of data incidents and the huge backlog of open incidents in the system. Mr Jammo then stated that if the applicant had an issue with the amount of data/administration involved in the position, then Mr Jammo “should call a meeting and see just who wants to continue to work at TAFE”. Ms Watts then asked the applicant to leave the office and said “that’s all for now”. The applicant perceived Mr Jammo’s comments as a threat to his employment and that Mr Jammo was unsupportive towards the applicant. The applicant perceived Ms Watts’ actions as being unsupportive towards the applicant and it caused the applicant to feel isolated and concerned about the workplace culture.
The applicant said that, during his employment, he told a number of work colleagues about Ms Watts’ behaviour toward him because it was getting “unbearable” and was detrimentally affecting his mental state to the extent that his health and home life were suffering. However, the applicant found it a constant worry because Ms Watts had instructed him not to communicate with others without her knowledge, regardless of the situation.
In a letter to the respondent dated 11 May 2018, the applicant alleged bullying and harassing behaviour by Ms Watts and Mr Jammo during the course of his employment. The applicant also denied allegations regarding his work performance and conduct.
The applicant stated that the actions of Ms Watts and Mr Jammo caused him to feel bullied, demeaned and humiliated. It caused him to sleep poorly and detrimentally impacted his psychological health and family life. The applicant said that, when he received the email of 8 May 2018, he felt physically ill, and mentally “at the end of my rope and unable to continue to work”. The applicant attended his general practitioner who referred him to a psychologist, Jelena Dillon. The applicant said that he remained psychologically unfit to work for at least another six months due to heightened threat, fear and anxiety following his treatment by Ms Watts and Mr Jammo.

The applicant stated that he continues to suffer psychological symptoms as a result of his treatment by Ms Watts and Mr Jammo, which include mood swings, anxiety and depression. Due to his high anxiety, he self-isolates at home and avoids attending public places, social events and family functions. He has given up hobbies and recreational activities that he previously enjoyed. He no longer has contact with his friends. He now has a sceptical and pessimistic attitude. He has issues with trust, cannot see the good in anything and experiences every day as a struggle. The applicant said that, consequently, his relationship with his wife and children has significantly suffered.

Violetta Whittard, the applicant’s wife

In a statement dated 28 June 2020, Ms Whittard said that, during the applicant’s employment with the respondent, the applicant often told her that Ms Watts: bullied and harassed him on a daily basis; treated him “like a child that knows nothing”; spoke to him in an “aggressive, rude and patronising manner”; regularly embarrassed him in front of colleagues, effectively said to colleagues that the applicant “knows nothing” because he was not from TAFE; during computer training in her office for approximately three weeks, leaned over him closely and got in his personal space; regularly phoned the applicant on a Friday afternoon and berated him with questions, then dismissed his enquiries and said “Don’t worry, I’ll see you in my office on Monday”’, which caused the applicant to feel anxious over the weekend, and aggressively demanded the applicant to come into her office on a Monday morning and then verbally abused him without reason.
Ms Whittard stated that, as a result of the bullying and harassment: the applicant’s behaviour is now very unpredictable; he sleeps poorly at night; he is very negative; he is always “talking about” the bullying and harassment and saying that Ms Watts “has destroyed his wellbeing, his family and his career”; he does not leave the house unless it is extremely necessary; he has pushed his friends away and is no longer in contact with them. This has significantly negatively impacted and strained the applicant’s relationships with her and their children.

Gerard McCool, applicant’s work colleague

A “file note” dated 19 July 2018 which appears to have been prepared by an investigator, Mr Jardine, as part of his investigations of the allegations of bullying and harassment stated: “Mr McCool said that he had no issues with Ms Watts and that he did not witness any untoward behaviour from Ms Watts directed at Mr Whittard”.
In a statement dated 26 August 2018, Mr McCool denied that he had ever given evidence which contradicted the evidence of the applicant. Mr McCool said that he had received a phone call from a person investigating the applicant’s allegations of bullying and harassment, but he was unable to talk because Ms Watts was in the office. Mr McCool later returned the call, but was informed that his input was not required as the investigation had already been completed.
Mr McCool stated that he agreed with the applicant’s evidence and that he had witnessed first-hand Ms Watts’ hostile treatment of the applicant which “was her usual approach” during most meetings in her office.
Mr McCool said that when he and the applicant asked Ms Watts questions about her verbal instructions, she ignored them, refused to answer and “ said she has told us, now go and do it”. Both the applicant and Mr McCool felt a sense of alienation because they were unable to ask Ms Watts for help or support.
Mr McCool said that Ms Watts told both he and the applicant that she was to be their sole point of contact and they understood that there would be consequences if they contacted other senior managers without her knowledge.
Mr McCool said that on one occasion whilst he was working in his office, he was suddenly disrupted by Ms Watts “screaming at the applicant as to why a First Aider did not call an ambulance”. He said that the applicant “tried to explain” but Ms Watts “just kept screaming at him”.
Mr McCool said that, on another occasion, he heard Ms Watts “yelling at” the applicant in her office. The applicant went to his office and printed an email to show Ms Watts that he had completed his work “and she still continued screaming”.
Mr McCool stated that it seemed to him that even if the applicant was doing his job, Ms Watts “would find something to create more stress than necessary” to make the applicant “look inadequate”.
Mr McCool felt concerned for the applicant’s well-being as Ms Watts’ behaviour towards the applicant was becoming more frequent. Mr McCool noticed that the applicant was becoming withdrawn by closing the door to his office and was not his usual self and Mr McCool spoke with the applicant several times to check “if he was ok”.
Mr McCool said that on several occasions when Ms Watts introduced the applicant and Mr McCool to managers and colleagues, she said that they “know nothing” and “are green”. Following those introductions, the applicant said to Ms Watts that he would prefer that she did not introduce them as knowing nothing as they both felt it was very belittling.
Mr McCool said that, from his office, he heard Ms Watts raising her voice frantically and saying to the applicant “this is TAFE” and “I don’t understand your language” in relation to the applicant’s recording of an incident.
Mr McCool observed the applicant’s behaviour at a training session on 14 March 2018, which was attended by various managers and employees of the respondent including the applicant and Ms Watts. Mr McCool disagrees with Ms Watts’ allegations regarding the applicant’s behaviour during that training session. Mr McCool observed the applicant to act in an entirely professional and appropriate manner.
Mr McCool said that on 27 March 2018, at a conference attended by Mr McCool, the applicant, Ms Watts and Milabel Estrera, he observed that when Ms Watts arrived, she slapped her hand on paperwork which was sitting on the table in front of Ms Estrera and dragged the paperwork towards her.

Chris Roberts, applicant’s work colleague

In a statement dated 3 September 2018, Mr Roberts said that he observed that the applicant acted in a level-headed, experienced and professional manner, he was motivated towards achieving an efficient outcome, provided solutions and had good investigative skills.
Mr Roberts stated that the applicant confidentially confided in Mr Roberts, that he was having issues with the way that Ms Watts was dealing with him. The applicant said that Ms Watts often screamed at him and she expected him to have information that had not been given to him. The applicant said that Ms Watt’s behaviour was taking a toll on his personal life and he was having trouble sleeping at night. The applicant said that he did not know what to expect when having a conversation with Ms Watts.
Mr Roberts observed that Mr Goss and Mr Jammo did not acknowledge the applicant’s presence when they were all in the canteen together.

Linda Watts, applicant’s supervisor

In a statement dated 23 May 2018, Ms Watts detailed the applicant’s duties, training, work performance, conduct and her interactions with the applicant during his employment. Ms Watts noted numerous issues and examples regarding the applicant’s work performance, conduct and attitude. Ms Watts noted other behavioural, performance and competency issues that she required the applicant to address during his employment, for example: not referring back to tools, emails, instructions that have been given to him; not accepting meeting invites and include travel time; needing to keep his work updated; attending meetings on time; having systems to set deadlines and reminders of deadlines; understanding TAFE culture and informing Ms Watts of contentious issues, and ensuring that documents were spell checked and proof read before submission.
The evidence includes various email correspondence and documents which relate to the above matters.
An email dated 8 May 2018 from Ms Watts to the applicant noted various issues with the applicant’s performance and conduct. The email stated that the applicant’s probationary period was extended for three months with a monthly review and identified performance and conduct objectives.
In a letter dated 11 July 2018, Ms Watts denied the substance of all the applicant’s allegations against her. Ms Watts denied that she ever treated the applicant in a manner that was, or could be perceived as, bullying. Ms Watts said that she adhered to and promoted the respondent’s values and code of conduct. She stated that the applicant made no complaint about her conduct at the time of the alleged incidents nor at any time before he was advised of the extension of his probationary period. Ms Watts stated that she believed that the applicant made the allegations due to his dissatisfaction at being subjected to performance management through extension of his probationary period, to avoid such performance management and out of malice towards Ms Watts.
In a statement dated 2 March 2022, Ms Watts denied being present when Mr Jammo issued a threat to the applicant. Ms Watts denied any recollection of a contractor named Bowe or talking to a contractor about a reporting system, denied any recollection of an incident of a student having a seizure and denied any recollection of the specific roadshow referred to in the applicant’s evidence. Ms Watts denied that she refused to listen to the applicant or Mr McCool regarding an email to Mr Jammo and denied that she yelled at or abused the applicant regarding any such email. Further, Ms Watts denied that she patronized, belittled, bullied, insulted, humiliated, patronized, abused or yelled at the applicant at any time.

Michael Palmer, employee of the respondent

In a statement dated 23 February 2022, Mr Palmer said that he did not work in the same office space as Ms Watts. He recalled having only three or four conversations with the applicant during his employment. Mr Palmer stated that he did not observe bullying behaviour by Ms Watts towards the applicant nor anyone else.

James Jammo, manager

In a statement dated 23 February 2022, Mr Jammo said that he could not recall any conversation with the applicant in his office about the role being administrative or making any threat towards the applicant. However, Mr Jammo did state that the applicant’s role was heavily administrative and Mr Jammo made that clear to people during the recruitment process. Mr Jammo did not receive any complaint from the applicant or anyone else regarding Ms Watts. Mr Jammo noted that the applicant’s performance was managed and his probationary period was extended.

Alex Demetre, human resources employee of the respondent

In a statement dated 23 February 2022, Mr Demetre said that he observed that the applicant had poor performance and attitude and struggled to accept feedback. Mr Demetre said that he provided advice and support to Ms Watts in managing the applicant’s performance and probationary period extension. He did not recall receiving any complaints about Ms Watts.

Other evidence

The respondent’s letter of offer to the applicant dated 12 October 2017 stated that the applicant commenced employment on 8 November 2017 and was initially employed on a six month probationary period.
Other evidence included employment/human resources/training documents, email correspondence and file notes relevant to the applicant’s employment.
An investigation report prepared at the request of the respondent included evidence of various witnesses, given by way of statements, which are referred to above. The report recorded the investigator’s findings that all of the applicant’s allegations of bullying and harassing behaviour by Ms Watts were not sustained.
A supplementary investigation report prepared at the request of the insurer included further evidence of various witnesses, given by way of statements, which are referred to above.

Treating medical evidence

Dr Augusto Tablante, treating general practitioner

Dr Tablante’s clinical notes dated 23 April 2007 noted that the applicant had “reactive depression”.
WorkCover Certificates signed by Dr Tablante in April and May 2007 stated a diagnosis of “reactive depression” and noted that the applicant was being treated with counselling, medication and psychiatry.
Dr Tablante’s clinical notes dated 23 April 2007 noted “severe reactive depression”.
Dr Tablante’s clinical notes dated 13 May 2007 noted that the applicant had “reactive depression”, was “still getting anxiety symptoms” and was “due to see Dr Smith Psychiatrist on 23/5/07”.
WorkCover certificates signed by Dr Tablante in July 2007 stated a diagnosis of “reactive depression” and noted that the applicant was being treated with counselling and medication.
WorkCover certificates signed by Dr Tablante in October 2007 stated a diagnosis of “adjustment disorder”, “depressed” and “anxious mood” and noted that the applicant was being treated with counselling and medication.
Dr Tablante’s clinical notes dated 21 April 2009 noted “ongoing pain and depression”.
Dr Tablante’s clinical notes dated 14 December 2014 stated that the applicant was “being allegedly bullied and harassed at work by one of the managers” and had now become depressed, angry, anxious with lack of sleep, severe mood swings; now affecting family members as well...”.
Dr Tablante’s clinical notes dated 4 February 2016 stated that the applicant:
“... was under a lot of stress with associated depression and recurrent anxiety attacks due to multiple factors... bullying and harassment, which has been recurring whilst he has been in his employment
This occurs approximately yearly, but has been dealt with in the past with allegations of performance issues being overturned
Once again, he has been facing false allegation in regards to his duties performed in his role...
This has caused him to become depressed, anxious, unable to concentrate, has become quite excessively moody and has made him difficult to do his normal daily function/activities over the last few days...”
WorkCover Certificates of Capacity completed in February and March 2016 stated that the applicant had adjustment disorder with acute depression with anxiety attacks in relation to allegations that the applicant was not doing his duties but would not provide details. The certificate noted a “past history of work related reactive depression”. They noted treatment including counselling, antidepressants and psychiatry under psychiatrist, Dr Smith.
A WorkCover Certificate of Capacity included in the evidence is barely legible but it appears to be dated 9 May 2018 and to state a diagnosis of “Adjustment Disorder with recurrent Anxiety” caused by “harassment/bullying from his manger for 4 months”.
Dr Tablante’s clinical notes dated 17 May 2018 stated:
“Patient still with ongoing adjustment disorder with depressed and anxious mood due to alleged bullying by direct manager
Patient always reminiscing about the situation of always being put down despite doing all the hard work
Now has come to the point that it is affecting his interaction with friends and family, has become socially withdrawn
Management: Suggest to commence on Pristiq 50 mg 1 daily
Suggest to see Dr. Smith (psychiatrist) for ongoing advice, investigation and management
Suggest also to commence on counselling ASAP
WorkCover certificate extended for the next 2 weeks
Avoid contact with the offending manager
Review as required”
A WorkCover Certificate of Capacity dated 1 June 2018, signed by Dr Tablante, certified the applicant having no work capacity with a diagnosis of adjustment disorder with acute depression/anxiety attacks.
During 2018 and 2020, Dr Tablante completed numerous WorkCover Certificates of Capacity which diagnosed adjustment disorder with acute depression with anxiety disorder.
In a report dated 23 January 2020, Dr Tablante stated that the applicant had worsening symptoms of depression/anxiety especially over the Christmas period to the point that his symptoms were carrying over to his family environment putting strain on his wife and children. Dr Tablante stated that in his opinion, the applicant required urgent ongoing psychiatric assessment and counselling.
In a supplementary report dated 30 March 2022, Dr Tablante stated that despite his entries of “short term psychological symptoms related to [the applicant] for the 23 April 2007, 13 May 2007 and 22 February 2017... I can confirm that [the applicant] was not experiencing any psychological symptoms when he commenced working at TAFE”.

Jelena Dillen, consulting psychologist

Ms Dillen treated the applicant from July 2018 until May 2020, upon a referral from the applicant’s treating general practitioner for the treatment of Acute Adjustment Disorder with Depressed and Anxious Mood in relation to work related issues with alleged constant bullying and harassment from his manager.
In a report dated 12 September 2018, Ms Dillen noted that when the applicant first attended her on 4 July 2018, he described in a lot of detail what appeared to be systematic, persistent bullying behaviour from his manager, Ms Watts. The applicant described various occurrences of his manager speaking to him rudely and aggressively and not being clear in her direction and instruction giving. The applicant said he felt that nothing he did was good enough for his manager and he described feeling confused and scared working with her because of her mostly verbally abusive and volatile interactions with him and other staff members. He said that he tried to adapt his behaviour to develop a good working relationship with her but nothing that he did was welcomed or appreciated by her.
Ms Dillen noted that the applicant presented with symptoms of anxiety such as difficulty controlling his emotions, irritability, sleep disturbances, ruminating thoughts, flashbacks, nightmares related to work, fear and uncertainty about his future. He presented with symptoms of depression such as low mood, feelings of helplessness and hopelessness, loss of interest in previously pleasurable activities, difficulty communicating and interacting with family members due to feeling defeated, isolated, forced to stop working after a lengthy and satisfying career.
Ms Dillen stated that, having regard to the Diagnostic and Statistical Manual of Mental Disorder, Fifth Edition (DSM-5), Ms Dillen diagnosed Adjustment Disorder with Depressed and Anxious Mood. Ms Dillen opined that the applicant’s symptoms had developed within three months of commencing employment with the respondent. Ms Dillen stated that prior to commencing employment with the respondent, the applicant had no history of psychological symptoms and no pre-existing mental health conditions and reported good social, occupational and personal functioning. Ms Dillen opined that the applicant’s employment with the respondent, specifically unreasonable actions and behaviours of Ms Watts, was the main contributing factor to the applicant’s psychological injury. Ms Dillen stated that it was difficult to determine the applicant’s prognosis.
In a report dated 30 September 2020, Ms Dillen stated that the applicant’s symptoms had reached maximum improvement and were stable. She opined that the applicant’s condition was permanent. Ms Dillen noted that the applicant continued to experience ongoing psychological symptoms. Ms Dillen again noted that the applicant had no pre-existing psychological symptoms or mental health conditions and reported good social, occupational and personal functioning prior to the alleged bullying and harassment by Ms Watts. Ms Dillen stated that in her professional opinion the applicant’s employment with the respondent, specifically unreasonable actions and behaviours of Ms Watts, caused the applicant’s psychological injury.
In a report dated 12 March 2021. Ms Dillen stated:
“... After thorough clinical history taking, I confirm that Mr Whittard’s psychological condition was solely result of the workplace incident and had no relation to his PTSD from 2004. Mr Whittard recovered completely from his PTSD which was evident in his ability to continue working in a mentally and intellectually demanding roles in Workplace Health and Safety (WH&S) industry as well as having a stable work history and stable and meaningful family relationships previous to his workplace injury in 2018.”

Ms Dillen stated that the applicant’s diagnosis of adjustment disorder with mixed anxiety and depressed mood satisfied DSM-5 criteria. She stated that the applicant’s psychological symptoms developed within three months of alleged bullying and harassment in the respondent’s workplace, the applicant had been unable to return to his workplace or obtain other employment, his relationships with his family had been adversely impacted, his social functioning had been adversely impacted including social withdrawal and he had lost interest in previously enjoyable activities. She noted that the applicant continued to experience ongoing symptoms of anxiety and depression notwithstanding psychological treatment. She stated that in her opinion, the applicant’s symptoms were stable and permanent with no further improvement expected.

Dr Ricky Tsang, consultant psychiatrist

Upon referral by Dr Tablante, Dr Ricky Tsang first assessed the applicant in June 2018 and treated the applicant from July 2018.
Dr Tsang’s clinical notes recorded the applicant’s description of workplace bullying and harassment by Ms Watts. Dr Tsang’s clinical notes also recorded that the applicant sustained a serious physical injury in a motor cycle accident in 2004, following which the applicant saw a psychologist for possibly two occasions and that the applicant did not experience depression nor post-traumatic stress disorder as a result of that injury.
Dr Tsang’s clinical notes dated 20 June 2018 noted an impression of post-traumatic stress disorder.
In a report dated 28 October 2018, Dr Tsang stated that he was convinced that the applicant “has been suffering from Major depressive and general anxiety disorder, for which symptoms overlapping many PTSD criteria, precipitated by his moral injuries from his work situation”.
In a report dated 5 November 2020, Dr Tsang stated that the applicant fulfilled the three symptoms clusters (being intrusion, avoidance/numbing and hyper arousal) required by the DSM-5 manual for a diagnosis of post-traumatic stress disorder. Dr Tsang was reluctant however to diagnose post-traumatic stress order for the sole reason that it was “open to discussion whether bullying can be considered to constitute a life threatening event” which was a further requirement to satisfy the diagnostic criteria.
Dr Tsang stated that the applicant fulfilled the DSM-5 diagnostic criteria required for a diagnosis of major depressive disorder, including pervasive depressed mood, diminished interest or loss of pleasure in almost all activities, sleep disturbance, psychomotor agitation or retardation, fatigue or loss of energy, diminished ability to think or concentrate, indecisiveness and the symptoms caused significant distress or impairment in social, occupational or other important areas of functioning.
Dr Tsang stated that the applicant also fulfilled the DSM-5 diagnostic criteria required for a diagnosis of anxious distress, including poor concentration due to worry, feeling tense, feeling that something bad would happen and feeling that he is losing control.
Dr Tsang opined that the applicant’s symptoms had reached maximum medical capacity and were stable and permanent. He did not believe it was likely that the applicant would return to work.
Dr Tsang expressed the opinion that any post-traumatic stress disorder that the applicant suffered as a result of his 2004 accident bore no relationship to his current psychological condition. Dr Tsang stated that the applicant had “long been in complete remission from his past PTSD caused by his 2004 accident from psychiatric point of view and should not have had a significant predisposing and precipitating factor for his current injury”, especially of the trauma of completely different nature, source and setting.

Evidence of independent medical experts

Dr Samson Roberts, general and forensic psychiatrist

Dr Roberts provided medicolegal reports at the request of the applicant.
In a report dated 12 June 2019, Dr Roberts noted that he reviewed a report of Ms Dillen and documentation from Dr Ricky Tsang and St John of God Hospital. Dr Roberts also assessed the applicant in person. Dr Roberts noted the applicant’s history which included seeing a psychologist on referral from a general practitioner on three occasions following a motorbike accident and injury in 2004. The applicant described being bullied and harassed by Ms Watts at work.
Dr Roberts noted the applicant reported that his manager: was “narcissistic”; introduced him and a colleague as “new”, not from TAFE and “know nothing”; spoke to him and his colleague like school children and micromanaged them; repeatedly checked on him and he had to sneak out to have a conversation; did not permit him to contact other managers; screamed at him, particularly in response to an email he had sent to another manager; picked on him for issues that he considered unreasonable; berated him and nothing he said to her would appease her anger; would not listen to him and then sent an email criticising him to a third party; would demand that he drop everything and come into her office; verbally “punched and punched and verbally bashed”; spoke to him in a schoolmarm type fashion; sought to represent his work as her own; placed him under pressure to the extent that he was fearful of leaving his desk and on one occasion felt compelled to urinate in a cup because he was so anxious that he would not make it to the toilet in that context, and stated that she wanted him to be there for his experience but then berated him for it. Dr Roberts noted that the applicant explained that his six-month probationary period was extended without explanation and he had difficulty accepting that because he had never been required to participate in a performance review.
Dr Roberts noted that, on mental state examination, the applicant was overtly distressed when describing matters to which he was subjected in the workplace and it was apparent that his distress contributed to his disorganisation. The applicant was animated at times and at times agitated. Irritability was apparent. The applicant described a pervasively depressed mood and an inability to enjoy himself with the exception of time spent with his dog. No features of a psychotic nature were apparent.
Dr Roberts diagnosed the development of a major depressive disorder consequent upon circumstances to which the applicant had been subjected in the workplace. Dr Roberts stated that whilst the condition may have arisen as an adjustment disorder with mixed, depressed and anxious mood, due to the duration and severity of the symptomatology it was better described as a major depressive disorder. Dr Roberts considered the diagnosis of post-traumatic stress disorder but discounted it as all the diagnostic criteria were not met.
Dr Roberts stated that the applicant was not currently fit for work in any capacity and stated that further treatment of a psychiatric nature was required. His prognosis was guarded.
In a report dated 31 March 2020, Dr Roberts noted that he reviewed his previous report and a report of Dr Tablante dated 23 January 2020. Dr Roberts also assessed the applicant by video conference. Dr Roberts noted the applicant’s history which included medical history of seeing a psychologist on referral from a general practitioner on three occasions following a motorbike accident and injury in 2004.
Dr Roberts noted that the applicant described ongoing symptoms which included pervasively depressed mood, pessimism, sleep disturbance, loss of motivation and altered appetite, almost a total absence of enjoyment, episodes of heightened anxiety associated with physical symptoms of panic and anticipatory anxiety. On mental state examination, Dr Roberts observed that the applicant was overtly irritable (despite an attempt to moderate it) and disorganisation was evident. The applicant described a pervasively depressed mood and his attitude was one of pessimism. The applicant described anxiety and a propensity to panic attacks. No features of a psychotic nature were apparent.
Dr Roberts diagnosed a continuing major depressive disorder, consequent upon circumstances to which the applicant had been subjected in the workplace. Dr Roberts stated that the applicant was not fit for work. He stated that the applicant’s diagnoses warranted further treatment including the input of a specialist consultant psychiatrist. Given the chronicity and severity of the applicant’s condition, Dr Roberts opined that his prognosis remained guarded. Dr Roberts assessed 26% whole person impairment.

Dr Scott Clark, consultant psychiatrist

Dr Clark provided medico-legal reports at the request of the respondent.
In a report dated 11 July 2018, Dr Clark noted that he reviewed: a statement of the applicant; various emails; Legal Issues Bulletin No 39; TAFE, NSW personnel policies; WorkCover NSW – Certificates of Capacity; the applicant’s employment contract with the respondent dated 17 October 2017; and the applicant’s pre-employment health declaration. Dr Clark also assessed the applicant in person. Dr Clark noted the applicant’s history which included medical history of seeing a psychologist on referral from a general practitioner on three occasions following a motorbike accident and injury in 2004 but did not include any psychiatric hospital admission. Dr Clark noted that the applicant denied having any psychological problems as a result of that accident, and denied any prior psychological problems, history or treatment with counselling, psychotherapy, or psychiatric medication. Dr Clark noted that the applicant denied any life stressors at any time apart from the alleged bullying and harassment and said that his state of health prior to the injury was good. Dr Clark noted that the applicant denied experiencing the same or similar injury.
Dr Clark noted that the applicant described being bullied and harassed by Ms Watts at work. The applicant said that he first started to have psychological problems in December 2017 and the symptoms increased approximately five months after commencing work with the respondent. The applicant reported that at the end of April 2018, his manager first expressed uncertainty about whether he was adequately retaining information and, shortly afterward, he received an email listing several problems regarding his work performance and advising that his six month probationary period which was soon to expire, would be extended. That was the “straw that broke the camel’s back”. The applicant said that he had no prior warning or information about those matters. The applicant said that he feared his employment being terminated, could no longer cope with his manager’s behaviour and could not bear the idea of having to experience his manager’s behaviour for another three months. He attended his general practitioner and was referred to a psychologist and psychiatrist. The applicant attributed his emotional problems to the difficulties he experienced in the workplace.
On mental state examination, Dr Clark noted that the applicant described mood symptoms such as feeling “numb”, his mood was “up and down” and even when he was feeling “up” his mood was not as it would usually be. The applicant described problems with sleep and regular dreams and having lost some interest in socialising . The applicant described anxiety symptoms and said he was “always thinking about the manager”. Dr Clark noted that the applicant’s affect was reactive and appropriate, and he smiled occasionally. The applicant’s thoughts were rational, relevant, and coherent. The applicant’s thought content focussed on the behaviour of the manager in his workplace, and disbelief that he had not performed adequately and that his probationary period had been extended. Mr Clark did not note any psychotic symptoms, paranoid or delusional ideation, or perceptual disturbance. His attention, concentration and memory were all grossly intact and his judgement appeared intact.
Dr Clark diagnosed adjustment disorder with mixed anxiety and depressed mood. He opined that the applicant’s prognosis was favourable with treatment and resolution of the industrial issues.
In a report dated 30 November 2020, Dr Clark noted that he reviewed: the reports of Dr Roberts dated 12 June 2019 and 31 March 2020; assessment and progress notes of Dr Ricky Tsang dated 20 June 2018, 1 August 2018 and 3 October 2018; report of Ms Dillen dated 12 September 2018; letter from Dr Tablante dated 23 January 2020; and Dr Clark’s previous report dated 11 July 2018. Dr Clark also assessed the applicant by video conference.
Dr Clark noted, on mental state examination, that the applicant was cooperative but his speech was often elevated and rapid and he had an intense and forceful manner during most of the interview. At times, he was agitated and gesturing. He said he was sweating during the interview. His mood was angry and his affect was elevated and agitated. He was preoccupied with what he stated were injustices at his workplace, and the attitude of others towards him. There was no evidence of formal thought disorder nor psychotic symptoms. There was no apparent significant deficit in attention, concentration or memory. The applicant reported that he does not like to be around people, is not a pleasant person to be around and avoids leaving the house. He said he had regular thoughts of suicide although no plan or intent because he has a family. Dr Clark noted ongoing symptoms of mood lability and irritability, agitation, disrupted sleep patterns, ruminative thinking, reported lower concentration, anger and dysphoric presentation.
Dr Clark diagnosed adjustment disorder with mixed anxiety and depressed mood, which had become chronic. Dr Clark also made a differential diagnosis, equally valid, of major depressive disorder. Dr Clark noted that the applicant’s condition appeared to have worsened since his last assessment. Dr Clark stated that the applicant’s prognosis was guarded and the condition was likely to be permanent. Dr Clark considered that the applicant had reached maximum medical improvement. He assessed 24% WPI.
However, in a supplementary report dated 31 March 2022, Dr Clark stated that he reviewed various documents noted in his report. Dr Clark further stated:
“Please note the information provided to me includes medical practice records that indicate Mr Whittard had significant psychological difficulties and psychiatric treatment, including medication and counselling, prior to the matters for which he was assessed by me in July 2018 and November 2020. At those assessments Mr Whittard provided information that contradicts these records and it appears he did not give a thorough or truthful account of his history to me.
Given the inconsistency between his accounts and that contained in the medical records, I can have no confidence in the veracity or truthfulness of any information Mr Whittard has provided to me, and thus I no longer have confidence that the opinions put forward in my reports can be relied upon in relation to diagnosis, causation, capacity for work, need for treatment and MMI/WPI.”

SUBMISSIONS

Oral submissions made by the respective counsel were recorded.

Applicant’s submissions

In summary, the applicant’s counsel submitted:
(a)    whilst the applicant had some history of psychological symptoms prior to commencing employment with the respondent, the evidence demonstrates that the applicant was fully recovered prior to commencing work with the respondent and that his past psychological history is unrelated to his present psychological injury;
(b)    the applicant’s failure to accurately report his complete psychological history should not give rise to adverse findings regarding the applicant’s credit because it can be understood in the context that the applicant did not have psychological symptoms at the time when he commenced employment with the respondent;
(c)    having regard to the evidence as a whole, the Commission should be satisfied that the applicant was a witness of truth and his evidence should be accepted;
(d)    various parts of the evidence support a finding that alleged stressor events did in fact occur in the workplace, and the applicant perceived them to be bullying and harassing conduct by Ms Watts and Mr Jammo;
(e)    the opinion of Dr Roberts and the treating practitioners should be preferred over the opinion of Dr Clark;
(f)    the evidence as a whole supports a finding that the applicant has a psychological injury contracted in the course of employment and the alleged stressor events were the main contributing factor to the applicant’s psychological injury;
(g)    the psychological injury was not wholly or predominantly caused by action in relation to any of the categories listed in s 11A, specifically performance appraisal and discipline, and in any event, it was not reasonable, and
(h)    accordingly, a defence is not available under s 11A of the 1987 Act.

Respondent’s submissions

In summary, the respondent’s counsel submitted:
(a) the evidence does not support a finding of a personal injury pursuant to s 4(a) of the 1987 Act because no significant event occurred on 8 May 2018 apart from the issue of correspondence to the applicant and that event was entirely reasonable;
(b) s 4(b)(i) of the 1987 Act is more relevant to the nature of the applicant’s case;
(c) the applicant does not claim injury pursuant to s 4(b)(ii);
(d)    the applicant should not be accepted as a credible witness because he failed to accurately report his psychological history and, further, the applicant critically failed to address the issue by way of a further statement of evidence;
(e)    having regard to the evidence as a whole, the Commission should not be satisfied that the alleged conduct did in fact occur;
(f)    evidence in relation to the applicant’s psychological history demonstrates that the applicant had a continuing psychological condition which pre-existed his employment with the respondent;
(g)    the Commission should not accept the opinion of Dr Roberts and the treating practitioners. Particular weight should be given to Dr Clark’s most recent report dated 31 March 2022 that, in the context of additional information provided about the applicant’s prior psychological history, Dr Clark had no confidence in the veracity or truthfulness of the information that the applicant had previously provided to him and, further, he had no confidence in his previous opinions in relation to diagnosis, causation, capacity for work, need for treatment and whole person impairment. The decision of Whisprun Pty Ltd v Dixon[2] is relevant in this regard. That decision makes it clear that expert opinions are effectively contingent upon the accuracy of information and assumptions upon they are based;
(h)    the present matter is analogous to the matter of Wood v Woolworths;[3]
(i)    in relation to the issue of causation, s 4b)(i) requires that the alleged bullying and harassment is the “main contributing factor” to the psychological symptoms. The applicant’s medical evidence should be given less weight because it was based on an incomplete understanding of the applicant’s psychological history. The most recent report of Dr Tablante does not assist the applicant’s case because Dr Tablante seemed to suggest that because the applicant did not have psychological symptoms immediately prior to commencing employment with the respondent, the alleged workplace bullying and harassment must be the cause of any psychological symptoms. However that is not the test: rather the proper approach to determine causation is as described in Nguyen v Cosmopolitan Homes[4] (Nguyen);
(j)    the evidence as a whole does not support a finding that the alleged workplace bullying and harassment events did occur and, further, does not support a finding that such conduct was the main contributing factor to psychological injury;
(k)    in relation to a defence pursuant to s 11A of the 1987 Act, in accordance with the decision of Kushwaha v Queanbeyan City Council[5] (Kushwaha), “discipline” should be given a broad meaning;
(l)    the evidence demonstrates that the applicant was subjected to performance appraisal and discipline, which was entirely reasonable, and
(m)     accordingly, a defence is available pursuant to s 11A of the 1987 Act.
[2] [2003] HCA 48, [60].
[3] [2020] NSWWCCPD 8, [201]-[203], [183]-[189].
[4] [2008] NSWCA 246.
[5] [2002] NSWCC 25.

Applicant’s submissions in reply

In summary, the applicant’s counsel submitted in reply:
(a)    no adverse finding should result from the applicant’s failure to file a further statement which addressed the applicant’s apparent inaccurate reporting of his psychological history because the respondent did not avail itself of the opportunity to cross-examine the applicant in that regard;
(b)    in addition, the applicant’s failure to make a further statement of evidence which addressed the issue was adequately explained by an email written by the applicant’s solicitor in June 2020 which advised of their concern for the applicant’s mental health;
(c)    further, the applicant’s failure to report his complete psychological history should not adversely affect his credit. It does not follow that a lay person with no symptoms at the time he commenced full-time employment with the respondent should have known that his psychological history dating back to 2004 and 2007 would be relevant to the psychological symptoms which developed after he commenced work with the respondent;
(d)    the respondent’s submissions that the applicant’s current psychological symptoms are a continuation of psychological symptoms which he has experienced prior to commencement of his employment with the respondent is only aspirational and is not supported by any expert evidence in that regard. Further, Dr Tablante’s evidence is that the applicant had no symptoms at the time of returning to full-time work with the respondent. There is no evidence that the applicant had a psychological condition nor psychological symptoms at the time he commenced employment with the respondent;
(e)    the Commission should not accept the opinion of Dr Clark in his final report because he disengaged from the role of expert and did not provide the evidence required to address the issues in dispute;
(f)    the evidence of the applicant’s treating practitioners and Dr Roberts should be accepted to support a finding that the main contributing factor of the applicant’s psychological injury was the alleged bullying and harassment conduct. Their opinion should be accepted because the evidence of Dr Tablante is that the when the applicant commenced employment with the respondent, he had fully recovered from past psychological condition;
(g)    the defence of s 11A of the 1987 Act is not available because the evidence does not support a finding that the psychological injury was wholly or substantially caused by the factors in s 11A(a), in particular performance appraisal or discipline, and
(h)    further, the evidence does not support a finding that actions in relation to performance appraisal or discipline were reasonable.

FINDINGS AND REASONS

Were there real events in the workplace which the applicant perceived to be bullying and harassment?

It is necessary to determine whether the events alleged by the applicant did in fact occur, and if so, whether the applicant perceived those events to be bullying and harassment.
In his statement, the applicant identified numerous incidents of behaviour by Ms Watts over the course of his employment with the respondent, which are set out in detail above, which comprised Ms Watts regularly acting in a bullying, harassing and aggressive manner towards the applicant; screaming and yelling at the applicant; belittling, demeaning and humiliating the applicant; being unfairly critical of the applicant’s work; ignoring the applicant’s attempts to explain his behaviour and performance, and acting unfairly and unsupportively towards the applicant. Further, the applicant alleged that in a meeting attended by Mr Jammo, Ms Watts and the applicant, Mr Jammo acted in a bullying and harassing manner, and acted unfairly and unsupportively towards the applicant.
Matters came to a head on 8 May 2018 when the applicant was notified in writing of the extension of his probationary period and the reasons for extension. The applicant then attended his general practitioner and subsequently made a formal complaint of bullying and harassment.
An investigation at the request of the respondent found that all of the applicant’s allegations of bullying and harassment were not sustained. I have had regard to the original investigation report and a supplementary report including statements of evidence prepared by the investigators in addition to the various other supporting documentation relied upon by the respondent.
Ms Watts strongly denied all of the applicant’s allegations regarding her alleged bullying and harassing behaviour. It is apparent from Ms Watts’ evidence that she had ongoing issues with the applicant’s work performance and conduct which she actively tried to manage over the course of the applicant’s employment. Ms Watts denied attending a meeting where Mr Jammo acted towards the applicant in the manner alleged.
Mr Jammo “could not recall” any conversation in his office with the applicant nor making any threat towards the applicant, but he did not expressly deny that. Mr Jammo did acknowledge that the applicant’s role was heavily administrative and that he would have made that clear.
Mr Roberts gave evidence that Ms Watts and Mr Jammo did not acknowledge the applicant’s presence in the canteen. Mr Roberts stated that the applicant confided in him that he was having issues with the way that Ms Watts treated him. Mr Roberts said that the applicant reported that Ms Watts often screamed at him and she expected the applicant to deal with information that she expected him to have but which had not been provided to him. The applicant said that he did not know what to expect when having a conversation with Ms Watts. The applicant confided that Ms Watt’s behaviour was taking a toll on his personal life and he was having trouble sleeping at night.
Whilst Mr Palmer stated that he did not observe bullying behaviour by Ms Watts towards the applicant, he acknowledged that he was not in the same office space as Ms Watts. It could be assumed that he did not have the same opportunity to observe Ms Watts’ behaviour as Mr McCool who was located in the same section.
Mr Demetre stated that he “could not recall” receiving any complaints about Ms Watts, but notably did not expressly deny that.
I note that an investigator’s file note dated 19 July 2018 noted that Mr McCool reported not observing any untoward behaviour by Ms Watts. However, the file note was not signed by Mr McCool and the investigator has not provided further evidence in that regard. I attribute little weight to that file note because it was not signed by Mr McCool and it is inconsistent with a signed statement later given by Mr McCool.
In his later signed statement, Mr McCool expressly denied giving such evidence to the investigator and gave direct evidence which corroborated the evidence of the applicant. In particular, Mr McCool directly corroborated the applicant’s evidence that Ms Watts regularly yelled and screamed at the applicant, would ignore and refuse to answer their questions, told them that she was their sole point of contact and that there would be consequences if they contacted senior managers without her knowledge, ignored the applicant’s attempts to explain what occurred, introduced the applicant and Mr McCool in a belittling manner and slapped her hand on paperwork on a table. Mr McCool gave evidence that he could hear Ms Watts screaming at the applicant from his office in the same section. Mr McCool gave evidence as such behaviour by Ms Watts was becoming more frequent and the applicant appeared to be becoming withdrawn and not his usual self, that Mr McCool felt concern for the applicant and spoke with the applicant several times to check of he was okay.
I accept that significant parts of the applicant’s allegations against Ms Watts are directly corroborated by the evidence of Mr McCool.
I find Mr McCool’s evidence to be particularly compelling. Mr McCool was located in the same section as the applicant and Ms Watts, and likely had a good opportunity to observe Ms Watts’ behaviour towards the applicant.
I note that the evidence as a whole demonstrates that the applicant has generally consistently reported the nature and specific incidents of the alleged bullying and harassing behaviour. In particular, the evidence of the applicant’s treating practitioners, the independent medical experts, the applicant’s wife, Mr McCool and Mr Roberts all indicate that the applicant reported similar conduct by Ms Watts.
I accept that the applicant did not report the alleged bullying and harassment to his general practitioner until after he received formal written notice of the extension of his probationary period. That delay could be explained by the evidence of Dr Clark who noted that the applicant reported that that incident was the “straw that broke the camel’s back”.
However, as stated above, I found the evidence of Mr McCool to be particularly compelling.
Having regard to the evidence as a whole, particularly the evidence of Mr McCool, I prefer and accept the evidence of the applicant and I feel a real sense of persuasion that the alleged incidents of behaviour by Ms Watts and Mr Jammo did in fact occur.
Accordingly, I do not accept the findings of the investigator.
For the above reasons, I accept the factual allegations in relation to the alleged stressors described by the applicant in his evidence.
Being satisfied that the events alleged by the applicant did in fact occur, I shall now consider whether the applicant perceived those events to be bullying and harassment behaviour.
In Attorney General’s Department v K[6] (Attorney General’s Department v K), Deputy President Roche summarised relevant authorities in relation to a worker’s perception of real events at work:
“The following conclusions can be drawn from the above authorities:
(a)employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (Chemler) at [40]);
(b)a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Leigh Sheridan v Q-Comp [2009] QIC 12);
(e)there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegandv Comcare Australia [2002] FCA 1464 at [31]), and
(f)it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.” [7]
[6] [2010] NSWCCPD 76.
[7] [2010] NSWCCPD 76, [52].
The applicant’s evidence is that he perceived the alleged conduct of Ms Watts and Mr Jammo to be bullying and harassment and that it caused him to feel bullied, harassed, insulted, patronized, humiliated and diminished.
Mr McCool directly corroborated a number of incidents of conduct of Ms Watts, such as screaming, yelling and ignoring the applicant’s attempts to explain. Mr McCool stated that he observed Ms Watts to treat the applicant in a hostile manner.
Mr Roberts gave evidence that the applicant confided that Ms Watts often screamed at him.
Ms Whittard stated that during the applicant’s employment with the respondent, the applicant often told her that Ms Watts bullied and harassed the applicant on a daily basis, treated him ”like a child that knows nothing”, spoke to him in an ‘aggressive, rude and patronising manner’, regularly embarrassed him in front of colleagues, effectively saying that the applicant ‘knows nothing’ because he was not from TAFE and verbally abused him.
The treating practitioners reports also record the applicant’s reported perception that he was subjected to bullying and harassment by Ms Watts.
Having regard to the evidence as a whole, I am satisfied on the balance of probabilities that the alleged incidents of behaviour by Ms Watts and Mr Jammo were real and did in fact occur and, further, that the applicant perceived those events to constitute bullying and harassment.

Does the applicant have a psychological injury in accordance with s 4(a) or s 4(b)(i) of the 1987 Act?

It is necessary to determine whether the applicant sustained a psychological injury in accordance with s 4(a) or s 4(b)(i) of the 1987 Act prior to 8 May 2018 (deemed).
Section 4 of the 1987 Act states:
“In this Act:
injury:
(a)means personal injury arising out of or in the course of employment,
(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 of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.”
In Stewart v NSW Police Service,[8] Neilson CCJ referring to his earlier decision of Kirby v Trustees of the Society of St Vincent de Paul (NSW),[9] stated:
“To succeed in this Court, the applicant must prove that the conduct complained of constituted ‘injury’ within the meaning of the Act. Where, as here, a psychiatric injury is alleged the applicant must prove either:
(i)that the nervous system was so affected that a physiological effect was induced, not a mere emotional impulse: Yates v South Kirkby Collieries Ltd [1910] 2 KB 538; Austin v Director-General of Education (1994) 10 NSWCCR 373; Thazine-Aye v WorkCover Authority (NSW) (1995) 12 NSWCCR 304; Zinc Corporation Ltd v Scarce (1995) 12 NSWCCR 566, or
(ii)the aggravation, acceleration, exacerbation or deterioration of a pre-existing psychiatric condition: Austin's case.
Frustration and emotional upset do not constitute injury: Thazine-Aye's case; nor, semble, where a mere ‘anxiety state’: the Zinc Corporation case per Meagher JA at 575B. A ‘straight litigation neurosis’ is not compensable: Karathanos v Industrial Welding Co Ltd [1973] 47 WCR (NSW) 79 at 80. A misperception of actual events, due to the irrational thinking of the worker leading to a psychiatric illness is not compensable: Townsend v Commissioner of Police ( NSWCC, No. 8061/89, McGrath CJ, 17 February 1992, unreported).
It follows that subsequent rationalisation of earlier innocuous events, which rationalisation leads to psychiatric illness is also not compensable. Furthermore, once the applicant has established ‘injury’ she must prove that an incapacity for work resulted therefrom...” [10]
[8] [1998] NSWCC 57; 17 NSWCCR 202.
[9] NSWCC, No.20708/84, 11 April 1997, unreported.
[10] [1998] NSWCC 57, 17 NSWCCR 202, [6].
Further, in Commonwealth of Australia v Smith,[11] Handley JA stated:
“Thus the law does not recognise that emotional and mental problems constitute an injury unless they constitute a psychiatric illness that has been recognised as such by ‘professional medical opinion’.” [12]
[11] [2005] NSWCA 478.
[12] [2005] NSWCA 478, [16].
The issue of causation must be determined on the basis of the facts in each case. The accepted view regarding causation is stated by Kirby J in Kooragang Cement Pty Ltd v Bates[13] (Kooragang):
“The result of the cases is that each case where causation is in issue in a workers compensation claim must be determined on its own facts. Whether death or incapacity results from a relevant work injury is a question of fact. The importation of notions of proximate cause by the use of the phrase ‘results from’ is not now accepted. By the same token, the mere proof that certain events occurred which predisposed a worker to subsequent injury or death, will not, of itself, be sufficient to establish that such incapacity or death ‘results from’ a work injury. What is required is a common sense evaluation of the causal chain. As the early cases demonstrate, the mere passage of time between a work incident and subsequent incapacity or death, is not determinative of the entitlement to compensation.” [14]
[13] (1994) 35 NSWLR 452; 10 NSWCCR 795.
[14] (1994) 35 NSWLR 452; 10 NSWCCR 795, [463].
In relation to the principles regarding the discharge of onus of proof, in Department of Education & Training v Ireland[15] (Ireland) President Keating stated:
“The principles relevant to the discharge of the onus of proof were discussed in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 (16 October 2008) (‘Nguyen’) where McDougall J (McColl and Bell JJA agreeing) said at [44]-[48]:
‘44.A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.
45.Dixon CJ put the matter in different words, although to similar effect, in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 at 305 where his Honour said that ‘[t]he facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’. Although his Honour dissented in the outcome of that case, the words that I have quoted were cited with approval by the majority (Stephen, Mason, Aickin and Wilson JJ) in West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62 at 66. See also Stephen J in Girlock (Sales) Pty Limited v Hurrell [1982] HCA 15; (1982) 149 CLR 155 at 161 – 162, and Mason J (with whom Brennan J agreed) in the same case at 168.
46.It is clear, in particular from West and Girlock, that the requirement for actual satisfaction as to the occurrence or existence of a fact is one of general application, and not limited to cases where the fact in question, if found, might reflect adversely on the character of a party or witness.
47.In Malec v JC Hutton Pty Limited [1990] HCA 20; (1990) 169 CLR 638 Deane, Gaudron and McHugh JJ said at 642-643:
‘A common law court determines on the balance of probabilities whether an event has occurred. If the probability of the event having occurred is greater than it not having occurred, the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred, it is treated as not having occurred.’
48.On analysis, I think, what their Honours said is not inconsistent with the requirement that the tribunal of fact be actually persuaded of the occurrence or existence of the fact before it can be found. On their Honours’ approach, what is required is a determination of the respective probabilities of the event’s having occurred or not occurred. There is nothing in that analysis to suggest that the determination in favour of probability of occurrence should not require some sense of actual persuasion.” [16]
[15] [2008] NSWWCCPD 134.
[16] [2008] NSWWCCPD 134, [89].
In Mateus v Zodune Pty Limited t/as Tempo Cleaning Services[17] (Mateus), Deputy President Roche cited with approval the comments of Kirby J in Whisprun Pty Ltd v Dixon[18] (Whisprun) and stated:
“It is correct, as the Appellant Worker submits, that credit-based findings are not immutable from challenge on appeal. Examples of the circumstances in which successful challenges may be made to credit based findings are set out in the decision of Kirby J in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; (2003) 77 ALJR 1598; [2003] HCA 48 at [98] and [99]:
‘They included cases (1) where the primary judge’s conclusion, although expressed in terms of credibility, was ‘plainly wrong’ as demonstrated by incontrovertible facts or uncontested testimony; (2) where the conclusion was based on evidence wrongly admitted, occasioning a substantial miscarriage of the trial; (3) where the reasons, going beyond credibility, indicated a consideration at trial of irrelevant matters or a failure to weigh all relevant issues; (4) where the circumstances in which evidence was given, relevant to credibility, was unsatisfactory; or (5) where the primary judge had made it plain that credibility considerations or impressions were not determinative for the judgment in question.
There were two further categories that I mentioned in SRA. They are relevant to the present appeal. They were: (6) where the credibility determination ‘leaves untouched other evidence which requires separate evaluation with no obstacle of a credibility finding’ and (7) where, notwithstanding the credibility finding, the ‘extreme and overwhelming pressure’ of the rest of the evidence at the trial is such as to render the conclusion expressed at first instance so ‘glaringly improbable’ or ‘contrary to compelling inferences’ of the case that it justifies and authorises appellate disturbance of the conclusion reached at trial and the judgment giving it effect.’ (omitting footnotes)”[19]
[17] [2007] NSWWCCPD 227.
[18] Whisprun Pty Ltd v Dixon [2003] HCA 48; 77 ALJR 1598.
[19] [2007] NSWWCCPD 227, [62].

Whilst Mateus deals with powers on appeal to overturn an Arbitrator’s findings as to a worker’s credit and is not strictly on point, the decision provides guidance regarding the matters that a Member needs to consider when determining credit issues. The comments make it clear that it is necessary to examine all of the facts and the evidence as a whole, and then assess whether the evidence can be accepted irrespective of any adverse credibility findings.
It is noted that the applicant relies on a description of injury pursuant to s 4(a) or in the alternative s 4(b)(i) of the 1987 Act. That is, a frank injury or the contraction of a disease.
The applicant does not rely on s 4(b)(ii) of the 1987 Act.
I note that the evidence as a whole does not indicate one specific frank injury. No significant event occurred on 8 May 2018 apart from the issue of correspondence to the applicant.
Rather, the evidence seems to be more directed at a psychological injury in the nature of contraction of a disease being the cumulative effect of multiple events during the course of the applicant’s employment with the respondent.
The applicant bears the onus of proof. In order for the applicant to discharge the onus that he sustained an injury, I must ‘feel an actual persuasion’ of the existence of that fact.
There is evidence that the applicant had psychological symptoms, psychological diagnosis, treatment by medication and psychological/psychiatric treatment prior to the applicant commencing employment with the respondent. I have detailed above the evidence in Dr Tablante’s clinical notes which included: a diagnosis of “reactive depression” with some symptoms of anxiety treated with counselling, medication and psychiatry in 2007; “ongoing pain and depression” in April 2009; symptoms including depression, anxiety, lack of sleep and mood swings in December 2014 in the context of alleged bullying and harassment at work; symptoms including depression, anxiety, inability to concentrate and mood swings in the context of alleged bullying and harassment at work, treated with counselling, medication and psychiatry in February and March 2016.
The respondent’s counsel submitted that references in Dr Tablante’s clinical note dated 4 February 2016 to “recurrent anxiety, “which has been recurring” and “This occurs approximately yearly...,” (my emphasis) evidences that the applicant experienced regular annual psychological symptoms (which the respondent submits were causally connected to the applicant’s current psychological condition). Having carefully read Dr Tablante’s clinical note dated 4 February 2016, I do not think that it reflects the meaning that the respondent’s counsel suggested. I accept that there is some ambiguity, although it seems to me most likely that the clinical note was intended to mean that the “associated depression and recurrent anxiety” arises from annual or repeated bullying and harassment and false allegations in relation to the applicant’s performance in the applicant’s workplace.
In any event, I note that there is no evidence of the applicant experiencing any psychological symptoms between April 2009 and December 2014.
Significantly, in correspondence dated 30 March 2022, Dr Tablante referred to his entries of psychological symptoms for the applicant for 23 April 2007, 13 May 2007 and 22 February 2016 and stated that the symptoms were “short term” and that the applicant “was not experiencing any psychological symptoms when he commenced working for TAFE”. This evidence is crucial.
The applicant described psychological symptoms which commenced during his employment with the respondent in the context of him being bullied and harassed in the workplace, and described the impact of those symptoms on him and his family relationships.
The applicant’s wife corroborated the applicant’s psychological symptoms in the context of his reports of being bullied and harassed in the workplace, and the impact of those symptoms on the applicant and his family relationships.
It appears from the various clinical notes that Dr Tablante clearly had knowledge of the applicant’s complete history of psychological symptoms, diagnoses and treatment which pre-dated the applicant’s employment with the respondent. As the applicant’s general practitioner, Dr Tablante continued to assess and treat the applicant on an ongoing basis. His certificates issued in May and June 2018 diagnosed an adjustment disorder with recurrent anxiety caused by “harassment/bullying from his manager for 4 months”. On 17 May 2018, Dr Tablante recorded in his clinical notes that the applicant was “still with ongoing adjustment disorder with depressed and anxious mood due to alleged bullying by direct manager”. In subsequent certificates, Dr Tablante stated a diagnosis of adjustment disorder with acute depression and anxiety disorder. During 2018 and 2020, certificates referred to a diagnosis of adjustment disorder with acute depression with anxiety disorder.
I note the respondent’s submissions that the reference in Dr Tablante’s WorkCover Certificate of Capacity dated 9 May 2018 to “recurrent anxiety” anxiety and the reference in Dr Tablante’s clinical notes dated 17 May 2018 to “still with ongoing adjustment disorder with depressed and anxious mood” (my emphasis) demonstrate that the applicant’s psychological condition was continuing from 2016 and prior to that time. Although it is somewhat ambiguous, a careful reading of Dr Tablante’s clinical notes, seems to indicate to me that Dr Tablante was most likely referring to, and those words in fact related to, the applicant’s report of psychological symptoms from ongoing bullying and harassment by Ms Watts over a period of four months, rather than symptoms continuing from 2016. That view seems to be consistent with other evidence. Firstly, there is no evidence of the applicant experiencing any psychological symptoms between March 2016 and May 2018 when the applicant first reported psychological symptoms in the context of bullying and harassment at the respondent’s workplace. Secondly, in his letter dated 30 March 2022, Dr Tablante expressly stated that the applicant’s psychological symptoms in 2007, 2009 and 2016 were “short term” and that the applicant “was not experiencing any psychological symptoms when he commenced working for TAFE”.
I accept that Dr Tablante’s report dated 30 March 2022 does not directly deal with causation of the applicant’s current psychological condition, but it does provide evidence of the factual circumstances which likely formed a basis for the opinions of Dr Tablante in relation to the issue of causation.
According to Ms Dillen, the applicant’s symptoms developed within three months of commencing employment with the respondent in the context of workplace bullying and harassment. Ms Dillen’s report dated 12 March 2021 refers to a “thorough clinical history taking” but the report referred only to the applicant having a history of post-traumatic stress disorder in 2004. She opined that the applicant had completely recovered from post-traumatic stress disorder in 2004 and that had no relationship with his current psychological condition. I note that Ms Dillen was not aware of the applicant’s psychological history between 2007 and 2016, so perhaps less weight can be given to her opinion, but given the evidence of Dr Tablante, I do not believe that this omission impacts greatly on her conclusion.
According to Dr Tsang, the applicant had major depressive disorder and general anxiety disorder. Dr Tsang also noted post-traumatic stress disorder in the context of the of workplace bullying and harassment by Ms Watts. Dr Tsang stated that the applicant had “long been in complete remission from his past PTSD caused by his 2004 accident from psychiatric point of view and should not have had a significant predisposing and precipitating factor for his current injury” and noted that the current reported trauma was completely different in “nature, source and setting” to the 2004 trauma. Again, despite him not obtaining a history of psychological issues between 2007 and 2016, this does not significantly impact on his opinion when one has regard to Dr Tablante’s evidence.
Dr Roberts diagnosed a major depressive disorder due to bullying and harassment in the workplace, which may have developed from an adjustment disorder with mixed, depressed and anxious mood. Whilst it is apparent that Dr Roberts was aware of the applicant’s psychological history in 2004, there is no evidence that Dr Roberts was specifically aware of, nor took into account in forming his opinion, the applicant’s psychological history from 2007 to 2016. As before, I do not consider that the absence of this history is crucial, when Dr Tablante’s evidence is taken into account.
Initially, Dr Clark accepted that the applicant had an adjustment disorder with mixed anxiety and depressed mood in the context of being bullied and harassed in the course of his employment.
Significantly, in a supplementary report dated 31 March 2022, Dr Clark stated that he had received records which indicated that the applicant had significant past psychological difficulties and psychiatric treatment, including medication and counselling, which contradicted the history that he obtained, so he had issues with the veracity or truthfulness of any information provided by the applicant. However, he did not explain why the evidence of Dr Tablante should not be accepted. In the circumstances, less weight should be given to his opinion.
The High Court said in Paric v John Holland (Constructions) Pty Ltd[20]:
“9. It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence (Ramsay v. Watson (1961) 108 CLR 642). But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal (Wigmore on Evidence, (1940) 3rd ed., vol.II, 680, p.800; 2 Wigmore, Evidence 680 (Chadbourn rev. 1979), p.942) to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.
10. As Wigmore states (at pp.941-942, Chadbourn rev.), ‘the failure which justifies rejection must be a failure in some one or more important data, not merely in a trifling respect’.”[21]
[20] [1985] HCA 58.
[21] [1985] HCA 58, [9]-[10].
I accept that, with the exception of Dr Tablante, the treating practitioners and independent medical experts did not have the applicant’s complete psychiatric history. However, in the circumstances, that is not fatal to the applicant’s claim.
Dr Tablante had a complete psychological history of past psychological symptoms prior to commencement of the applicant’s employment with the respondent.
Dr Tablante’s evidence that the applicant’s previous psychological symptoms were short term and that he had no psychological symptoms when he commenced employment with the applicant is supported by fact that there is no evidence of psychological symptoms during significant periods of time. In particular, there is no evidence that the applicant had psychological symptoms for significant periods of time immediately before he commenced employment with the respondent.
As the applicant’s treating practitioner, with a full knowledge of the applicant’s psychological history, I consider that Dr Tablante would be in the best position to understand the applicant’s symptoms and their cause. There is no evidence to suggest that the applicant had any psychological symptoms or required treatment after 2016 and prior to the issues that he encountered at the respondent. Having regard to the evidence of Dr Tablante, I find that the applicant’s pre-existing psychological history is unrelated to his present psychological condition.
Further, I do not consider that the failure of Dr Roberts and the applicant’s treating practitioners to consider the applicant’s past psychological history was significant or important in the context of the applicant’s claim.
For these reasons and having regard to the evidence as a whole, I prefer the evidence of Drs Tablante, Tsang and Roberts.
I do not accept the respondent’s submission that the applicant’s psychological symptoms are related to a psychological condition which he had prior to commencing employment with the respondent. That is not supported by the evidence. Dr Tablante’s evidence is that the applicant’s previous psychological symptoms were short term and that the applicant had no psychological symptoms at the time he commenced employment with the respondent. There is no evidence that the applicant had any psychological symptoms between 2016 and when he reported psychological symptoms in the context of his employment with the respondent.
Considering the evidence in its entirety, I do not believe that the applicant’s failure to correctly report his past psychological history compromises the rest of his evidence, which has been significantly corroborated by his wife, colleague and medical evidence.
The evidence as a whole confirms that the applicant is suffering from a serious psychological condition.
There is no significant evidence that the applicant sustained a frank injury on 8 May 2018.
Having regard to the common-sense test in Kooragang and the principles discussed in Ireland, and having regard to the evidence as a whole, I am satisfied that the applicant suffered a psychological injury being a major depressive disorder by a disease process and that his employment was the main contributing factor to the psychological injury. There is no persuasive evidence to suggest any other cause.
Accordingly, I find that the applicant did suffer a psychological injury in terms of s 4(b)(i) of the 1987 Act, being a major depressive disorder, and that his employment was the main contributing factor to the psychological injury.
I find that the applicant did not suffer a psychological injury in terms of s 4(a) of the 1987 Act.

Was the applicant’s psychological injury wholly or predominantly caused by reasonable action with respect to performance appraisal or discipline?

I now need to consider whether the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal or discipline.
Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
An employer who seeks to make out a defence pursuant to s 11A carries the onus of establishing that defence: Pirie v Franklins Ltd[22] and Department of Education and Training v Sinclair.[23]
[22] [2001] NSWCC 167; 22 NSWCCR 346.
[23] [2005] NSWCA 465; 4 DDCR 206.

Wholly or predominantly caused

The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused”. The test of causation to be applied is that described in Kooragang Cement Pty Ltd v Bates;[24] that is a common-sense evaluation of the causal chain.
[24] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
“Wholly” and “predominantly” are separate concepts. A finding of one or the other needs to be considered. In Smith v Roads and Traffic Authority of NSW[25] the Arbitrator at first instance made a finding that the subject injury was “wholly” or “predominantly” caused by action taken by the respondent employer. Snell ADP said that the concepts “wholly” and “predominantly” are different concepts and if such findings were to be made “it needed to be one or the other”.[26]
[25] [2008] NSWWCCPD 130.
[26] [2008] NSWWCCPD 130, [62].
In relation to the term “performance appraisal”, in Dunn v Department of Education and Training[27] (Dunn), Geraghty J referred to an earlier decision of his in Irwin v Director-General of Education[28] (Irwin) where his Honour had said such appraisal should be “formal, somewhat like and examination or a test rather than an extended or continuing assessment”. In Dunn, his Honour concluded that an enhancement program to which a teacher had been subjected for over a year was not performance appraisal. The reasoning of his Honour in Irwin as followed in Dunn was also cited with approval by his Honour Nielson CCJ (as he then was) in Bottle v Wieland Consumables Pty Ltd.[29]
[27] [2001] NSWCC 11.
[28] NSWCC 14068/97, 18 June 1998.
[29] [1999] NSWCC 32.
In relation to the term “discipline”, the respondent’s counsel referred me to the decision of Nielson CCJ in Kushwaha v Queanbeyan City Council[30] (Kushwaha) and submitted that, in accordance with that decision, “discipline” should be given a broad meaning. In Kushwaha, Nielson CCJ stated:
“It can be seen, therefore, that the primary meaning of ‘discipline’ is learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of punishment, chastisement is secondary to the primary meaning although this word is often used in this sense in popular speech. It is this narrow meaning which weighed on my mind in Bottles’ case. However, the word used in an Act of Parliament must be given its full meaning, unless the context otherwise requires. Such a context does not appear to me to be called for in the interpretation of s 11A(1).”[31]
[30] [2002] NSWCC 25; 23 NSWCCR 339.
[31] [2002] NSWCC 25; 23 NSWCCR 339, 152].
I note that the correctness of the broad definition of the term “discipline” in Kushwaha has been questioned in a number of more recent cases. For example, in George Weston Foods Ltd v Bogdanoski[32], Roche DP observed:
“Even if it is accepted that the definition of ‘discipline’ in Kushwaha is correct, which is open to serious doubt in light of recent authorities on statutory interpretation, there is no evidence that ‘learning and instruction’ imparted to Ms Bogdanoski was the whole or predominant cause of her psychological injury.”[33]
[32] [2011] NSWWCCPD 62.
[33] [2011] NSWWCCPD 62, [173].
In Webb v State of New South Wales[34] (Webb), Wood DP considered authorities in relation to the interpretation of “discipline” and the assessment of whether action constituted “discipline” for the purposes of s 11A of the 1987 Act.[35] Wood DP noted that regardless of the proper interpretation of the term “discipline”, it was necessary to consider the proper characterisation of the action or event in question:
“No aspect of the steps actually taken in the whole process which did occur had the capacity, of their own, to constitute being disciplinary in nature, as ‘discipline’ has been defined in the various authorities referred to above. This is so whether you apply the broader meaning initially enunciated by Neilson CCJ in Kushwaha, or take the narrower approach suggested by more recent authority.”[36]
[34] [2019] NSWWCCPD 50.
[35] [2019] NSWWCCPD 50, [104]-[116], [139]-[141].
[36] [2019] NSWWCCPD 50, [118].
In Hamad v Q Catering Limited,[37] the respondent employer was unable, on the available evidence and in the absence of any medical evidence dealing appropriately with the topic, to discharge its onus in proving the worker’s psychological injury resulted ‘wholly or predominantly’ from its reasonable action to be taken or proposed to be taken with respect to discipline. The effect of that decision is that in many cases medical evidence will be required to satisfy the causation element necessary to make out a s 11A defence. Where factual evidence is adequate by itself, it is often in cases where there is an allegation of a single event which has given rise to psychological injury.
[37] [2017] NSWWCCPD 6.

The applicant’s evidence is that the conduct of Ms Watts and Mr Jammo, which I have accepted occurred, caused psychological injury. The conduct included Ms Watts acting in an aggressive manner towards the applicant; screaming and yelling at the applicant; and belittling, demeaning and humiliating the applicant.
The respondent’s counsel submitted that the applicant’s failure to report psychological symptoms prior to being given formal notice of extension of his probationary period on 8 May 2018 indicates that the applicant’s psychological injury was wholly or predominantly caused by performance appraisal and discipline. I do not accept that to be the case because, Mr McCool and the applicant’s wife gave evidence which indicates their concern for the psychological welfare of the applicant during the course of his employment prior to 8 May 2018.
Further, the respondent’s counsel submitted that I should not accept the applicant’s evidence, because his credit is adversely affected by his failure to accurately report his previous psychological history to Ms Dillen, Dr Tsang and the independent medical experts. I note that the applicant has not offered any explanation in this regard. The applicant’s solicitors have explained the applicant’s failure to address the issue by providing a further statement of evidence, being their concern for and potential risk to the applicant’s ongoing mental health. On that basis, and having regard to the evidence as a whole, I make no adverse finding in relation to the credit of the applicant.
Considering the evidence in its entirety, I do not believe that the applicant’s failure to correctly report his past psychological history compromises the rest of his evidence, which has been significantly corroborated by his wife, colleague and medical evidence.
Mr Tablante initially made a psychological diagnosis on the applicant’s reports of being bullied and harassed in the respondent’s workplace by his manager over a period of several months.
That is consistent with the evidence of the applicant’s other treating practitioners and the evidence of Dr Roberts.
For the reason that I have explained above, I give little weight to the opinions of Dr Clark.
It is clear from the evidence, particularly the evidence of Ms Watts, and I accept, that the applicant was the subject of performance appraisal and discipline during his employment with the respondent. Ms Watts attempted to address the applicant’s work performance and conduct on various occasions during his probationary period and, finally, extended the applicant’s probationary period on the basis of a need for him to address performance and conduct objectives.
The respondent’s counsel submitted that the respondent’s actions with respect to performance appraisal or discipline were the whole or predominant cause of the applicant’s psychological injury.
I am prepared to accept that some of the respondent’s actions with respect to performance appraisal or discipline may have partly contributed to or been causative of the applicant’s psychological injury. However, I am not satisfied that they were the “whole or predominant cause” of the psychological injury because I find that this is not borne out by the applicant’s evidence or the medical evidence which consistently referred to specific incidents of conduct by Ms Watts during the period of the applicant’s employment, which the applicant perceived to be bullying and harassment.
Dr Tablante’s certificate dated 9 May 2018 diagnosed adjustment disorder with recurrent anxiety caused by “harassment/bullying from his manager for 4 months” and his clinical notes dated 17 May 2018 stated the diagnosis was “due to alleged bullying by direct manager Patient always reminiscing about the situation of always being put down despite doing all the hard work”.
Ms Dillen’s report dated 12 September 2018 stated that when the applicant first attended her on 4 July 2018:
“he described in a lot of detail what appeared to be systematic, persistent bullying behaviour from his manager, Ms Watts. The applicant described various occurrences of his manager speaking to him rudely and aggressively and not being clear in her direction and instruction giving. The applicant said that he felt that nothing he did was good enough for his manager and he described feeling confused and scared working with her because of her mostly verbally abusive and volatile interactions with him and other staff members...”.
Ms Dillen diagnosed adjustment disorder with depressed and anxious mood which she believed had developed within three months of the applicant commencing employment with the respondent. In her opinion “unreasonable behaviours and behaviours of Ms Watts” was the main contributing factor to the applicant’s psychological injury. Ms Dillen’s subsequent reports noted ongoing psychological symptoms which she believed was caused by the behaviours of Ms Watts.
Dr Tsang also noted the applicant’s description of bullying and harassment by Ms Watts and diagnosed major depressive disorder “precipitated by his moral injuries from his work situation”.
Dr Roberts’ report dated 12 June 2019 noted the applicant reported that his manager: was “narcissistic”; introduced him and a colleague as “new”, not from TAFE and “know nothing”; spoke to him and his colleague like school children and micromanaged them; repeatedly checked on him and he had to sneak out to have a conversation; did not permit him to contact other managers; screamed at him, particularly in response to an email he had sent to another manager; picked on him for issues that he considered unreasonable; berated him and nothing he said to her would appease her anger; would not listen to him and then sent an email criticising him to a third party; would demand that he drop everything and come into her office; verbally “punched and punched and verbally bashed”; spoke to him in a school schoolmarm type fashion; sought to represent his work as her own; placed him under pressure to the extent that he was fearful of leaving his desk and on one occasion felt compelled to urinate in a cup because he was so anxious that he would not make it to the toilet in that context, and stated that she wanted him to be there for his experience but then berated him for it. Dr Roberts noted that the applicant explained that his six-month probationary period was extended without explanation and he had difficulty accepting that because he had never been required to participate in a performance review. Dr Roberts diagnosed major depressive disorder consequent upon the circumstances to which the applicant was subjected in the workplace.
The medical evidence indicates that the significant causative factors of the applicant’s psychological injury were reported behaviours of Ms Watts which were in the nature of Ms Watts acting in an aggressive manner towards the applicant; screaming and yelling at the applicant; and belittling, demeaning and humiliating the applicant.
Having regard to the medical evidence and the evidence as a whole, I consider that the nature and context of those behaviours of Ms Watts was such that they fell outside of performance appraisal and discipline and could not be properly regarded as being wholly or predominantly taken by or on behalf of the respondent with respect to performance appraisal and discipline.
In the circumstances, I find on the balance of probabilities that the applicant’s psychological injury was caused by actions of Ms Watts which I have found to have occurred, and further that the applicant’s psychological injury was not wholly or predominantly caused by action taken by or on behalf of the respondent with respect to performance appraisal or discipline.

Reasonableness

To successfully raise a defence under s 11A, the respondent must not only show the requisite causal connection between its actions and the applicant’s injury, it must also satisfy the Commission that its actions were reasonable.
Considering the meaning of reasonableness, Geraghty J in Irwin v Director-General of Education[38] said:
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[38] Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, (unreported).
In Ivanisevic v Laudet Pty Ltd,[39] Truss CCJ said:
“In my view when considering the concept of reasonable action, the Court is required to have regard not only to the end result but to the manner in which it was effected.”
[39] Unreported, 24 November 1998.
These passages were quoted with approval by Foster AJA (Sheller and Santow JJA agreeing) in Commissioner of Police v Minahan[40] where his Honour said:
“I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgment and in his Honour’s judgment. The words ‘reasonable action’, in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon breach of a duty of care.”[41]
[40] [2003] NSWCA 239; 1 DDCR 57.
[41] [2003] NSWCA 239; 1 DDCR 57, [42].
In Ritchie v Department of Community Services[42] Armitage J, said:
“It is apparent that the test in this case is an objective one where one must weigh the consequences of the Respondent’s conduct against the reasons given for it. It follows of course from the objective nature of the test that the evidence given by the applicant as to the perceived unreasonableness of the Respondent’s conduct or from the Respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue.”[43]
[42] [1998] NSWCC 40; (1998) 16 NSWCCR 727.
[43] [1998] NSWCC 40; (1998) 16 NSWCCR 727, [47].
Reasonableness is judged having regard to fairness appropriate in the circumstances, including what went before or after a particular action.[44] In Jackson v Work Directions Australia Pty Ltd,[45] Armitage J stated “only if the employer’s action in all the circumstances was fair could it be said to be reasonable.”
[44] Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454.
[45] [1998] NSWCC 45; 17 NSWCCR70.
In Northern New South Wales Local Health Network v Heggie,[46] Sackville AJA set out the following statements of principle regarding s 11A:
[46] [2013] NSWCA 255; 12 DDCR 95.
“The following propositions are consistent both with the statutory language and the authorities that have construed section 11A(1) of the WC Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for section 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”[47]
[47] [2013] NSWCA 255; 12 DDCR 95, [59].
If I am wrong regarding the issue of causation, and the applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by the respondent with respect to performance appraisal or discipline, then I am not satisfied that the actions were reasonable.
I have accepted that during the applicant’s employment, Ms Watts engaged in specific conduct towards the applicant which included her: acting in an aggressive manner towards the applicant; screaming and yelling at the applicant; and belittling, demeaning and humiliating the applicant. Such a manner of treatment was inappropriate and unreasonable in the workplace, even if it was directed towards performance appraisal or discipline of the applicant.
I am not satisfied that such conduct was reasonable.
Accordingly, the onus of establishing the defence in s 11A(1) has not been discharged by the respondent for the reasons given above.
The claim for lump sum compensation will be referred for assessment of whole person impairment by a Medical Assessor.

Summary

In summary, I make the following findings:
(a)    the applicant sustained a psychological injury in the course of his employment with the respondent on 8 May 2018 (deemed);
(b)    the applicant’s employment was the main contributing factor to his injury, and
(c)    the applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal or discipline.
Accordingly, the following orders are made:
(a) I remit the matter to the President for referral to a Medical Assessor for assessment of the whole person impairment due to psychological injury with a deemed date of injury of 8 May 2018.
(b) The documents to be reviewed by the Medical Assessor are:
(i)the ARD and attached documents;
(ii)the Reply and attached documents;
(iii)Application to Admit Late Documents filed on behalf of the applicant, dated 5 April 2022, and
(iv)Application to Admit Late Documents filed on behalf of the respondent, dated 31 March 2022.

[2022] NSWPIC 275

16 May 2022