Williams v Cubbyhouse Childcare NSW Pty Ltd

[2021] NSWPIC 450

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Williams v Cubbyhouse Childcare NSW Pty Ltd [2021] NSWPIC 450
APPLICANT:	Dina Williams
RESPONDENT:	Cubbyhouse Childcare NSW Pty Ltd
MEMBER:	Deborah Moore
DATE OF DECISION:	11 November 2021
CATCHWORDS:	WORKERS COMPENSATION -  Accepted psychological injury; worker claimed it resulted from bullying and harassment by her manager; respondent claimed the injury was as a result of reasonable action by the employer with respect to discipline; the evidence supported the finding that the worker failed to fulfil her duties and that disciplinary action was appropriate; Held - the disciplinary action was reasonable; section 11A of the Workers Compensation Act 1987 defence made out; award for the respondent.
DETERMINATIONS MADE:	1.     Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

1. The applicant, Dina Williams, was employed by the respondent, Cubbyhouse Childcare NSW Pty Ltd, as a childcare worker. She commenced employment as a trainee in 2010 and eventually became an area manager for a number of centres throughout Sydney and the Central Coast.

2. By an Application to Resolve a Dispute (the Application) registered in the Commission on 13 August 2021 she claimed weekly benefits and s 60 expenses as a result of “primary psychological injuries arising out of or in the course of her employment with the respondent. 22 January 2021 is the deemed date of injury, being the last date worked.” The applicant in fact ceased work on 21 January 2021.

1. No details of the specific aspects of her employment which caused the claimed injury were provided.

2. Nevertheless, liability was initially accepted by the respondent’s insurer, Guild Insurance Limited, and provisional payments of weekly compensation were made up to a date in June 2021, the precise date uncertain.

3. By a s 78 Notice dated 19 May 2021, liability was declined on the basis that

   “whilst you suffer from a work- related psychiatric condition, this condition was wholly or predominantly caused by the action taken or proposed to be taken by your employer with respect to performance appraisal and/or discipline in accordance with section 11A of the Workers Compensation Act 1987.”

ISSUES FOR DETERMINATION

1. The parties agreed that Ms Williams had sustained a psychological injury arising out of and in the course of her employment, consistent with the s 78 Notice.

2. The issue initially was whether the injury was wholly or predominantly caused by the employer’s actions with respect to performance appraisal and/or discipline in accordance with s11A of the Workers Compensation Act 1987 (the 1987 Act). This was in line with the Independent Medical Examiners (IME’s) relied upon by each party, namely Dr Hong for the applicant and Dr Smith for the respondent.

3. At the hearing however, Counsel for the applicant submitted that the primary cause of the applicant’s injury was as a result of ‘bullying and harassment’ from Ms Williams’ supervisor, Ms Abby Revill, consistent with the applicant’s statement and the report from her treating psychologist.

4. The parties were unable to agree on the  pre-injury average weekly earnings (PIAWE) and also indicated that the applicant may well have been incorrectly paid for the period from January to a date in June 2021, either 7 or 22 June, such that it was agreed that if the applicant was successful, it would be appropriate to make an award from 22 January 2021 (the applicant having in fact ceased work on 21 January) with credit for any payments made. A general order pursuant to s 60 was also sought.

PROCEDURE BEFORE THE COMMISSION

1. 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.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

(a)    Application and attached documents and;

(b)    Reply and attached documents.

THE EVIDENCE DISCUSSED

The applicant’s evidence

1. In her initial statement dated 29 March 2021 obtained by the respondent’s investigator, Procare, Ms Williams said:

   “I have been employed by Cubby Oosh for 11 years. I started as a trainee in 2010 and then about 2 years later I changed to a Supervisor at one of the day care centres. I worked in that role for about 4 or 5 years. Since 2016 I have worked as an Area Manager.

   My duties as an Area Manager are to ensure compliance of the centres such as maintaining staff assessments and ratings of centres.

   I would normally be responsible for 12 to 14 centres as an Area Manager…

   My supervisor is Abby Revill, she is the General Manager. She started in this role around the beginning of 2020…

   I was initially excited as there were going to be changes.

   We had 3 Area Managers at that time including myself. We had some concerns about the changes and job security. It was reduced to 2 Area Managers for NSW. This put extra work load on me from 2020.

   They hired a new Area Manager, but she was inexperienced. She had training in head office for several months in 2020. So during that time I had to handle her centres, which increased my workload.

   So when we had 3 Area Managers we would have about 8 centres each to manage. But since the other lady went in to training, it increased to about 14 centres. This was around mid 2020.

   Also in that time I refused to take some of the centres because I would request a check list from the extra centres as well as a proper case hand-over. But this was declined which meant I was not properly briefed on the new centres.

   I started feeling stressed from around this time. There were some difficult centres and staff to deal with. The records at the new centres were not up-dated. So I had to take on all these extra responsibilities.

   The blame started to be put on me for these new centres which I had to take on around the middle of 2020. So Abby started putting the blame on me in terms of a lot of situations.

   Abby would put on me, for example, failure to comply with mandatory reporting requirements. This happened in December last year.

   As you can see today while you are interviewing me, my hands are shaking because of stress. I have never had this problem before.

   I used to enjoy my job very much over the 11 years and got on well with all the staff and management, I had good positive relationships and even some friends from work outside of work.

   I have never in the past been subject of any formal or informal performance management or disciplinary issues at work. It all started from last year after the GM was replaced, as well as taking on the extra work loads at the additional centres I had to manage.

   I have prepared my own statement which I would like to include here below in italics:

   I have been working in the company for 11 years, started as a trainee and was offered a position from educator, supervisor and I am the Area Manager in the last 6 years. I managed Long Day Care Centre, nine Before and After School Care. Last year there are some changes. We have a new General Manager and her name is Abby Revill. From last year September 2020, I have been very stress, feeling anxious, and fear of losing my job but continue to do my responsibilities I requested a meeting to HR Manager but it was ignore. My self-confident and motivation are very low and leads to depression because of General Manager's accusations, lying and bullying at work place in several incidents and also information stated on the first and final warning letter I read email on 22nd of January 2021 at 2:30pm.

   My response with first & final warning letter:

   Failure to comply with mandatory reporting requirements.

   December 14, 2020 -As I repeatedly told Abby and Michelle (HR) that I do not have the information and what should I report. This is also the day that I had a meeting with Abby Revill and Ian (OOSH Head) that put me in a lot of stress and anxiety and I have to take stress leave for two days December 15 & 16, 2020. The nominated supervisor was part of the ratio and in/out of the office and because on the same day I am not in the right state of mind, I have asked the supervisor to send me an email if the incident is reportable, I did checked my emails that night and no email sent. That week Friday, I received an email from Abby requesting for another meeting with Ian due to non-reportable incident, which put me again into stress and anxiety.

   Failure to oversee the staffing of each centre to meet the legislative requirements as defined in the Education and Care Services and National Law and Regulations

   Abby is accusing me that I let the service out of ratio, which is there is no proper communication between the staffing officers and did not get any confirmation. The situation at Surveyors Creek on 17th of August 2020, I was told to cover the ratio in the last minute while I am having a meeting at BHN and arrived at Surveyors Creek at 4:15. This happened in Preston on the 30th of October 2020. I have questioned Abby why during those times no one is accountable.
   This situation again happened between Goda (Quality Manager) and Amanda (Staffing Officer). I have emailed Abby to find out what action taken in regards to breach in East Hills. I do not have anything against Amanda (Staffing Officer) she is a very nice woman and I have worked with her for many years . I am very concerned on how Abby handle the situation and there has been false accusations, bias/playing favourites going on in her management.

   Failure to provide ongoing support and education to staff, with particular attention to the regulatory compliance, supervision practices, policies, and procedures

   -I sent numerous staff memo regarding supervision to all the centres that includes Preston and every staff were inducted as well as when visiting the centres constantly communicating with them about supervision.

   This is about Preston service that I did not go to the service because the staff was stressed about the incident when the child went home on her own. There is nothing written in the policy that Area Manager must go to the centre. She gave me warning for not going there, as an Area Manager I have done my role I communicated with the staff over the phone as wen as the incident was report to NQAITS and Child Protection. And I followed procedure by [illegible]… to attend the meeting the following day to conduct the training and investigation. She did not question the supervisor and what she did Abby focused on me on what I have done wrong. There is a similar incident happened with different service and I was not ask to go there. She is targeting me instead of sorting the problem.

   Failure to act as a liaison between the NS, staff and the licensee and represent Cubby OOSH in a professional manner

   For 11 years employed at Cubbyhouse I maintained my good relationship with the owner, office staff, co-area managers, centre supervisors, staff, children and parents including my good relationship with school principals and school admin.

   If Abby checked the I Auditor no one is doing the Quality Assurance Checklist. Some of the GM checklist done by Goda (Quality Manager) and Abby (General Manager) are not accurate, She told Area Managers that she would send/share the General Manager Audit to us and just share it to us on 20th of January 2021. She expected me to do checklist with all the centres that I do not have access, I am doing my checks in when I visited the centres because there no clear instruction.

   Failure to ensure that accessibility and correct Junctions of all fire alarms, and that the rehearsal of emergency and evacuation procedures (lockdowns and evacuations) are conducted in accordance with Regulation 97 of the Education and Care Service National Regulations.

   During the department visit Samantha (Assessor) did not breach Surveyors Creek we have explained to her due to constant changes of NS as well as AM she checked the documentation of lockdown and fire drill when I was the AM of Surveyors Creek lockdown and fire was done. During the time of the previous AM was not done, I was given a warning letter for this and I refused due to not having the proper turn over from the previous Area Manager.

   You do not feel you can meet Child Protection Mandatory Reporting requirements without all the information at hand. You advised you sought more information from staff but then acknowledged that you failed to follow this reporting up with staff members and complete the required reporti ng. You also failed to escalate this issue. The underlined information Abby wrote is incorrect. My response is I DO NOT have information at all. In addition to that, I am not aware if it is a child protection issue. How can I report it? Did Goda (Quality Manager) receive first and final warning letter as well where the supervisor reported it to her on Wednesday-16th of December 2020 (while I was on my stress leave) and Goda reported the incident to department on Friday-18th of December 2020? Did the staff involved receive warning letter/terminated who knew about the incident and did not report straight away and wait for months before reporting? Why I am the blamed for this? f did not get a reply from Abby regarding my questions.

   14th of December 2020-ltenerary

   Contacted Sharon in the morning and called Layla to make sure to arrive at Preston on time to get the keys from Sharon.

   Communicate with Erica regarding the removal confirmation

   Contact Maxine from Dalmeny to confirm the removal date and keys from Dalmeny

   Contact Colin to confirm the dates of removal for Kellyville Ridge and Dalmeny

   Head Office work on Preston breach with Gada was told to submit the documents on the day.

   Meeting with Ian and Abby Revi/1 which put into a lot of stress and anxiety- Both were informed in the day of the meeting that I am very stressed still didn't care.

   Drop by at Surveyors Creek to work/scanned on the documents for Prest on.

   The NS was in and out of the office and because I was so busy and trying to finish the documents I told her to send me an email and incident report. And if this is something reportable I can report asap. This is the day that I had meeting with Ian and Abby which put me in a lot of stress and anxiety, Trying to finish my job although I'm not feeling well.

   At 7:08 pm I sent the report to department and check me emails from Surveyors Creek and there is no email sent.

   15th-16th of December 2020

   Stress leave

   17th December 2020

   Texted my itinerary with Abby arrival and departure between centres· because I received an email from her and cc'd Ian (Head of OOSH) stating that her friend Gada (Quality Manager) and the other Area Manager are doing a great job and they have done off the during my absence. It makes feel that I'm not doing my job where I was on stress leave (An intimidation that make me feel less important and undervalued) I was asked to go to Whalan and I replied to her that I'm not sure if able to do it because I will be travelling between East Hills, Dalmeny and drove to Kennard's storage at Castle Hills the take it to Beverly Hills. She wasn't happy because I wasn't able to help at Whalan centre.
   18th December 2020

Visit Surveyors Creek - communicate with the NS (Mary) and I was told that she had informed Goda already about the incident and send the report through email. She mentioned on the same day that why Gada is not informing me regarding their conversation. I have asked Mary why she didn't send the report that night and told that she was so busy and need to be on the floor. I received her email on Friday 4:23pm together with the staff group chat.

Mary reported the incident to Goda on 16th of December 202 (while I'm on stress leave) and just reported the incident on 18th of December Friday 4:06pm to NQAITS. Where the accountability of the Quality Manager, supervisor, witness and the affected person?

Why I was the one given a first and final warning letter which I AM NOT AWARE that is a child protection issue?

The full incident report was sent to me on the 6th of January 2021, that's when Gada went to see Mary at Surveyors Creek. The report is inaccurate and not consistent Mary did not inform me and f wasn't' aware it's a child protection issue. Mary noted on the incident report that I was informed which is untrue. I have asked her to send me the incident report on the 14th of December 2020 but I didn't receive any report.

On the 9th of December 2020 I had a Vacation Care meeting with ALL the staff part of the meeting was Child Protection as part of their Professional Development. Mary (Supervisor) had stated on her report that the incident happened on 7th of December 2020. I had a meeting with them on the 9th of December why it wasn't brought up?

What I feel about the first and warning letter given to me is not acceptable and she is doing this to get rid of me.

In the last months, I felt that she want to get rid of me I am not surprise because every incident in every centre she pointed fingers on me most of the time instead of looking for solution and resolved it. She make sure that it is my fault.

False accusations about Marilyn's at Preston (previous nominated supervisor) that Marilyn told me that she is resigning which is totally a lie, I never talk to about her personal issue and I do not know her.

Abby is lying about speaking to Samantha from the department regarding the visit at Surveyors Creek-I have emailed her to send me the evidence that she breach us about the lockdown and Abby did not reply.

Every small details of what I do you constantly accusing and stressing me, which leads me to mentaf distress, and fearing of losing my job. There is favouritism/bias going on her part as General Manager in most occasions:The NS at KVR admitted that she gave the child a chocolate with nuts and unfortunately, the child is allergic to nuts. I have asked her to issue the warning letter to Erica and she did not issue her a warning letter because she like her. Where I have to deal with parent's complaint that her daughter was given a chocolate and she is allergic to it. Did Goda receive a warning letter for not reporting the incident on the same day at Surveyors Creek after it was reported by NS during her visit? Did Amanda receive a warning fetter miscommunication regarding the shift which leads East Hills out of ratio with Goda?

Forcing me to get into Preston Public School for Marilyn to get her stuff-which I refused because I do not want to be with Marilyn on my own because previously you have accused me about her. The school is closed and I cannot go there because I need to get permission from school principal -refer to email 18th of December 2020.

On the 21st of January 2021 during our meeting with Goda (QM) Abby told me that ‘Don't worry Dina you will not lose your job, everyone can make mistake like I did by putting the incorrect name of the service that's why we lose the tender.’ I felt that she just want me to admit about the child protection issue so she will have grounds to terminate my employment as soon as possible. Goda did not even write that in the minutes she only write what is beneficial for both of them. The following day she sent me the first and final warning letter through email on 22nd of January 2021. The information stated on the first and final warning letter are unfounded and irrelevant.

I am in a lot of stress and anxiety constantly fearing of losing me job affecting my mental health and physically exhausted which leads to depression because of all her accusation, bullying, lying and unfair treatment. I also requested HR for help regarding my concerns on November 1, 2020 but I was not given an opportunity and my questions are not answered.

She hides my accomplishments and focus on what I did wrong.

Abby had been planning to terminate my employment or she tried putting lots of stress, anxiety and bullied me to quit my job. She is making my life difficult with unfair criticism and lying.

There was a meeting which I can't remember the dote with Ian, Abby and myself at fan's office. During that meeting in front of Ian while having a meeting, Abby said that I was laughing which I'm not. I was very upset and stressed because of her comment and the details of the meeting. When I mentioned about the staff who was rostered at Preston centre with expired Working with Children Check, she re­ direct the conversation because she doesn't want Ian to know and also to cover herself.

On November 2, 2020 I did send a confidential email asking for a meeting with our HR to get help but I was ignored.

Our General Manager (Abby) in most occasions she is sending me on Frida y, information about breach, which is not my fault and it, makes me worried during the weekend. In addition, she sent another email asking for a m eetin g. This is happening all the time and I find it as if I did not do anything right in her eyes. Unjustified criticism or complaints often about small things. I was constantly monitored to the point that I begin to doubt myself and have difficulty with my regular task.

She also employed her own friend Goda for the position as Quality Manager, since she started the new Quality Manager there has been unprofessionalism going on between the two of them. f have requested for the Quality Manager and General Manager job descriptions but I was ignored.

During the period that f have been experiencing trauma at my work place I have informed Abby and Michelle (HR). Abby still digging and find more faults o me which is mostly irrelevant and unjustified. Sometimes I felt like this is not work anymore, there are lots of time that I am constantly confronted in the meeting and in the battle of explaining myself and its affecting mentally even when I have time off to work (weekends).
They are basing my job description way back 2016, during that time I was supported by Operation Manager and Project Manager which they both left the company.

On January 22, 2021 when I received the warning letter which I read it thoroughly in the afternoon before leaving one of my centres. I was very upset, anxious, stressed and feeling very sick to the point that I had to pull over and stop driving. I parked my car near the centre and contacted my friend who is also the other Area Manager (Nancy) to take me to the doctor because I can't drive. She saw that I'm sick, upset, anxious and stressed. She took me to the doctor nearby in Blacktown, the doctor spoke to about what happened and can barely talk because I was shaking. Dr Dulawan issued me the work cover from 25th of January 2021 to 8th of February 2021.I came back to see the doctor again on 27th of January 2021 and she prescribed medication (Cymbalta) to calm me down. I am depressed and lose myself confidence. The doctor referred me with the Psychologist and I came to see her on 31st of January 2021 . The certificate of capacity was sent to Abby, Michelle and Joanne (Finance Manager) it took them time to submit my claim until my lawyer contacted them about my claim.

In addition to my statement I have received breach notice and emails which I have replied that I refused to accept and stated all concerns. The allegation and information are mostly unjustified and irrelevant.

The impact of the bullying has affected me resulting to: Distress, anxiety and can't sleep at night

Physical illness such tension, headaches and digestive problem. Loss of self-esteem and feeling of isolation, Psychological harassment -thinking and worrying about work even during time off, depression.

I have been in the company for 11 years and never think of going to be part of union because I never experience these in my entire years working in the company.

I communicated with my fellow Area Manager Nancy Raad…) of what I'm going through and she is aware . She had mentioned to me that she doesn't want to jeopardised her job and prefer not to speak about it but I have screen shot of text message . Also you can speak to my centre supervisors which they know me for many years and my struggle during those period of time. (Contact details provided).

I first went off work after getting the final warning letter on 22 January 2021 with a WorkCover certificate . I saw the doctor the same day…

I also took time off work due to psychological symptoms/ stress in mid-December 2020…

I actually started feeling unwell around September last year (2020). There were constant meetings and accusations, lies etc as I have outlined above. I had trouble sleeping. Abby would send me emails Friday afternoons with issues and problems requesting a meeting on the Monday, so I was always thinking about what all the issues were about and what were they going to say.

So since around September 2020 I have been feeling unwell with symptoms including shaking, anxiety. During the meetings I would tell them I was in a lot of anxiety and stress…”

1. In a further statement dated 22 July 2021 the applicant said:

   “I do recall that in early 2019, I began going through a separation from my husband. It was at times a stressful period, but I got on with life and continued working during this period…

   In January 2015, I was verbally abused by my ex-husband and I recall telling my GP at the time Dr Meegoda…

   On 15 December 2020, I returned to see GP Dr Meegoda and she took a history of ‘stress and anxiety at work’.

   On 18 February 2021, I returned to see GP Dr Meegoda who took a similar history as that of 15 December 2020 and added ‘her boss (general manager) has been bullying her.’

   History of workplace issues.
   I have sustained psychological injuries as a result of my employment with Cubbyhouse Childcare. I have been diagnosed as having an adjustment disorder.

   I attach as Annexure "A" a statement that I gave to the insurer's factual investigator. I rely on that detailed statement in explaining the history and various incidents that occurred.

   I attach as Annexure "B" my response to the statement of Abby Revill that has been obtained by the insurer as part of the factual investigation.

   I attach as Annexure "C" an email chain of 30 October 2020.

   I attach as Annexure "D" an email I sent to Michelle Ashworth dated 1 November 2020.

   I attach as Annexure "E" an email where I respond to the meeting of 14 December 2020.

   I attach as Annexure "F" an email and text message chain from around 18 December.

   Current condition
   I remain significantly affected by my work-related psychological injuries.
   I continue to see GP Dr Bernadette Dulawan at Blacktown Family Medical Centre. I am also seeing psychologist Ms Saime Dilek for treatment…

   My psychological injuries are affecting my life as a whole. I am unable to work and have been unable to work since 22 January 2021. I am depressed and anxious. I can't stop thinking about the events that happened at work the bullying, unfair treatment and pressured by Abby Revill…”

1. Annexure A is the statement given to the respondent’s investigator, dated 29 March 2021, but without the added “italics” information the applicant provided.

2. Annexure B states as follows:

   “I would like to respond to the… statement from Abby Revill (General Manager).
   This is not about my past, my divorce or my family.

   1.      This is about the unfair treatment, false accusations and bullying from Abby Revill. The justice that I'm seeking of Abby has done to me…My divorce happened 2-3 years ago. My past is completely irrelevant to my work, the interviews made by Dr Clayton are more on intimidation about my past and asking questions which are not related to the incident. Is that to check about my memory and if I'm telling the truth. I disagree with the opinion made by the examiner (Dr. Clayton) because of the warning letter and action taken by the company. Also Dr Clayton statement about Abby Revill has referred me in an emails as ‘difficult and lazy’??? This statement is completely disgusting and unprofessional I have been working so hard in the company for so 11 years no one told me those words.

   2.     The insurance should review the work cover claims since Abby Revill started as General Manager in the company. I'm not the only one who is in this situation there is also a supervisor and other staff who is in work cover because of her management which is one of them is on how she was treated by Abby to the point that she has a serious concern on her mental health (suicide thought). I know that this is a confidential matter in the company but my family matters are confidential as well and have nothing to do with my work situation.

   3.      Carol Sprod -the previous Area Manager has sent an email regarding her experience working Abby Revill (please see the attached). I have a good relationship with Carol and she was aware that she's lack of experience as an Area Manager and I have supported her during her time in the company.

   4.      The staff turnover of the company must be checked since she started as General Manager. Including the HR manager (Michelle) left as well, I was told by Nancy Raad (Area Manager) that she was asked to make a statement by Abby, but she refused to make a statement because she is afraid of losing her job.

   5.      Yes I always have to defend myself because I was always accused and lied of something I didn't do. Abby already have intention to get me out of the company since the other Area Manager left and since employing her friend Gada in the company.

   6.      The child protection must be properly investigated. I wasn't even aware that it is a child protection issue. I sent several emails back and forth with the supervisor (Mary) and she acknowledged that she failed to inform me and forgot to send the email after I left the centre because she was busy and already reported to Gada during my absence. The incident report was emailed two weeks after my visit and it was a completely different version which she did with the help of the Quality Manager Gada.

   7.      I have questions regarding the statement made by Mary and the telephone meeting with Samantha. First the statement is not signed by Mary and where is the letter of breach from Samantha (Department of Education)? As far as I'm concerned during her visits there are only minor issues that we need to work on like for example the headings of the Fire drill form was with a different name instead of Surveyors Creek due constant change of staffing and supervisor. This is also the centre that was given to me without proper and hand over from the previous Area Manager. Samantha told me that she will not breach us because it was minor and at least the drill was conducted.

   I also questioned about the statement made by Mary besides of not having a signature I'm don't believe that Mary made that statement because she also have problem working with Abby. I will be surprised if she still works in the company. The telephone conversation statement of Abby and Samantha as well as the meeting with Mary the date is the same and time. Did she manage to have a meeting with Mary and had the telephone conversation with Samantha as well as typing the statement on December 3 from 2:45 - 4:30pm in the same date and time??

   8.      In regard to health and safety at Kings Langley, where is the breach letter from the department that the centre is in breach? She can just say that the centre is in breach as long as it is in her favour and something against me. During that time, I was asked to work from home for several weeks due to COVID 19 and I wasn't able to visit my centres and Abby is aware of that. I only communicated with my staff members over the phone. She is aware that I don't have anything to do with this because I wasn't there for several weeks. I have helped the supervisor to rectify all the discrepancies and even submit the quotation to change the cleaners and increase the days of cleaning due to COVID19 but she didn't reply back.

   9.      With regards to the staff complaint on 24th of June 2020 Area Manager are asked to work from home and we are not allowed to cover ratio for the staff who can't work. I did not get angry or raised my voice to the staff who cant work, I have requested her to come and told her that she can leave once the ratio is fine. For 11 years working in Cubbyhouse I never have this issue to any of my staff and supervisors, Abby is creating complaints and incident because she cannot find any bad record during my time at Cubbyhouse. I have a very good relationship with my staff, supervisors as well as the families in each centre for 11 years.

   10.    All the relevant information/conversations are in my work email and work phone which are my evidence if she hasn't deleted them.”

1. Annexures C, D, E and F are a series of emails where the applicant wrote to Ms Revill in terms such as she has described above. For example, she wrote:
   
   

   “I'm not sure about your intention I feel like you want to get rid of me. This is the second week that I'm stressed and pressured by you. You have to be realistic that the additional centres that I am managing hasn't been look after the last 11 months by the previous AM. Instead of you helping and supporting, you are putting me down and blaming me. This Is what I'm talking about that is why I was requesting an audit before turn-over of centres months ago even before Carol was step down and I was denied…”

2. The significant email is one dated 30 October 2020 from the applicant to Ms Revill where she wrote:

   “1.     Why don' t you contact Marllyn and find out if she told me that she Is resigning, I don't barely know her! When I come to visit her centre t talk about the centre NOT her personal Issue.

   2.    Base from your email on Wednesday I told staff If parent ask about Marllyl'l she Is away due to personal reason, as per my previous email to you I even spoke to parents and told themthat Marilyn rs on leave.

   3.    I just don’t understand what you mean about Marilyn & myself playing at !!!???- why did you say that?

   4.    I DON’T EVEN KNOW THIS PERSON VERY WELL. WHO ARE YOU TO TELL ME THAT I AM PLAYING!!! THIS IS NOT ACCEPTABLE! YOU NEED TO GO TO THE SOURCE OF WHAT IS GOING ON. NOT YOU INVOLVING OR ACCUSING ME AND I AM TELLING YOU THE TRUTH THAT I DID NOT SPEAK TO MARILYN! ITS HER BUSINESS NOT MINE!”
   
   

3. There were also emails between the applicant, Ms Michelle Ashworth and Mary Grace Pedregosa. I do not propose to set these emails out in detail, but I have considered them in my determination.

1. The applicant included a statement from Ms Carol Sprod also dated 22 July 2021. Ms Sprod said:

   “I joined Cubbyhouse in August 2019 while Candice was the Operations Manager. I absolutely loved my job, yes I was inexperienced but was prepared to work hard and learn my craft.

   February 2020 Abby Revill joined the company, that is when things started to change drastically.

   There was an incident where Abby called into Dalmeny OOSH and met Marilyn for the first time. She was covering for an absent staff member. Straight away Abby took an instant dislike to her, she accused Marilyn of bullying the children and yelling at them. Yes Marilyn is a loud person and she is strict, but in no way would she ever bully children. The children and the parents at the centres she works at absolutely love her. I had the utmost respect for her. Marilyn also had been going through a really rough time in her personal life, she recently lost her Mum, her Dad was diagnosed that day as being terminal and her Sister had also been diagnosed as terminal and was in palative [sic] care. Marilyn also cares for her adult mentally disabled son.

   Abby wanted to call Marilyn into Head Office and give her a warning for her behaviour that nobody else witnessed except Abby. I explained what Marilyn was going through she said she didn't care she had to come into Head Office. I explained to Abby I had never seen Marilyn behave in the way she was describing, and also explained her personal circumstances. Abby said she didn't care and to bring her to give her the warning. On the day of the meeting Abby quite clearly told me she needed me to back her on this, I said to her I can only confirm things I had seen. She was not happy. We went through the meeting I said how I found Marilyn and that I had never witnessed this behaviour from her. Marilyn was very distraught, from that moment on Abby made Marilyn's life a misery.

   Covid hit end of February early March 2020 (approximately). Abby was giving us instructions that she told us came from the Department, that we had to reduce staff to ONE ONLY in all centres as our numbers were down. Abby said she was advised by the Department that it was ok to do so, all of us knew this is not the correct procedure, and that in all of the tender documents for the centres we had, it clearly states there will be a minimum of TWO staff at all times. Staff should NEVER be alone one on one with a child, plus if there is only one staff member and they had an accident there would be nobody there to help.

   I called the Department for clarification, they told me there could be one staff member only if there were other children present and only for a short time and as long as they were in ratio 1/15, NEVER should there be only one staff member to open and close the centre on their own as it could mean you are alone with a child, and also if the centres have outside toilets they should NEVER have one staff member only as you can't take all the children to the toilet at the same time it is not feasible.

   I sent Abby an email stating what the Department had said, clearly Abby only told us what she wanted us to know to keep the costs down which I understand in this situation of Covid, but not at the cost of children's or staff safety, needless to say she wasn't happy with my email but asked me to email ALL staff with the information I had from the Department.

   Abby took a dislike also to the Sutherland girls but they were great workers…

   We had several tenders coming up in this time, and some of them were at my centres that I looked after. Sutherland was coming up for tender Abby asked me last minute to go to the tender meeting at the school along with all people interested in putting a tender in. I took a lot of notes relayed everything to Abby so she could prepare the tender as that was one of the things she was employed to do. We lost the tender, because I had a really good relationship with the Principal of the school she called me to let me know, so I could then let the girls know that worked there. She then proceeded to tell me the reasons why we lost the tender, nothing to do with me or the girls that worked there she loved us. The principal said it was the worst tender document she had seen…

   I had been asking for additional training ever since Abby started, so it would help me with my role as Area Manager. Abby said yes she would let me attend some courses, I completed some online courses but by this stage Covid had hit and we were working from home. There was nowhere conducting any courses I did as much as I could find online that didn't cost anything.

   Time passed and Covid started to ease we were back at work, we were having our regular Area Manager meetings at Head Office with Abby. This particular day before the meeting started Abby called me into the office with Ian he is another manager at Head Office. they had a proposition for me, as I was asking for training they wanted me to come off the road so to speak, base myself at Head Office and I would have intensive training to get me up to speed, and then go back to my regular job as an Area Manager afterwards. I was really happy to do this as I finally thought I was going to get proper training that I would learn a lot by, I also asked Abby and Ian if they would like me to do the Cert Ill course as Joan the owner of the company had offered for me to complete the course with her training centre Abby said no. Nancy & Dina were then called in and it was explained to them what was going to happen. My centres were divided between them I thought all was good. But NO I received absolutely NO training what so ever I was told to sit at a desk and read the regulations that was it, before this happened Abby's friend GADA was employed as a Quality Control Manager, she basically took over my role under a different title as they couldn't employ another person and make me redundant with the same title. Everybody could see what was happening, anytime I tried to discuss it with Abby she would just brush me off.

   I was so stressed because I could see what was happening so could everyone else. Eventually I was made redundant, I did not resign because of Dina that is a complete lie. I have my redundancy letter to prove it.

   My opinion of Abby is, if you question anything or don't do exactly what she wants she will target you as she did with myself, Marilyn, Dina and the girls from Sutherland. I hope you find this information useful, I was going to take things further myself after I was made redundant, but it was just me, but now others have been affected as well.”

The applicant’s medical evidence

1. Ms Saime Dilek, the applicant’s treating psychologist, wrote a report dated 12 July 2021 addressed to the applicant’s solicitor. She set out in considerable detail the various allegations made by the applicant about her employment broadly consistent with the applicant’s various statements referred to above. She summarised her opinion as follows: said:

   “Ms Williams stated that she has been an employee of Cubbyhouse Child Care Australia (before and after school care and long day care center) for the last eleven years, during which time she held various roles/duties which include: employed as a trainee in 2010 for about two years; then worked as a supervisor at one of the day-care centers for about four-five years and in 2016 to current worked as an Area Manager across Sydney Metro and Central Coast. Ms Williams reported that she would manage between 12-14 centers - Monday-Friday.

   It is noteworthy to indicate that Ms Williams had to apply for each of the positions she was appointed. She stated that part of selection criteria was to pass the interview process and successfully complete training courses.

   Currently Ms Williams reported that she is unfit to return to work as a consequence of being bullied and harassed for the past approximate seven months by management which resulted in his psychological injury. She stated that there were few contributing factors that have led to her not being able to continue working…

   Ms Williams a fifty-three year old woman who has identified a number of work issues which has contributed to her ability to continue working and/or to return to her pre-injury duties. Issues include bullying, harassment and being targeted by management and in particular her General Manager. As such she was threatened with first and final warning letter and the possibility of being dismissed from her employment. It appears that as a result of being targeted and bulled and harassed at work Ms Williams is experiencing heightened levels of extremely severe depression, anxiety, stress, loss of confidence, lack of energy and motivation, loss of concentration, focus and sleep disorder which eventually led to her psychological injury at work.

   Ms Williams's psychological injury is contributed by her employer. It seems that Ms Williams had struggled in the last year of her eleven years of employment with her employer after being micro-managed, undermined, pressured to attend constant meetings for her performance where she felt she was targeted by her manager and organisation.”

2. There is no information as to dates of consultations or treatment in that report, however, clinical notes confirm that the applicant saw Ms Dilek on 31 January 2021. That entry reads:

   “Seen [patient] prior…

   Current work – 11 years worked up to area manager- worked really hard for my position. Current changes to manager- new GM- initially was supportive but suddenly changed her mood towards us [sic] – one area manager was let go – we don’t know reasons.

   Aug/Sep 2020- have been experiencing anxiety/nervousness because of GM-‘what she does falls back at me.’

   GM has put me in situation- there is no action plan [and] I’m expected to ‘fix it.’”

3. The notes continued outlining the complaints Ms Williams had about Ms Revill and concluded:
   
   

   “Sent email to HR re her concerns about the GM’s treatment.
   W/C. GM gave her 1^st and final warning letter 22 Jan (illegible.”

4. That last entry does not really make senses since the applicant apparently saw Ms Dilek (according to her notes) on 21 January 2021.

5. The applicant next saw Ms Dilek on 23 February 2021. The entry reads:

   “Has been seeing gp for pain in her neck -Dr indicated it’s due to stress ‘stiffness’- has been angry in the last week re her claim how its handled-no response from workplace…has been having dreams related to her work.”

6. The applicant saw Ms Dilek on 4 March 2021, 29 March 2021,15 and 29 April 2021, 13 May 2021 and 3 and 10 June 2021, the latter consultation noted her assessment by Dr Hong. The entry reads:

   “She read G/M’s comments…all lies/false accusations – very disappointing. Disappointed in the way she has been treated…G/m’s lies and accusations hurt her a lot.”

7. That is the last entry in Ms Dilek’s notes.

1. There are some clinical notes and records from Dr Meegoda and other medical practices. Dr Meegoda wrote a certificate dated 18 February 2021 stating: “Ms Williams consulted me on 15/12/2020 due to work-related anxiety and stress.”

2. The applicant saw Dr Michael Hong, psychiatrist, at the request of her solicitor. In a report dated 4 June 2021 Dr Hong said:

   “Ms Williams started at Cubbyhouse, initially as a trainee after she did her Childcare Diploma. She became an educator and supervisor, and in the last seven years as an area manager. She loved her work and described being good at it, and there were no problems with the managers or any performance issues.

   The owner retired and the son took over and there was a new general manager, AR, who started in September 2020. They had a meeting with the three area managers and reassured them that their jobs were safe. She recalled they were excited, they found AR initially very nice. They had one-on-one weekly meetings to discuss the direction for the organisation. The area managers discussed their workload, responsibilities and asked for assistance in some areas.

   Ms Williams noted that there were gradual changes and she felt bullied over time. She said some of the centres were redistributed. She had done her best to do a handover checklist to the other managers, so they could take over and understand the operation in the centre, but when she requested the handover from the other managers, she felt AR did not bother to organize it even though she was not familiar with the centre that she would take over.

   Ms Williams said of the three area managers, one was sent for alleged training to head office for a few months and then had redundancy. At one point, she had offered that manager to work with her to help her build skills as there were purported performance issues, and this was declined. With hindsight she thought that the general manager never really wanted to keep that area manager. She stated the general manager subsequently employed a friend to be the quality manager.

   Ms Williams started feeling stressed because there were constant meetings every one or two weeks and there was no proper handover, and that they never operated this way in the past, and then they started blaming her when there was a problem - she felt stressed by the way they changed in attitude towards her.

   Ms Williams said the quality manager was very sneaky, would talk to other staff and then made accusations against her.

   I asked Ms Williams about the mandatory reporting issue. She explained she had done this sort of work for a long time and was trained in child protection, and they blamed her for not doing it even though information was not given to her to allow her to do it.

   After a meeting with AR, Ms Williams did not feel well but had to submit an urgent report at work as she had no scanner at home. She recalled she was between meetings, there was a supervisor coming in and out and in passing told her about an issue. It was noisy in the centre, she did not have time to attend to it and asked the supervisor to email her before 8:00 pm that day as she was in the middle of submitting the document. Ms Williams never received the email. She then took the next two days off sick; however, she said her employer then used this issue against her and said she did not attend to the mandatory reporting. Ms Williams stated that this was the first time this type of concern has ever happened and she was immediately given a first and final warning.”

3. Dr Hong added:
   
   

   “Ms Williams reported stress related to online scam and financial loss, and that she has dealt with this and is no longer distressed by it.

   Ms Williams has been taking Cymbalta, antidepressant medication, recently increased to 90 mg. She took an over the counter medication for sleep. She has been consulting Saime Dilek, psychologist, around 8 sessions.”

4. Current symptoms were reported as follows:
   
   

   “Ms Williams reported that she felt unfairly treated by her employer, and this constantly played on her mind. She stated her mind is ‘not alert’ and that when people talked to her she found that they often needed to repeat things to her, because she is not even able to absorb basic conversation…”

5. Dr Hong then turned to “File Review” adding:

   “Ms Williams' statement had been noted. The issue only started when the general manager AR took over. She became very stressed, anxious and fearful of losing the job. Her request to meet with the HR was ignored. Her confidence and motivation were very low. Ms Williams felt the general manager made accusations, lied, and bullied her. She responded to the first and final warning letter and advised she was denied information about what she should report in relation to the failure to comply with managerial reporting. She disagreed that she allowed the service to be out of ratio with staffing. Ms Williams was very concerned about how AR handled the situation and how they had been biased and playing favourite in her management. She spoke about the issue where a child went home on her own and stated that she had communicated with the staff to be involved but she was not required to attend to work in the centre directly. Regarding the failure to act as a liaison between staff, Ms Williams advised for 11 years she had done well to build relationships. Regarding the failure to ensure quality assurance checks are conducted, she explained the way she had performed and that AR expected her to do checklists with all the centres that she did not have access to and also discussed management reporting issue.

   Section 78 - Ms Williams' compensation was rejected on the grounds that her condition had been caused by a performance appraisal.

   Dr Clayton Smith, IME psychiatrist reported on 1 April 2021, noted the workplace difficulties predominantly related to the general manager. Ms Williams also became nervous about her work and trying to catch up. She began shaking. Ms Williams took personal leave in December 2020 after the proposed meeting which stressed her out. Dr Smith advised Ms Williams developed depression and anxiety in the context of alleged unreasonable workload, inadequate support, and unreasonable criticism of her performance, where her employer detailed their performance concerns. She decompensated after receiving the first and final warning letter. He noted Ms Williams lost money to an online scam in 2020 and dismissed this as a significant factor. He diagnosed an adjustment disorder predominantly caused by action taken or proposed to be taken in relation to the performance review and there were no non-work factors related that substantially contributed to her condition.

   Certificate of capacity noted anxiety and stress due to unfair treatment with no pre-existing factors identified and certified by Dr Dulawan with no work capacity.”

6. Dr Hong then summarised his opinion as follows:

   “Ms Williams described being a loyal worker and generally had long employments, and previously worked overseas in various capacities without any psychological difficulties.

   Ms Williams started at Cubbyhouse as a trainee and was consistently promoted and became the area manager seven years ago. She had no prior psychiatric difficulties or performance issues. Problems developed when the new general manager took over in September 2020, and her stress level steadily escalated. She has not felt supported and believes that she has been subjected to a pattern of behaviour, consistent with bullying and harassment, and that there were unfair criticisms regarding her performance. As a result of the described workplace difficulties, she developed a range of symptoms consistent with a chronic adjustment disorder.”

7. When asked his views on causation, Dr Hong said:

   “Ms Williams' work injury is a substantial contributing factor and there is no underlying or pre-existing condition.

   Much of the described workplace dispute relates to performance and discipline matters and I agree this is the whole and predominant cause of the injury. Whether such administrative action is reasonable or not, is a matter for the appropriate expert to determine.”

8. In a further report dated 27 July 2021 Dr Hong noted the additional material that had been sent to him and said:

   “I had previously assessed Ms Williams and reported on 4 June 2021. Under 'Past Psychiatric History', I recorded she went through a divorce about three years ago. Her GP suggested she see a psychologist. She had one session and was told she needed a longer session. She reported stress related to online scam and financial loss, and dealt with it. There were no other personal stressors. She described that as a result of the workplace problems, she developed depression and anxiety symptoms. I diagnosed an adjustment disorder…

   I noted the report from Dr Clayton Smith, IME psychiatrist report dated1 April 2021. He diagnosed an Adjustment disorder and that performance management has been a major factor, and that non-work factors are a minor cause.

   I noted the supplied documents including Ms Williams' statement addressing her prior psychiatric difficulties and her employment, dated 22 July 2021.

   I noted Ms Williams's statement dated 17 March 2021 again outlining a similar history in terms of work stress.

   I noted Ms Williams's further statement in response to the decision made by the insurance company and statement by her general manager. She advised her injury is about her employment and not her family or divorce. She discussed Dr Clayton Smith's report and outlined the issue at work that led to her anxiety and depressive symptoms, and advised that should have been managed by her employer differently.

   Ms Williams's emails to her employer and her phone messages had been noted.

   Ms Dilek, treating Psychologist, 12 July 2021, noted Ms Williams's workplace difficulties and that she felt targeted by her manager and HR. She divorced 3.5 years ago and has been the main breadwinner in the relationship. Her daughter had moved out twice to live with her boyfriend but not because of problems at home, and that family issues were not the cause of her psychiatric problems. There is no previous psychiatric condition. Ms Williams suffered severe depression, anxiety and stress and Dr Dilek diagnosed major depression and adjustment disorder caused by her employment and she is not fit for work.

   Ms Williams's GP records have been noted…”

9. Dr Hong was asked: “Do you still hold that Ms Williams' work injury is a substantial contributing factor and there is no underlying or pre-existing condition?” Dr Hong said:
   
   

   “The additional information from Ms Williams's treating GP which generally contained only brief entries, and indicated that she was going through a difficult divorce and experienced depression, anxiety and stress and that this overlapped with the onset of her work-related depression and anxiety.

   The evidence does indicate that the issue with her ex-husband and daughter has subsided and no longer affected her to a significant degree or required further psychological intervention. Her anxiety and depressive symptoms have been taken over by work-related psychological difficulties.

   Overall my view is that Ms Williams has a pre-existing psychiatric condition, but work had been a significant concurrent stressor, and a substantial and the major contributing factor to aggravation of this pre-existing condition.”

The respondent’s evidence

1. In a statement also dated 29 March 2021 taken by Procare, Ms Abby Revill said:

   “4.     I have been employed in the capacity of General Manager, Cubby OOSH for about 15 months.

   5.      I first became aware of Dina Williams' claim for workers compensation when she submitted a certificate of capacity after she had received a first and final warning letter on 22 January 2021.

   6.      You have pointed out to me that Dina has claimed in her statement, that during 2020, her case load as an Area Manager (AM) increased from 8 centres to 12 centres. In November 2020 we lost 2 of Dina's service during the tender process bringing her service count to 10, I make the following comments.

   7.     We had 3 AMs. The third AM was inexperienced in areas of compliance and regulations and was hired prior to my employment with Cubby.

   8.      Dina did not get along with the new AM (Carol) and was quite vocal about Carols work abilities.

   9.      We put the new AM in to in-house training for a period of 3 months during 2020.

   10.    Dina complained that Carol did not know her job and that she was carrying Carol's workload before Carol was brought in-house. Dina also expressed this in several emails.

   11.    We had a meeting with the 3 AMs, including Dina. We advised that Carol was going to spend time with in-house training, and that the case load would be spread between the 2 AMs - Nancy and Dina.

   12.    Both Nancy and Dina were very happy with this decision and were high-fiving each other in the meeting in front of Carol.

   13.    Both Dina and Nancy commented in this meeting that they were happy with this decision, and that they were happy to spread the case load between themselves. I offered to take on some of the services both Nancy and Dina stated that they were happy to have the increased amount of services.

   14.     I advised Dina that we were happy to provide extra support if needed, to which she responded no she would be fine…

   16.    We appointed a Quality Manager to provide them support with compliance and quality...

   17.    Gada's main function was to support the 2 AMs with the compliance and quality of their services.

   18.     I cannot recall the date of this meeting in 2020, but all but one breach occurred prior to raising performance management issues with Dina later in the year.

   19.    With regard to Dina's claim in her statement that she had a high case load, at no time did she formally or informally raise issues with management about having too high a case load. She may have at one stage commented that she was busy but this was around prioritizing her tasks.

   20.    After this, there have been several significant performance management issues with Dina's work. Some basic issues, but also some very significant and concerning issues which were raised during 2020 and early 2021.

   21.    One serious breach was observed at Kings Langley Long Day Care prior to the above meeting minutes have been provided.

   22.     I have provided you with several documentations such as emails and letters between Dina and management outlining these issues and how they were addressed with Dina.

   23.    One of the significant performance management issues was with regard to a breach by Dina in responding to a serious child protection issue - this lead to Dina being issued with a first and final warning letter in January 2021.

   24.    The first time we raised performance issues with Dina was 24 June 2020 (prior to the meeting where services were reallocated), where there were breaches at the Kings Langley centre, which included Rat Sack found in a toy box, unhygienic conditions and cords hanging in the cot room within children's height, which can lead to strangulation. I have provided you copy of the meeting minutes from 24 June 2020 where we raised and discussed these issues with Dina.

   25.    This was not a formal performance management meeting. I was concerned at that stage with her levels of service. Dina started being open to discussion, but by the end of the meeting was becoming defensive.

   26.    After this meeting on 24 June 2020, I received a complaint about Dina from one of the centre staff at Winston Heights. The staff member's sister had passed away and she wanted to take time off for the week… she called Dina asking for time off as she didn't want to be upset in front of the children. Dina got angry and raised her voice at her and told her she had to come in to work. After this complaint by the Winston Heights staff member I had an informal chat with Dina about being sensitive with staff issues and how to address them.

   27.     I have provided you documentation from 23 October 2020 onwards where we requested Dina attend a meeting on 26 October to discuss a breach of National Regulations and National Law.

   28.     Dina initially refused to attend this meeting (see her email dated 23 October).

   29.     Michelle Ashworth from HR (no longer employed) spoke to Dina and advised she needed to attend this meeting and could bring a support person.

   30.    This meeting went ahead on 26 October where we raised with Dina the breaches at Prestons.

   31.    She emailed us back in ALL-CAPS and underlined on 30 October in response to these issues raised, which you have a copy of. She was very defensive.

   32.    On 3 November 2020 we had our first formal performance meeting with Dina. She was not given any formal warnings - we just wanted to work on her performance issues. She continued to blame other people for the issues raised.

   33.    Cubby OOSH lost 2 of Dina's services via tender and ceased operations on the 2^nd and 3^rd November, taking her service count from 12 to 10 services.

   34.    On 2 December, a spot check/audit was performed by Samantha from Department of Education at Surveyors Creek. A meeting was held with Dina at the centre where several breaches were raised by Samantha. Dina reported to me that this meeting was positive. But when I followed up with Mary (NS from Surveyors Creek) from the centre I was told the opposite and that Samantha from DOE could see that Dina was lying during the previous meeting and blaming other staff members at the centre.

   35.    By the end of this meeting after Dina had left, the staff were in tears due to Dina's aggressive behaviour. Samantha from DOE had raised several issues relating to Dina's management - I have provided you with documents regarding this issue dated 3 December 2020.

   36.    Dina responded to this defensively and blaming others and asked to call Samantha and clarify her points.

   37.    On 14 December 2020, Ian Fionda and I met with Dina to discuss the breach issues raised by DOE. Dina was upset and defensive.

   38.    After the meeting, Dina drove to the Surveyors Creek centre. While she was at Surveyors Creek centre a serious child protection issue was brought to Dina's attention by centre staff which required immediate response from Dina. Dina did not escalate this issue as required. She had 2 days personal leave after this and did not report it to me until some days later. Normally it would have to be raised straight away - even if advising me by text message. It was not until I raised the issue with her- I was a bit frustrated by the time (17 December) as it was a serious child protection issue.

   39.    On 20 January 2021 our QA Manager, Gada, attended Beverly Hills North centre. When Gada walked in to the centre, an air conditioning unit was hanging off of a wall by its' cord posing a safety risk. Dina had been aware of this.

   40.    I spoke with Dina about this on the phone, she stated that she needed to check with Dora. Dina called Dora, Dina then raised her voice at Dora from the centre - telling Dora she should not have raised this issue about the A/C unit issue with me stating ‘Why did you call and tell Abby about the air-conditioner’.

   41.    We issued Dina with a firsts and final warning letter on 24 [sic] January 2021 which you have a copy of. The main focus of this warning was due to the child protection breach by Dina.

   42.    We invited Dina to attend a meeting with us, but she declined this responding by email on 24 January 2021 (which you have copy of). By this stage she had submitted a work cover medical certificate for psychological injury.

   43.    The only interaction I have had with Dina since then was in February when emailed her a notification of injury form.

   44.     I understand Dina has had a lot going on in her personal life. She is a single mother with 2 older daughters. One daughter had been moving in and out of home over the course of several months. Her daughter works as an NS for us and she has mentioned that she has moved out of home a few weeks after moving in with Dina again.

   45.     I have had to access Dina's work email account and have noticed that she was involved in a business where she was a buying agent bringing medical supplies into Australia, and that she had lost money in this business venture and she had enlisted the help of a third party to locate the individual who was in hospital and was only given 2 days to live due to COVID.”

1. The email and notes referring to the “performance issues” in June 2020 were attached to Ms Revill’s statement.

1. There are also a number of emails between Ms Revill and Mr Ian Fionda about Ms Williams and some between Ms Revill and Ms Williams.

2. The lengthy email from Ms Williams to Ms Revill referred to in paragraph 31 as “ALL-CAPS and underlined on 30 October in response to these issues raised” is also included, as it was in Ms Williams statement.

1. On 23 October 2020 Ms Revill wrote to the applicant as follows:

“Dear Dina,

Meeting Request in relation to Cubby OOSH at Preston's

We are requesting a meeting with you at Support Office level 1, Suite 4/21Solent Circuit, Baulkham HIiis on Tuesday 26 October 2020 at 4:00pm. This meeting will be with Abby Revlll (General Manager) and Ian Fionda (Head of OOSH) to discuss the breach In National Regulations In relations to staffing at Cubby OOSH at Preston's from Wednesday 21Oct­ Friday 23 Oct 2020.

Please feel free to bring a support person who can sit in the meeting but cannot speak on your behalf.

Kind Regards

Abby Revill

Ian Fionda”

1. Later that day Ms Williams responded by email stating: "Hi Abby, Just to let you know that I refused to attend the meeting with you and Ian as far as I'm concerned I did not breach staffing regulation…”

2. The issues at Prestons were set out in more detail in an email from Ms Revill to Mr Fionda on 22 October 2020 where she said:

   “Just wanted to loop you,

   Yesterday morning Amanda D contacted Dina and asked her to be at Prestons on the floor in the afternoon as Amanda was struggling to get additional staff member to cover the ratios. Dina then came into support office and Amanda said to her that she needed to be at Prestons In the afternoon, Dina said to Amanda ‘you will let me know if I need to be at Prestons’ Amanda said ‘you have to be at Prestons.’

   Dina drove to Sutherland North and Caringbah to return someone's Ventolin. At 2:50pm Dina called Amanda and asked her again if she needs to go to Prestons and Amanda told her that as she already said she must be at Prestons. Dina said she was going to be late. Amanda at the same time looked up on google how long it would take Dina if she turned around and went to Prestons and she said it would have taken her 50mins. The phone call ended and Dina contacted Amanda again at 3:30pm saying she was only just leaving Beverly HIils after handing them uniforms and was stuck in traffic. Dina called Amanda at 4:10 asking if she is still needed at Prestons as by now the numbers would have dropped.

   Prestons had 43 children and 2 staff, from my understanding they also didn’t have a responsible person signed on. I asked Dina for an explanation and she stated ‘Amanda needs to learn to communicate.’

   Today: Amanda contacted me saying that Layla had called in sick and won't be at work today. Therefore no staff would be on the floor today. I asked Amanda to contact Dina and ask her to be on the floor, below is her response:

   ‘Sorry Amanda- I have too many things today. I will have to be at Kellyville Ridge. I organised for induction at 1.30pm then I will go to SC to speak to staff about the child starting with medical condition.’

   I asked the ladies to call each other and work it out. In the end they agreed with another staff member from Kingwood however Mel hasn't picked up the phone. Dina has been told by me to be at Prestons today to which she said to me she has to complete an induction. I have told her she has to be at Prestons this afternoon and reminded she her she is the area manager.

   I said all this to ask, can we issue her with a show cause letting asking for her to explain why she felt delivering bloody uniforms and Ventolin more important than being on the floor as part of ratios at a service she manages?

   Also happy to go down the performance management path with Dina. I feel she has come back on leave more  difficult and lazy than before.

   This afternoon Preston's will have Dina, agency and casual so all good…”

3. On 1 November Ms Revill and Mr Fionda again wrote to the applicant requesting that she attend a meeting on 3 November. The letter was in similar terms to that set out above in paragraph 40.

1. The applicant attended that meeting. Detailed minutes were completed. I do not propose to set out the full contents. The minutes concluded with this comment:

   “Abby stated that it's all about accountability. Just like if Abby wasn't doing something incorrectly then Ian would pull her up on it, likewise when staff at Dina's service aren't working to an expected level then Dina would pull them up. Abby stated that she has been employed to do a job and at times that means that she will need to have difficult conversations and it's important to not make it personal. Abby apologized if Dina was feeling that way but felt that she believes she has been open and supportive. Dina nodded.

   Abby asked if there was any other questions, neither Ian or Dina had anything further to add.

   Abby followed up by saying that just as before she would be documenting the items discussed and sending them out in an email for Dina's record.

   Follow up

   When you're available this week let's get together and see if we can put a plan in place to help

   support you with prioritising your workload.”

2. On 3 December 2020 Ms Revill had a meeting with Mary, the new recruit. The minutes of that meeting read:
   
   

   “Asked Mary how she was going in her second week, Mary stated that she found these two weeks very challenging…

   Once alone Mary opened up and asked if she could be transparent and honest about her concerns. I stated yes…

   Mary stated that in her interview she asked Dina how many children attend the service with additional needs and she was told a max of 3 children however Mary pulled all children's file and checked and the service has over 15 children with no ISS in place to roster on additional staff.

   Mary mentioned that Dina arranged a staff meeting where she spent the whole time blaming staff for things that she had asked them to do. Mary stated that she felt like the referee asking the staff and Dina to calm down and move on. Mary also mentioned that Dlna stated that Gada, Ian, Amanda and I would attend the meeting and the staff were very excited to show ops what had changed.

   Mary stated that the team was blamed by Dina for things that they hadn't been trained in. And when questioned by the staff she would shift the blame to the old NS. Mary stated that she asked Dina why she hadn't come to SC and supported the team with paperwork and other things such as drills. Dina stated she has other services, Mary stated that she told Dina it wasn't good enough as she ls the area manager and she left the service breaching since Amy (old NS) left. Mary mentioned that all staff were in the office in tears after the meeting because of Dina's responses.

   Mary state that the service had a spot check on Wednesday morning and Samantha brought up several issues. Mary stated that she was disappointed because Dina lied throughout the meeting and at one stage Dina left the room and Samantha stated that she knew Dina was lying.

   Mary stated that the assessor asked Dina now long she had been AM and Dina avoided the question rather pointing out all the good things she has done with other services.

   Sam asked to see the Fire drill folder and Dina wasn't able to locate the folder, Sam once again asked Dina how long she had been the AM and Dina didn't answer the question rather danced around the topic. Mary stated she changed the sentence and asked Dina the same question (trying to help her) but Mary stated it became apparent that Dina didn't want to answer the question rather than her not understanding what was being asked.

   Sam also asked Dina how often she comes to SC, Dina stated that she comes quite often, normally monthly however since Mary commenced she had been coming once a week. Mary stated she was very upset because this wasn't the case and Dina had offered her little support since commencing work.

   Mary stated that Dina spent the whole meeting with Sam blaming everyone else for the service.

   Sam stated that the service has only completed fire drills twice on the Monday and previously in June. Sam asked why the service had breached and not completed the drill. Dina answered but didn't give a concrete answer.

   Dina asked Sam if she was going to get into trouble and Sam stated that a warning letter would be implemented…

   Mary stated that Dina didn't introduce her to the children and she needed to do that.

   Mary stated that they have a child who attends BSC Wed-Fri. On her flrst day with him the child kicked, scratched, punched and bit her on the shoulder…

   Mary stated she called the child's parents… Mary stated that she spoke to Dina and Dina was very upset stating that she doesn't want Mary to talk to the parents as it's not her job. Her job is to be on the floor and not speak to the family…

   Mary also stated that Dina calls and speaks to Angel and she feels that she prefers to deal with Angel instead of her.”

3. Samantha (apparently a Department of Education inspector) and Abby also had a meeting on 3 December 2020. Those minutes state:

   “Opened the conversation introducing myself and asking Sam for honest feedback.

   Sam was really pleased stating that it was refreshing to have a provider who wanted some honest feedback. She has been tracking Cubby OOSH and noted in the last 6-8 months things have been improving and she was shocked when she visited SC and noted it wasn't where she would expect with Cubby OOSH.

   I stated that we are working long hours to ensure that our quality and care is setting benchmarks in the community and I was disappointed when I spoke to Mary about how the visit went.

   Sam stated that she was mostly concerned about Dina and not Mary, Sam stated that Mary was very competent however she was concerned about the responses Dina gave…

   Sam stated that she mentioned that the prescribed information wasn't on the board and she put everything up on Monday.

   Sam stated the service lacked resources and stated that with Cubby normal level of quality it was disappointing as there wasn't enough resources to child.

   Sam stated that 1 x drills were conducted on Monday and Tuesday, prob because they knew I was coming. Sam asked for the drills and stated that Dina had no idea where they were located and asked Angel. The folder showed a drill hadn't been conducted since June 2020

   Sam stated that she asked Dina how long she has worked as an AM. Dina gave the impression she was only AM for the time Mary had been working at the service. Dina didn't want to tell Sam how long she had been an AM of SC

   Sam stated that Dina blamed everything on the NS and other staff and didn't take any responsibility…

   Sam asked Dina where the templates are kept and if Mary had access to them, Dina stated that she had sent them to her however Sam stated that due to earlier conversation she knew Dina was lying.

   Sam stated that Mary is very good and we need to try and hold onto her as she can and has already brought the service up

   Sam stated she asked how often she visits SC, Dina stated at least once a month however after Mary started every day. Sam stated that she could tell she was lying…”

4. Following this meeting, the applicant sent an email to “Mary and Angel”, copying in Gada. Although dated 2 December, it appears that it followed the visit by Samantha. In that email, the applicant congratulated the team for their “hard work” and mentioned the visit by Samantha and certain improvements that were required, noting that “we might have another spot visit in the next 3-6 months.”

5. Some of the documents in the Reply are either difficult to read or totally illegible because they have been photographed and then simply included as part of the factual investigation.

6. It is therefore not entirely clear what, if any, events took place between 3 December and 12 December 2020.

7. On 21 January 2021 the applicant was given her “first and final” warning letter. It reads:

   “On 12 th December myself and Ian Fionda met with you to discuss concerns related to your conduct and performance.

   At this meeting we outlined our concerns related to your conduct and performance and its impact on our business. The key areas for concern include the following, which are required of your role as Area Manager for Cubby OOSH:

   1.Failure to comply with mandatory reporting requirements

   2.Failure to oversee the staffing of each centre to meet the legislative requirements as defined In the Education and Care Services and National Law and Regulations

   3.Failure to ensure that the centre policies and procedures are implemented, reviewed, and updated as required

   4.Failure to provide ongoing support and education to staff, with particular attention to the regulatory compliance, supervision practices, policies, and procedures

   5.Failure to act as a liaison between the NS, staff and the licensee and represent Cubby OOSH in a professional manner

   6.Failure to ensure Quality Assurance checks are conducted and reports are created for each service and action taken as required

   7.Failure to ensure that accessibility and correct functions of all fire alarms, and that the rehearsal of emergency and evacuation procedures [lockdowns and evacuations) are conducted in accordance with Regulation 97 of the Education and Care Service NationaI Regulations.

   You were given an opportunity to give your account of the situation. Your response was as follows:

   ·     You felt you were honest with the Departmental representative when they visited the Centre

   ·     You did not blame staff at the Centre

   ·     You do not agree with having NS responsibilities

   Following this meeting, a second meeting was held on the 20 December 2020 when myself and Michelle Ashworth (National People & Culture Manager), met with you to discuss concerns related to your conduct and performance.

   At this meeting we reiterated our concerns related to your conduct and performance and in particular, concern was further discussed your failure to comply with mandatory reporting requirements. You were given an opportunity to give your account of the situation. Your response was as follows:

•You do not feel you can meet Child Protection Mandatory Reporting requirements without all the Information at hand. You advised you sought more Information from staff but then acknowledged that you failed to follow this reporting up with staff members and complete the required reporting. You also failed to escalate this issue.

Following review of the matters raised and your responses to them, we have concluded that your conduct and performance is unsatisfactory, and we are therefore issuing you with this first and final warning.

Any future conduct/performance Issues will result in further disciplinary action being taken where appropriate, potentially Including the termination of your employment. As discussed, a sustained improvement in your conduct and performance is required in order to meet the standards expected and to fulfill your role and responsibilities as set out ln your employment contract. As a result, you will be placed on a Performance Improvement Plan and I will meet with you weekly to review your progress…”

1. There follows some text messages between the applicant and “Nancy,” most of which are illegible.

The respondent’s medical evidence

1. The applicant’s treating general practitioner, Dr Dulawan, wrote to Ms Dilek on 25 January 2021 stating:
   
   

   “Thank you for seeing Ms Dina Williams, 53yrs 3mths, a Day care centres area manager for assessment and management of ongoing anxiety since August / September 2020 due to work related matters. She presented to me last Friday very upset, shaky, anxious accompanied by a friend as she could not drive herself at that time, after reading an email from work.
   Past History: none recorded…”

1. Clinical records from the Emerald Medical Centre St Marvs confirm that the applicant attended there on 18 February 2021. The entry reads: “having stress and anxiety at work- her boss (general manager) has been bulling [sic] her. Currently [sic] in WC with another GP in Blacktown- wants a letter…”

2. Subsequent entries showing earlier consultations are difficult to decipher but it seems that Ms Williams attended in December 2020 also complaining of “stress and anxiety at work- mood ok- wants a MC…”

3. Entries in 2019 relate to problems surrounding her divorce which appear to have been going on since 2015.

1. Dr Dulawan wrote a certificate on 22 January 2021 certifying the applicant unfit for work from 25 January 2021 to 8 February 2021 adding that the estimated time before a return to work would be “when work situation is rectified.”

2. The last certificate appears to be one certifying Ms Williams unfit from 9 April 2021 to 7 May 2021 and is in the identical terms referred to above.

3. The respondent arranged for Ms Williams to be assessed by Dr Clayton Smith on 1 April 2021. In a report of the same date, he said:

   “Ms Williams last worked on 22 January 2021 as an area manager for Cubbyhouse Childcare Pty Ltd, an organisation managing before and after school care and long day care centres…

   Ms Williams said her last day of work was the day before she had a scheduled performance meeting with the general manager. She said she was already feeling stressed that day and received an email from Abby Revill… which she avoided opening because she did not want to read it, become upset and drive. She said she left the email until later in the afternoon and then when she read it, she realised it was a first and final warning letter. She said she was not expecting it and the accusations were irrelevant.

   She said she was shaking, sick, confused and did not want the staff to see her crying. She said she left the centre and drove for two minutes before parking her car. She said she called one of the area managers who met her. She said her colleague saw she was shaking, pale and confused. Ms Williams said she had never felt that way before. Ms Williams said her colleague told her to leave her car in the carpark and her colleague drove her to the closest medical centre in Blacktown. Ms Williams said her colleague referred her to her doctor, not her usual doctor in St Marys.

   Ms Williams said as soon as she saw the doctor, she could barely talk. She said she was shaken, worrying about her job, her finances and herself. She said she has been doing her job for eleven years and has never had a situation like this… She said the doctor put her on a WorkCover certificate of capacity immediately and referred her to a psychologist…

   Ms Williams said she last felt fine around September 2020. She said things changed from that point because ‘all the jobs were put on me’. She said one of the three area managers went to head office… for training. Ms Williams said…while the area manager was being trained, herself and her colleague had to look after the extra centres. Ms Williams said the reshuffling of the centres increased her stress… Ms Williams said the centres were not looked after when the other area manager was in the position and the general manager was new and inexperienced. Ms Williams said she could see a lot of discrepancies which she was blamed for. She said ‘that's when I started stressing out’.

   Ms Williams said she was becoming nervous about her work…She said she was worrying and every email she was receiving from the general manager was mostly accusation and blame. Ms Williams said she had to defend herself and explain that she needed a handover about what was happening with the centres… She said with every incident at a centre, she would receive emails from her manager on Friday and Ms Williams would spend the weekend wondering what is next…

   Ms Williams said she was questioning herself, ‘Did I do anything wrong, did I say anything wrong’. She said it was constant and she was being accused of things with no evidence. Ms Williams said she felt she was not being heard. Ms Williams said her manager only replied to the issues she wanted to respond to…

   When questioned about performance issues on 24 June 2020, Ms Williams told me that she had not visited the centre in question because they were on lockdown. She said she was given a checklist but it was different to the usual checklist. Ms Williams said when the general manager, Ms Revill, started at the beginning of January 2021, the area manager checklist changed. She said the general manager visited on a busy day. Ms Williams said she was supposed to contact Ms Williams first and not just show up while staff are ‘in ratio and with children’. Ms Williams said the visit also stressed the staff.

   When questioned about the performance concerns in December 2020, Ms Williams said she took personal leave in December 2020 after a performance meeting with Ms Revill that ‘stressed me out’.She said that morning she had attended a meeting with Ms Revill about the centre in Prestons and endured a range of accusations including that the supervisor was resigning and she had not informed the general manager which Ms Williams said was not true.

   She said the day before she went to the Prestons centre she was accused that the supervisor had told her about a child protection issue and she had failed to respond... She said she then went on personal leave.

   Ms Williams said she did not receive any notification of formal performance management until the first and final warning letter in January 2021.

   I note from the documentation provided by Ms Williams' employer, specifically the statement by Ms Revill, that Ms Williams allegedly appeared happy about the area manager being removed to head office and appeared happy to spread the caseload. Ms Revill states that a quality manager was appointed for support. Ms Revill noted that Ms Williams' centre responsibilities were reduced from 12 to 10 centres in November 2020. She also notes that Ms Williams allegedly had personal stressors and was involved in an importing business and lost money as well as had personal issues with her daughter. Ms Revill has referred to Ms Williams in an email as ‘difficult and lazy’.

   When questioned about the importation business, Ms Williams initially told me that she did not go through with the business and denied losing money. She told me that ‘he is just a person I met online, I didn't put any money in to it’. On further questioning, she acknowledged that she was scammed out of $20,000 at the beginning of 2020. She told me ‘It didn't affect me much, I admitted it was my mistake and I can't do anything, what is the point of me carrying this’. She said she wanted to move on and concentrate on her work.

   When questioned about her daughter moving in and out of the family home, Ms Williams said that her eldest daughter wanted to be independent but then had an issue with her housemate and had to move back home. She said her daughter then wanted to move out again after her boyfriend had an issue with Ms Williams' other daughter. Ms Williams said their relationship is intact, they are still communicating and her daughter is happy where she is living.”

1. Dr Smith then said:

   “Ms Williams is a 53-year-old woman employed as an area manager for Cubbyhouse Childcare Pty Ltd. She described developing anxiety and depressive symptoms in the context of alleged unreasonable workload with inadequate support and unreasonable criticism of her performance. Her employer has detailed their performance concerns. Ms Williams decompensated after receiving a first and final warning letter. The period over which Ms Williams developed symptoms coincided with the period over which her performance was questioned. I note that Ms Williams also lost a substantial amount of money to an online scam in 2020 which she initially denied and then dismissed as a significant stressor.

   There was no evidence of a pre-existing condition or vulnerabilities to psychiatric disorders. Ms Williams' employer has denied unreasonable management, has detailed their performance concerns and claims to have provided appropriate support.

   Ms Williams developed a DSM-5 diagnosis of an adjustment disorder with mixed anxiety and depressed mood characterised by anxiety, depressed mood, loss of confidence, fatigue, sleep disturbance, rumination, social avoidance and depressive thought themes including self-doubt and apprehension about the future. The symptoms are associated with a functional impairment. The predominant cause of her adjustment disorder was her perception that she was subject to unreasonable allegations of poor performance in the context of an unreasonable workload without adequate support…

   Ms Williams' diagnosis was predominantly caused by the actions taken or proposed to be taken by her employer with respect to performance review.

   The onset of Ms Williams' symptoms coincided with the period of performance review. The focus of distress is the circumstances of her employment. Non-work related stressors are a minor cause…

   Ms Williams' return to work is complicated by pending performance management which she perceives as hostility on the part of her employer and causes considerable apprehension. It is unlikely that she will return to her pre-injury employer who have clearly indicated their dissatisfaction with her performance. Legal and compensation issues are likely to play out for some time. These will serve as perpetuating stressors which are likely to maintain her symptoms. In my opinion, the relationship with her employer is irreparably damaged. She is unlikely to return to work for at least six months. She can engage with an occupational rehabilitation provider to begin searching for alternative employment.”

The applicant’s submissions

1. Counsel for the applicant submitted that the conduct of Ms Revill revealed a personal dislike of Ms Williams and amounted to “bullying and harassment”, unrelated to any performance or discipline issues, and that this was the predominant cause of her psychological injury.

2. In these circumstances, it was submitted, s 11A did not apply.

3. Alternatively, any action by the employer as regards discipline or performance appraisal was unreasonable.

4. The statement of Ms Sprod and the reports of Dr Hong and Ms Dilek it was submitted reinforce the conduct of Ms Revill as the predominant cause of Ms Williams’ injury. Ms Sprod in particular described a pattern of behaviour by Ms Revill that was clear evidence of bullying and harassment.

5. Counsel pointed out that for some 10 years Ms Williams had not been subject to any performance or disciplinary measures and circumstances changed only when Ms Revill became manager.

6. It was noted that other employees had not been disciplined, for example, Gada or others at the KVR centre or at East Hills. There were staffing problems in about August to October 2020.

7. There were documented instances of bullying by Ms Revill and she carried out targeted action against the applicant.

8. It was these feelings of being bullied that caused Ms Williams’ injury.

9. It was submitted that no weight should be given to the statement of Ms Revill. She did not dispute the applicant’s allegations, and her description of events was not reasonable, for example, she did not say why certain matters were the applicant’s fault just that Ms Williams’ conduct was the cause of the disciplinary letter.

10. In summary, Ms Revill did not address why the various problems were Ms Williams’ fault. She could not report on matters of which she was unaware which goes to the reasonableness of the conduct of Ms Revill as regards disciplinary measures.

11. It was also submitted that the medical evidence, supporting a diagnosis of an adjustment disorder was as a result of bullying by Ms Revill as noted by the psychologist, Ms Dilek, whose opinion it was submitted I would accept as she was treating the applicant.

12. Reference was made to the decision of Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad) where Deputy President Snell said [at 88]:

    “There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”

13. The employer bears the onus of establishing the reasonableness of the conduct. Reference was made to Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie) where the court said:

    “185. In my view, the Deputy President addressed a different question. He considered whether the Arbitrator had fallen into error in finding that a wider range of actions with respect to discipline had been reasonable. Those actions included some that the Arbitrator had not found to be causative of Mr Heggie's psychological injury.

    By addressing a question other than the one mandated by s 352(5) of the WIM Act, the Deputy President committed an error in point of law.”

14. The applicant submitted that the actions of Ms Revill and indeed the national manager Michelle Ashworth, who attended the meeting on 20 December 2020 were neither fair or reasonable in all the circumstances. Reference was made to the decision of Judge Geraghty in Irwin v Director General of Education (unreported) on 18 June 1990 where he said:

    “The question of reasonableness is one of fact, weighing all the relevant factors. . The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”

15. The referral to Ms Dilek confirmed that the meeting in December involved work-related matters which caused the applicant to become extremely upset after reading the email from the respondent. That manner of communicating was unreasonable.

16. Dr Dulawan was the first to see the applicant after she ceased work in January 2021 and he reported “ongoing anxiety since August / September 2020 due to work related matters. She presented to me last Friday very upset…” This it was submitted was clear evidence that it was “work-related matters” that produced the stress and anxiety Ms Williams developed and was consistent with the events reported around that time.

The respondent’s submissions

1. The starting point of the respondent’s submissions was also the decision in Hamad. It was submitted that the applicant’s history did not disclose any single instance of major psychological trauma, and that the need for medical evidence, dealing with the causation issue in s 11A(1) had been satisfied by the reports of Drs Hong and Smith.

1. The respondent also submitted that the more relevant category under s 11A was discipline, consistent with the respondent’s evidence.

2. Reference was made to the decision of Neilson J in Kushwaha v Queenbeyan City Council [2002] 23 NSWCCR 339 (Kushwaha) where he said:

   “154. I have no hesitation in finding that the process adopted by the respondent, of drawing the applicant’s unsatisfactory work performance to her attention, in asking her to improve that performance, of suggesting ways that could achieve that end, of offering assistance and or training was ‘discipline’ using the wider sense of that word. Accordingly, the respondent has made out a defence under s 11A.”

3. In this case, it was submitted, the respondent’s actions in drawing Ms Williams’ unsatisfactory work performance to her attention was undoubtedly an act of discipline which given the nature of the respondent’s business was both necessary and appropriate.

1. The applicant took two days off work in December 2020 due to anxiety as per the certificate of Dr Meegoda which was clearly a reaction to the meeting with Ms Revill and Mr Fionda on 12 December 2020 referred to in the warning letter dated 21 January 2021.

2. The respondent obviously had concerns about Ms Williams’ conduct and performance as set out in that letter.

3. The report from Ms Dilek is unsatisfactory since the matters referred to in that report were either not contributory to the applicant’s injury or were a statement of the reasonable steps taken by the employer to address concerns about her conduct.

4. The applicant did indeed feel targeted by Ms Revill but that is irrelevant to the concept of discipline within the meaning of s 11A. Reference was made to the comments of Sackville AJA in Heggie where he said [at 59]:

   “The following propositions are consistent both with the statutory language and the authorities that have construed s 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 s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.

   (iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.

   (iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.

   (v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.

   (vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.

   (vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.

1. As Keating P said in Hartley v Dux Manufacturing Pty Ltd and anor [2008] NSWWCCPD 55 (Hartley):

   “47.   The question as to whether an employer’s actions are reasonable under the section is one of fact involving an objective test: it is not a matter of law (Commissioner of Police v Minahan [2003] NSWCA 239 (‘Minahan’). In Director General, Department of Education and Training v Pembroke [2006] NSWWCCPD 182, Acting Deputy President Handley said at [26]:

   ‘In determining whether the conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and the employer (Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWWCCPD 66 [‘Raskov’], at paragraph 82). If the employer can establish that its conduct was reasonable, then the employee cannot recover compensation.’

   48.    Whether the Employer’s actions were reasonable or not, depends upon the intrinsic reasonableness of its actions, taking into account relevant matters pertaining to the employee and known to the employer (Minahan); see also Abdul-Rahman v Allied Pickfords Pty Ltd [2005] NSWWCCPD 107; Pirie v Franklins Limited [2001] NSWCC 167; (2001) 22 NSWCCR 346 (‘Pirie’)). The test of reasonableness of the relevant conduct is objective. ‘Whether the action is reasonable should be attended in all the circumstances by a question of fairness.’(Minahan). The term ‘reasonable action’ therefore, should be given a broad construction (Dunn v Firth [2003] NSWCA 280).

   49.    Consideration should be given to the circumstances surrounding the ‘action’ to the extent that what occurred before and after the ‘action’ may be taken as a guide to its reasonableness or otherwise, but is not necessarily determinative of it (Buxton v Bi-Lo Pty Ltd [1998] NSWCC 13; (1998) 16 NSWCCR 234 at 249; Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454, at 458, and Pirie)...”

2. In short, my task is a balancing act, taking into account all considerations as set out above. I am not required to analyse what Ms Revill and others might have done but look at what they were up against and how they went about dealing with the disciplinary matters noted in Ms Revill’s statement.

3. The s 11A defence has been made out.
   
   

FINDINGS AND REASONS

1. As I said at the outset, it is not disputed that the applicant sustained a psychological injury, identified as an adjustment disorder, arising out of and in the course of her employment with the respondent.

2. The real issue is whether that injury was wholly or predominantly caused by the actions of the respondent with respect to performance appraisal and/or discipline within the meaning of s 11A or whether it was caused by the “bullying and harassment” by Ms Revill as claimed by the applicant.

1. A useful starting point I think is the definition of “bullying and harassment” in The Fair Work Act 2009 which states:

   “A worker is bullied at work if:

   ·a person or group of people repeatedly act unreasonably towards them or a group of workers

   ·the behaviour creates a risk to health and safety.
   
   

   Unreasonable behaviour includes victimising, humiliating, intimidating or threatening….
   
   
   Reasonable management action that's carried out in a reasonable way is not bullying.

   An employer or manager can:

   ·make decisions about poor performance

   ·take disciplinary action

   ·direct and control the way work is carried out.”

2. I have some doubts as to whether the actions of Ms Revill in particular (and others as referred to in her statement) could be regarded as bullying and harassment for reasons that follow.

3. I accept, as was submitted, that the applicant said that she had not had any “performance issues” in the 10 years of work with the respondent, and that circumstances changed when Ms Revill became the manager. That however is not relevant to the issue in dispute.

4. The impression I have gained is that the applicant had become comfortable, possibly even a little complacent in her role and clearly did not like being “disciplined” by Ms Revill.

5. There is to my mind an extraordinary disparity between how the applicant characterises herself and the opinion of others.

6. For example, the email the applicant sent to Ms Revill on 30 October 2020 paints a picture of a very angry and defensive woman, yet the applicant in her statements paints herself as a friendly dedicated member of staff.

7. In the minutes of the meeting Ms Revill had with Mary on 3 December 2020 she noted:

   “Mary mentioned that Dina arranged a staff meeting where she spent the whole time blaming staff for things that she had asked them to do… Mary stated that the team was blamed by Dina for things that they hadn't been trained in. And when questioned by the staff she would shift the blame to the old NS… Mary mentioned that all staff were in the office in tears after the meeting because of Dina's responses…”

8. This again suggests an angry woman not happy with management, and not the dedicated and “loyal worker” the applicant described herself to Dr Hong.

9. Ms Revill also noted that the applicant and Nancy “commented that they were happy… to spread the case load between themselves.” “I offered to take on some of the services both Nancy and Dina stated that they were happy to have the increased amount of services. I advised Dina that we were happy to provide extra support if needed, to which she responded no she would be fine…”

10. This is utterly inconsistent with what the applicant said. She complained in her initial statement that she had an extra work-load which caused her some stress, but Ms Revill said on several occasions that help was available if needed, even to the extent that Ms Revill herself would undertake some of the duties. These offers were not taken up by the applicant.

11. I also note that as an area manager the applicant would on occasions have to deal with “difficult centres and staff” as Ms Revill explained to her.

12. Thus I am left with some concerns as to the applicant’s credibility. I say this because of the opinions expressed by a number of people, including Mary, Samantha and Mr Fionda which contradict the applicant’s views on a number of occasions.

1. In her role as area manager I would expect that the applicant had significant responsibilities given the nature of the respondent’s business, and that failures in the proper management of the various child care centres would be extremely serious.

1. This is reflected in the issues at Prestons set out in some detail in an email from Ms Revill to Mr Fionda on 22 October 2020.

2. It is with this in mind that I am persuaded that the respondent’s actions in “drawing the applicant’s unsatisfactory work performance to her attention, in asking her to improve that performance, of suggesting ways that could achieve that end, of offering assistance and or training was ‘discipline’ using the wider sense of that word” as Neilson J said in Kushwaha.

3. The evidence suggests that when concerns were raised about the applicant’s conduct there were many offers of assistance to her to address those various concerns.

4. I am mindful of the comments made by Keating P in Hartley. I am satisfied that the actions of the employer over several months prior to the applicant voluntarily ceasing work upon receipt of the warning letter, both in meetings and emails, are a good guide to the reasonableness of those actions.

5. I am also mindful of the statement of Ms Sprod who clearly felt that Ms Revill took “an instant dislike” to many members of staff, but I cannot accept that her comments can be construed as amounting to confirmation that Ms Revill “bullied and harassed” the applicant. It is merely a statement of her own opinion of Ms Revill.

6. I make the same observations about the applicant’s claims that a number of people were on “Workcover”, that staff turnover was high, and that the insurer should investigate further. Not only is there no evidence of this but it again in my view reflects the applicant’s anger and dissatisfaction with her employer.

7. I also note that Dr Hong concluded that most of the issues described by the applicant “relate to performance and discipline matters and I agree this is the whole and predominant cause of the injury. Whether such administrative action is reasonable or not, is a matter for the appropriate expert to determine.”

1. Dr Smith was of a similar view, such that there was medical evidence to satisfy the requirements referred to in Hamad.

1. In short, the evidence overall and indeed the tone of the applicant’s evidence suggests to me that it was she who developed a serious gripe or grudge against Ms Revill, becoming unhappy with her management style. There is nothing in the evidence of Ms Revill that suggested that she “bullied” the applicant with a view to forcing her to quit her job as the applicant claimed.

2. This ties in with the meeting between Ms Revill and Samantha, which paints a picture of a difficult employee who was not amenable to being told what to do by her superior, and was herself prone to blaming others for her shortcomings.

1. The applicant relied principally on the evidence of Ms Dilek in support of her claim that she was bullied and harassed by Ms Revill. However, to my mind Ms Dilek’s report is no more than a statement of the applicant’s expressed views about the conduct of Ms Revill. In other words, she has simply accepted what she was told by Ms Williams.

2. There is nothing in the evidence to suggest that the employee “Gada” was in cahoots with Ms Revill as stated by the applicant. I have concluded that comments such as these by the applicant are again a reflection of her anger at the conduct of Ms Revill and her employer generally.

3. Similarly with the submission by the applicant that other staff members were not disciplined. It is a matter for an employer to determine such matters, and is not relevant to the applicant’s particular circumstances.

4. As can be seen, I have set out in considerable detail all the evidence before me, as well as the numerous authorities referred to by the parties. I felt it necessary not only to satisfy the parties that I have given careful consideration to all of the evidence but for my own benefit in being able to weigh up the competing opinions and submissions as they emerged throughout all the material before me.

5. In so doing, I am able to summarise by saying that I accept the respondent’s submissions.

6. The applicant I think did indeed feel “unfairly treated by her employer”, and this constantly played on her mind as she told Dr Hong. But this in itself is not evidence of bullying or harassment, rather a statement of how she felt about Ms Revill.

7. The extensive evidence from the respondent about the various problems at some of the centres under the management of the applicant more than warranted some disciplinary measures given as I said the nature of the respondent’s business.

8. I am not persuaded that she was bullied or harassed either within the definition in the Fair Work Act referred to previously (victimising, humiliating, intimidating or threatening….) or in what may be described as a lay definition. Rather, her own conduct and behaviour warranted “reasonable management action” which required the making of decisions about “poor performance” and “disciplinary action” which I am satisfied was carried out in a reasonable way.

1. I have had regard to the decision in Minahan where it was stated that “whether the action is reasonable should be attended in all the circumstances by a question of fairness” and concluded that the employer’s actions were both fair and reasonable, particularly having regard to the offers of assistance made to the applicant on several occasions.

SUMMARY

1. I am satisfied that the applicant’s accepted psychological injury was wholly or predominantly caused by the reasonable actions of her employer with respect to discipline within s 11A of the 1987 Act such that there will be an award for the respondent.