Woolley v Manildra Laboratories Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Woolley v Manildra Laboratories Pty Ltd [2021] NSWPIC 160
APPLICANT:	Susan Woolley
RESPONDENT:	Manildra Laboratories Pty Ltd
PRINCIPAL MEMBER:	Josephine Bamber
DATE OF DECISION:	2 June 2021
CATCHWORDS:	WORKERS COMPENSATION- Agreed work related psychological injury; claim for lump sum compensation; respondent disputed liability to pay compensation pursuant to section 11A of the 1987 Act; Held- respondent has not discharged its onus of proof to establish the injury was wholly or predominantly as a result of discipline or dismissal; in the alternative, a finding was made that the employer’s conduct was not reasonable.
DETERMINATIONS MADE:	1. The Application to Resolve a Dispute is amended to delete the date of injury of 28 February 2018 where ever it appears and instead insert 6 November 2019 as the deemed date of injury. 2. The respondent has not established a defence under section 11A of the Workers Compensation Act 1987. 3. The lump sum compensation claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment for psychological injury with a date of injury of 6 November 2019 (date of lump sum claim). 4. The documents to be referred to the Medical Assessor are to include the following: a. Application to Resolve a Dispute and attached documents; b. Reply and attached documents, and c. Application to Admit Late Documents filed by the respondent dated 25 February 2021.

STATEMENT OF REASONS

BACKGROUND

Susan Woolley, the applicant, was employed by the respondent, Manildra Laboratories Pty Ltd as a Quality Assurance Officer from October 1995 until her resignation on 30 April 2018. It is accepted that she developed a work-related psychological injury in the course of her employment with the respondent.
The respondent’s workers compensation insurer, in notices dated 7 September 2018[1] and 2 January 2020[2] issued pursuant to section 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputed liability to pay compensation based upon section 11A of the Workers Compensation Act 1987 (the 1987 Act), asserting that Ms Woolley’s psychological injury was wholly or predominantly caused by reasonable action taken by the employer with respect to discipline and dismissal[3].
[1] ARD p 21.
[2] ARD p 26.
[3] The notices also refer to “retrenchment” but that was not pursued at the hearing.
The claim for compensation in these proceedings is confined to lump sum compensation. The date of injury stated in the Application to Resolve a Dispute (ARD) is 28 February 2018, however at the outset of the arbitration hearing Ms Woolley’s counsel amended the date of injury to the date of the lump sum compensation claim, being 6 November 2019[4]. The respondent agreed to the amendment.
[4] T9.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing on 4 March 2021. Mr Stuart Moffet, counsel, instructed by Mr Martin Rowney, solicitor, appeared for Ms Woolley, who was present. The respondent was represented by Ms Lyn Goodman, counsel, instructed by Ms Christie Blake, solicitor, and Ms Lucinda Lacuno from the insurer, EML. The hearing was conducted on the MODRON audio-visual platform due to the Covid-19 situation.
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

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

(a) ARD and attached documents;
(b) Reply and attached documents;

(c) Application to Admit Late Documents filed by the respondent dated 25 February 2021;

(d) Written submissions of the respondent dated 26 March 2021, and
(e) Written submissions of the applicant dated 12 April 2021.

Oral evidence

There was no oral evidence. Ms Woolley’s counsel made an application to adduce oral evidence from her. This was opposed by the respondent and refused by me because of prejudice to the respondent, noting no prior notice had been given of such an application. I considered that if I were to allow the oral evidence, procedural fairness would dictate that I would need to afford the respondent the opportunity of putting any further evidence to its witnesses and that could not be undertaken on the day of the hearing. Furthermore, the Workers Compensation Division of the Personal Injury Commission operates on a front-end loaded basis with an injured worker being required to file with her ARD a statement of her evidence. There is also an opportunity to file an Application to Admit Late Documents before a conciliation/arbitration hearing and Ms Woolley could have filed an additional written statement with such an Application, but she did not. Finally, an injured worker has the ability to discontinue proceedings and re-file the same without a costs order being made by the Commission and without infringing any limitation period. Matters are listed for a telephone conference 28 days after the filing of an Application to Resolve a Dispute. I found this was the preferable way for the matter to proceed as it would give the respondent the opportunity to respond to the proposed oral evidence of Ms Woolley before the matter was listed for hearing.
Ms Woolley’s counsel was given the opportunity to obtain further instructions from Ms Woolley following the refusal of his application, but he advised he had instructions nonetheless to proceed with the hearing of the matter.
After I clarified a number of aspects of the matter with both counsel, oral submissions were commenced by the respondent’s counsel, which were sound recorded, and a copy of the recording is available to the parties. A written transcript (T) has been made from the sound recording. However, the submissions could not be concluded in the time available and the matter was completed by way of written submissions. A timetable for the provision of submissions was agreed at the arbitration hearing.
Subsequently, on 18 March 2021 the respondent sought an extension of time to supply its submissions. This was granted and, on the same day, at my request, a written direction for submissions was issued by the Commission with revised dates. However, on 9 April 2021 the applicant’s solicitors sought an extension of time to finalise their counsel’s submissions. This was granted and the time for the respondent’s submissions in reply was also extended. All submissions were therefore due by 19 April 2021. No submissions in reply were received by the Commission from the respondent and so I requested an enquiry be made as to whether they intended to file the same. By email dated 21 April 2021 the Commission was advised there are no further submissions from the respondent.

FINDINGS AND REASONS

Legal principles

The parties have agreed that Ms Woolley has a psychological injury from work-related events. However, section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent has the onus of establishing a defence under section 11A. If the respondent succeeds in establish such a defence then Ms Woolley is not entitled to receive any compensation.
In relation to the onus of proof in Nguyen v Cosmopolitan Homes (NSW) Pty Limited[5] McDougall J stated at [44]:
“A number of cases, of high authority, insist that for a tribunal of fact to be satisfied, on the balance of probabilities, of the existence of a fact, it must feel an actual persuasion of the existence of that fact. See Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. His Honour’s statement was approved by the majority (Dixon, Evatt and McTiernan JJ) in Helton v Allen [1940] HCA 20; (1940) 63 CLR 691 at 712.”
[5] [2008] NSWCA 246, Nguyen.
In Ms Woolley’s case the aspects of section 11A of the 1987 Act being relied upon by the respondent are “discipline” and “dismissal”. The respondent needs to establish two aspects in order to satisfy section 11A. Firstly, that the psychological injury was “wholly or predominantly caused” by the employer’s actions in relation to discipline and/or dismissal. Secondly, the respondent then needs to establish that the employer’s conduct in that regard was reasonable action.
In Hamad v Q CateringLimited[6] the proof required in relation to a section 11A defence dealing with the “wholly or predominantly” aspect of section 11A was discussed.
[6] [2017] NSWWCCPD 6, Hamad.
The test of reasonableness is an objective test and referred to cases such as Jeffery v Lintipal Pty Ltd[7], Baldwin v Greater Building Society Ltd[8] and Irwin v Director General of Education[9].
[7] [2008] NSWCA 138, Jeffery.
[8] [2011] NSWWCCPD 18, Baldwin.
[9] Unreported 18 June 1998, No 14068 of 1997, Irwin.
In Baldwin at [96] Roche DP stated it is necessary to have regard to all the circumstances, including the seriousness of the conduct that has led to the disciplinary action, the nature of the employer’s business and the worker’s position in that business. At [104] he also stated that mere compliance with a set procedure that the employer believes is reasonable will not necessarily mean that an employer’s conduct is in fact reasonable in all the circumstances and Roche DP cited Basten JA in Jeffery at [50].

Outline of evidence

In order to consider the parties submissions, it is helpful to recount an outline of the lay and medical evidence. There does not seem much dispute that certain events occurred, but each individual involved has a different interpretation of the events.
Individuals who have provided statements hold the following roles:
(a)    Ms Woolley, Quality Assurance Officer from October 1995 to April 2018;
(b)    Mr Wesley Davis, National Quality Manager to 2016;
(c)    Mr Greg Langusch, National Quality Manager from 2016;
(d)    Mr Ming Leung, Site Manager from February 2009;
(e)    Mr John Chilcott, Group Human Resources Manager for about 16 years, and
(f)    Mr Vaughan Behncke, contracted Management Consultant.
In October 1995 Ms Woolley commenced employment with the respondent as a Quality Assurance Officer. Her duties involved quality assurance, reviewing processes and procedures to ensure products met Australian and International food standards and also working with Japanese customers in maintaining the relationship with the Manildra Group[10]. When Mr Wesley Davis, National Quality Manager, became ill Ms Woolley was in charge of the QA team for day to day activities[11].
[10] Ms Woolley’s statement 1 August 2018 ARD p 3.
[11] Mr Leung’s statement Reply p 64.
In her supplementary statement Ms Woolley outlines her psychological history including that in 2009 she had two or three sessions with Scott Bickmore, psychologist, to develop strategies after a relationship breakup, but she did not take time off work[12]. She says in 2010 she had menopausal changes and was prescribed Citalopram, an anti-depressant, and Temaze to help her sleep[13]. She says in July 2011 the Citalopram was changed to Cipramil[14].
[12] ARD p 19.
[13] This is confirmed in Vincentia Medical Centre (VMC) medication summary, ARD p 51.
[14] Also see VCM clinical notes ARD pp 60/61.
Ms Woolley says in September 2011 when Mr Davis was suffering behavioural changes from a brain tumour she went to her doctor and she was certified unfit to work for a week, but her medication remained unchanged. The clinical notes for the Vincentia Medical Centre for 13 September 2011 record she was having problems at work with her boss bullying and making inappropriate comments and her boss was getting forgetful, telling her he had told her things, but he had not and this was creating problems at work. It is noted that she feels her depression is well controlled otherwise and she had not seen a psychologist lately. Ms Woolley wanted time off to settle the situation down. It is recorded that she had spoken to the “psych manager at work and human resources personnel coming down next week to speak to them.[15]” She says she quickly ceased taking Cipramil.
[15] ARD p 61.
On 30 August 2013 a verbal warning was given to Ms Woolley in relation to a formal complaint lodged by another worker[16].
[16] Mr Chilcott’s statement Reply p 72.
Ms Woolley states in 2013 she was overworked and discussed this with her doctor, and she was certified unfit for a week. The Vincentia Medical Centre notes include a consultation on 13 November 2013 which says “stressed at work- overworked. Walked out last Fri. Wants to take a break.” The medical certificate issued was for stress and said she was having hand therapy for tendonitis[17].
[17] ARD p 71.
Mr Chilcott says in November 2014 the chairman of the company received a complaint about Ms Woolley being rude to an employee in front of clients. A report about this complaint was prepared by Shane Manners[18].
[18] Reply 85.
In 2015 Mr Vaughan Behnke was engaged by the respondent to assist with conflict resolution[19]. He says on 25 June 2015 he was at the respondent’s plant in Bomaderry to discuss a supervisor training program when he was asked by Mr Chilcott if he could talk to Ms Woolley and Mr Davis about their working relationship.
[19] Mr Leung’s statement Reply p 65.
In September 2016 Mr Greg Langusch was appointed as the National Quality Manager replacing Mr Davis.
On 16 September 2016 Ms Woolley says as they were leaving work she said if she won lotto she would not be in on Monday; she says this was a throwaway comment[20].
[20] ARD p 5.
Mr Langusch says when he commenced the role he was briefed by the former Manager, Wesley Davis, who informed him that he had had some interpersonal issues with Ms Woolley, and he felt she undermined his leadership authority[21]. At [29] of his statement Mr Langusch says that he met with the team members and he formed the view that Ms Woolley was undermining him in his first week. The only example he gives is that he was told by Mr Davis that Ms Woolley had sent him an SMS stating, “the war begins”.
[21] Reply pp 57/58.
On 21 September 2016 a meeting was held with Mr Langusch, Ms Woolley, Mr Davis and Mr Guy Moffatt, union representative and employee of the respondent. Mr Langusch states the purpose of this meeting was to “discuss what was being communicated by the Claimant and to resolve any issues”. Ms Woolley states she was given two hours notice of this meeting and she was told it might turn into a disciplinary meeting. She says Mr Langusch had been in his role for four days and had not told her what the meeting was to be about[22]. Ms Woolley says Mr Langusch raised in the meeting the comment she had made about lotto and described it as an “outburst”. She said the meeting went on for three hours and there was no real outcome. She said she found it very upsetting and confronting that he kept asking her if there were personal issues stopping her from undertaking her work responsibilities. She said a few days earlier he had made a comment about her attitude and the amount of money she was being paid. She says she felt this was inappropriate. She said he later denied saying this.
[22] Ms Woolley’s statement dated 1 August 2018 ARD p 5.
Minutes of the meeting conclude with the statement “It was agreed at the meeting that disrespectful comments were unsatisfactory comments and these comments must stop otherwise further actions may result.”[23]
[23] Reply pp 94-96.
Mr Chilcott says in his statement that after this meeting he discussed with Mr Leung “to look at some disciplinary action”. He said this discussion concluded with the plan that they should establish and work through some mediation programs to try to resolve the issues between Ms Woolley and Mr Langusch[24].
[24] Mr Chilcott’s statement Reply p 73.
Ms Woolley refers to a further meeting on 29 September 2016 which she attended with Mr Moffatt, Mr Davis, Mr Langusch and Ms Isabel Kemp. Ms Kemp was the HR Occupational Therapist. Ms Woolley says a few days after the meeting on 21 September 2016 she spoke to Ms Kemp advised that she was concerned about being harassed and bullied. She said Ms Kemp took files notes and arranged for her to see a psychologist, Glen Williams. Ms Woolley said she had three sessions with him over about three weeks.
Ms Woolley states that in this meeting on 29 September 2016 Ms Kemp noted that during the meeting she was seeing a threatening attitude by Mr Langusch and that Ms Woolley was showing distress and did not feel safe. Ms Woolley says that Ms Kemp told Mr Langusch that he needed to watch his language and manner around disciplinary discussions. Ms Woolley says she was feeling extremely put down and totally disrespected. She says after the meeting she spoke with Ms Kemp and composed herself for the workplace[25].
[25] ARD p 7.
Mr Langusch says in his statement that he employed some degree qualified food science graduates for positions that had previously been held by contract staff. He says this changed Ms Woolley’s role as these people required less direction and so Ms Woolley had to undertake more day to day activities.[26] He says he started to recruit this staff in December 2016.
[26] Reply p 56.
Mr Langusch says in March 2017 a degree qualified QA officer was employed but she resigned after three months and disharmony with Ms Woolley contributed to her leaving.
On 8 June 2017 a meeting was held with Mr Langusch, Mr John Chilcott, Mr Moffatt and Ms Woolley. Mr Langusch says this was to discuss Ms Woolley’s behaviour in relation to attitude and support for him. He adds that they had put in place a new task management system and Ms Woolley did not use it, which made monitoring work processes ineffective. He says the outcome of the meeting was to appoint an independent investigator to review the issues and establish the root causes. Minutes of the meeting are in the Reply[27]. Ms Woolley says Mr Langusch asked her in the meeting if she had any behavioural issues and she was confronted by this question. Ms Woolley says one of the major issues Mr Langusch raised in this meeting was her failure to attend an audit. She says he had not raised this with her before the meeting or after the audit. She said Mr Langusch did not acknowledge in the meeting that at the next audit she attended even though she was on annual leave at the time and had the flu. She said at the meeting only negative matters were discussed with no positive examples. Ms Woolley says after this meeting she was in tears and had raised anxiety and was very distressed and she was becoming more fearful for herself and her job[28].
[27] Reply pp 103 to 107.
[28] ARD p 9.
The report of Shane Manners dated 1 July 2017 details his investigation. He found that Ms Woolley had been uncommunicative and uncooperative regarding Mr Langusch. He also found, as their relationship became more tense, Mr Langusch’s communication with Ms Woolley has been less than good[29]. A more detailed report dated 8 July 2017 from Mr Manners comes to the same conclusion[30]. Ms Woolley says she met with Mr Manners on 22 June 2017 and she found this difficult and upsetting. She asked for a break, but this was not given. She says the meeting lasted three hours. She says after the meeting she rang Donna Strahan in HR to let her know she was upset, and she calmed Ms Woolley down but Ms Woolley says she could not stay at work and so she went home[31].
[29] Reply pp 97-102.
[30] Application to Admit Late Documents pp 2-26.
[31] ARD p 9.

Mr Langusch says the investigator’s report was reviewed and the result was to establish a conflict resolution session between himself and Ms Woolley, to be followed by a team session to establish effective group interaction rules and clarity about responsibilities. Ms Woolley says she was shown the report in a meeting in August 2017. She said she felt totally hopeless and felt that nothing she could do would be good enough for Mr Langusch.
On 21 August 2017 Ms Helen Rebikov was appointed as a QA Officer and Mr Langusch says she reported to him in her first week about Ms Woolley’s behaviour and lack of assistance.
Ms Woolley states that in August 2017 she took two weeks stress leave and her doctor put a mental health plan in place for her regarding her stress and anxiety about the work situation[32]. The Vincentia Medical Centre notes include a consultation on 23 August 2017 about right arm pain and also stating that Ms Woolley sought “time off work, stress, bullying issues. Says she has been called into office by new manager multiple times and bosses are taking managers side…causing stress & affecting her mental health”[33]. On 24 August 2017 Dr Wells saw her again and has recorded detailed notes about Ms Woolley’s mental health. It stated:
“New manager commenced a few months ago in his first 4 days of work called Susan in for disciplinary meeting. Happened again and HR attended meeting with her. Ongoing issues with manager causing stress, poor sleep anxiety around attending work. Feels she needs help with strategy to deal with situation.”
The DASS-21 test was undertaken, and it is noted she had moderate depression and stress and mild anxiety. A Mental Health Care Plan was made[34].
[32] ARD p 10.
[33] ARD p 76.
[34] ARD p 77.
On 28 August 2017 Ms Woolley saw her doctor again. It is recorded that she was feeling better having been off work. Her sleep had improved. It is noted that she has a meeting tomorrow and she was somewhat anxious about that. There is reference to a mental health referral[35]. The records reveal that on 4 September 2017 at 10.07am the doctor’s office received a message from Ms Woolley that she decided to see Helen Rutland and asked for the doctor to do the referral[36].
[35] ARD p 78.
[36] ARD p 78.
On 5 September 2017 Mr Vaughn Behncke held separate facilitation sessions with Ms Woolley and Mr Langusch and then a combined session. He says they came to an agreement and following this he had follow up meetings with Mr Langusch and he advised that things had improved[37]. Mr Behncke says some members of the team sided with Ms Woolley and some against her. Ms Woolley says for a period after this session work seemed ok.
[37] Mr Behncke’s statement Reply p 80.
On 13 September 2017 a team facilitation work shop was held with Mr Behncke. On 23 October 2017 Dr Wells records “less work stress, mediator helpful and keeping in contact, boss better. Psychologist useful but felt going round in circles in the end.” It is noted that if Ms Woolley wants to try Lauren, psychologist, she is to let the doctor know and she will do the referral[38]. Throughout this time Ms Woolley was receiving treatment for her work-related right shoulder injury.
[38] ARD p 83.
On 9 January 2018 a team facilitation workshop was held with Mr Behncke. Mr Langusch states in the session on 9 January 2018 Ms Rebikov raised bullying and harassment by Ms Woolley and this led to Ms Woolley being upset and leaving the session for a time[39]. Mr Behncke does not refer to this but does state that Ms Woolley became upset and left the room and he attributed this to her being still at loggerheads with Mr Langusch[40]. Mr Behncke said over the next two days he had telephone debriefings with Mr Langusch and Ms Rebikov. He said Mr Langusch said things had settled down a bit. Ms Woolley says she left the meeting because she felt extremely overwhelmed and she believed she had an anxiety attack and she hid behind a brick wall[41]. She said Vicki came and got her and Mr Leung was called to the meeting.
[39] Reply pp 59-60.
[40] Mr Behncke’s statement Reply p 81.
[41] ARD p 11.
Ms Woolley says a few days after this meeting she spoke to Mr Davis for about two hours about how she was not coping with Mr Langusch and he told her to play the game and keep her head down and do the job. She says she felt much better after this meeting[42].
[42] ARD p 11.
Mr Leung states he was at the session where Ms Rebikov spoke, and she was in tears. He says another staff member, Vicki, also related that Ms Woolley had not spoken to her for an extended period of time. Mr Leung says these events were the cause for him and Mr Chilcott to review in February 2018 Ms Woolley’s behaviour. He says “we indicated that disciplinary action was likely. It was then that the Claimant introduced Rudy Oppitz, union organiser, as her support person”[43].
[43] Mr Leung’s statement Reply p 67.
Ms Woolley says on 13 February 2018 Mr Chilcott came to see her and asked if she could meet him and Mr Leung. She says she burst into tears and she asked Mr Chilcott if she could take some time off as her son had had his house broken into and some of his tools were stolen and she was very upset and worried for him. She says she took about three days off work. She says Mr Chilcott took care of everything in terms of her leave arrangements and broad support. She says she spoke to a friend at work on the Monday as she was feeling very fragile and felt like she wanted to sob. She told her friend that she was not in a good state to return to work that day. She says with her personal and the work situation she was struggling to go on[44]. She says she returned to work on the Tuesday.
[44] ARD p 12.
In emails dated from 21 to 23 February 2018 four members of staff advised Mr Chilcott that Ms Woolley’s behaviour was affecting the teams effectiveness and causing them to feel uncomfortable in the workplace[45]. It is not clear from the documents if they were asked to put complaints in writing or whether this was just coincidental, that they did at the same time.
[45] Reply pp 108-111.
Ms Woolley says she had a meeting on 23 February 2018 with Mr Chilcott, Mr Leung and Mr Oppitz. She says she was advised about the emails, but she was not shown them. Ms Woolley says she was told the emails said she was uncooperative, uncommunicative and the QA team could not work with her. The emails were shown to Mr Oppitz. She said she was distressed as she was advised that the office was dysfunctional because of her. She said she was too distressed to take notes. She says she felt management was looking to make her a scapegoat.
She says she was asked to leave the meeting at one point and the meeting finished when she was not there. She says she was told by Mr Oppitz after the meeting that there would be another meeting on Monday 26 February 2018, and she was not to return to work until then[46].
[46] ARD p 12.
On 26 February 2018 there was a meeting with Ms Woolley, Ming Leung, John Chilcott and Rudy Oppitz. Ms Woolley says her stress levels were so high. Mr Leung states at a point during this meeting they asked Ms Woolley to leave the meeting room so they could speak to Mr Oppitz as they wanted to reinforce to him the situation was serious. He says after this Ms Woolley returned to the room to collect her things, including her phone. Ms Woolley says the outcome of this meeting was that Mr Oppitz had negotiated another mediation session with Mr Behncke and herself for the next day.
Mr Behncke said there had been a number of written complaints from people in the QA area and he was asked by Mr Chilcott to conduct a coaching intervention with Ms Woolley as they desired to provide her with an opportunity to alter her behaviour and work towards becoming reintegrated with the QA team.
Mr Behncke said he met with Ms Woolley on 27 February 2018 and he was aware that there had been a meeting the day before with Mr Oppitz in attendance. He said Ms Woolley was agitated and upset because of the complaints made by the members of the QA team. He said at Ms Woolley’s suggestion he spoke to Mr Oppitz in this meeting. He said after his call to Mr Oppitz he saw Ms Woolley handling her phone and he asked her if she was recording their conversation. She denied it. Me Behncke asked her if she had recorded the meeting the day before and she admitted she had. Mr Behncke said she would need to reveal this and discuss it with Mr Chilcott and Mr Leung. Mr Behncke said she told them she made the recording because she felt she had to protect herself. He says Mr Chilcott told him that Ms Woolley was going to be suspended.
Mr Chilcott says he spoke to Ms Woolley, and Mr Behncke and Mr Leung were present. Mr Chilcott says he asked Ms Woolley if she had recorded the previous meeting and she said she had. Mr Chilcott says he asked her for her phone, and he had their IT area identify the recording and they said she had attempted to send it to another employee. Mr Chilcott says he told Ms Woolley that she had lost his trust. He says he believes that Mr Behncke or he said that forwarding the recording might be illegal[47].
[47] Mr Chilcott’s statement Reply p 74.
Mr Leung says in his statement that they confronted Ms Woolley and she admitted to recording the meeting from the day before. Mr Leung states “we explained that in our view she may be breaking the law. We viewed this as a very serious matter and was a show cause why the Claimant shouldn’t be terminated situation”. He says they tried to get hold of Mr Oppitz, but he was not available. At [38] of his statement Mr Leung states that Ms Woolley “was in the process of being counselled I do not believe a warning had been issued”.
Mr Chilcott states that at the meeting they said they would meet again to discuss the matter, but they did not as Ms Woolley went off on sick leave.
Ms Woolley says in this meeting Mr Chilcott advised her that she was to receive a first and final warning in relation to her work performance. She said the mediation session did not conclude. Ms Woolley says she was tremendously traumatised by the events discussed and she was physically shaking. She was advised that her position was being suspended[48]. Ms Woolley states on the afternoon of 27 February 2018 she left work early because she could no longer cope with the situation at work and she went to see her general practitioner. She says she spoke to the mental health nurse for two hours and had an emergency consultation with her doctor.
[48] ARD p 13
In her statement dated 31 May 2020 Ms Woolley states she was upset by the personal comments made and the way the mediation and her subsequent suspension was conducted. She says on one occasion she took a recording device in to the meeting to protect herself. She says when the recording device was found she was spoken to in a threatening way and told she could go to prison for up to five years due to recording the meeting. She says this was a shock to her and she was very upset/shaken by the comment both due to the force/aggression of the comment and because it made her fear for her personal future[49].
[49] ARD p 17.
On 27 February 2018 it is recorded in the Vincentia Medical Centre notes that Ms Woolley presented in a “+Distressed state”. As Dr Wells was busy, she was seen by Nicola Rice. Ms Woolley had suicidal thoughts. The following is recorded:
“Had meeting with managers and recorded it without their consent- was asked to leave the meeting for a short time, left phone there without thinking and they found it recording. Have threatened that she might go to jail for 5 years. Extreme distress re this- didn’t know it was illegal to record conversation.
Has been stood down from role since Friday afternoon last week due to the complaints against her: Not a team player, Not communicative, Not Helpful to others, team has to walk on egg shells around her. Disputes this = doesn’t communicate as isolated form team due to their attitude towards her, manager ‘has it in’ for her. Meeting with union rep and managers on Thursday- outcome will be advised to Susan over the phone![50]”
[50] ARD p 85.
An urgent appointment was made for Ms Woolley to see Theresa Korman and Fluvoxamine and Diazepam were prescribed for depression and anxiety. Ms Woolley also saw Dr Wells that day and on 28 February 2018. Further consultations are recorded on 1, 5, 12, 20, 21 and 28 March 2018 and 10, 20 and 24 April 2018 and regularly thereafter. These have all been read by me, but it is not necessary to summarise them all in these reasons.
In a supplementary statement dated 1 December 2020 Ms Woolley says although the events of February 2018 were significant, they occurred against a background of bullying behaviours that had continued for around 18 months. She says she had experienced stressors and symptoms before February 2018 such as in the period between September 2016 to February 2018[51].
[51] ARD p 19.
On 30 April 2018 Ms Woolley resigned[52]. She entered into a deed of release which provided she was to be paid $36,063.14 for 20 weeks severance pay, $14,661.92 for 325.25 hours of annual leave, $2,565.84 annual leave loading and $32,039.84 for 710.75 hours long service leave.[53]
[52] Reply p 180.
[53] Reply p 181.
In her statements Ms Woolley describes this resignation as a forced dismissal.

Dr Whetton

Dr Peter Whetton, psychiatrist, examined Ms Woolley for the insurer and provided a report dated 5 September 2018[54]. The history given to the doctor by Ms Woolley was that in February 2018 she “was told ‘out of the blue’ that she was to be suspended from work and she was told to leave. She describes herself as being ‘in shock, disorientated and didn’t know what to do’”. The doctor relates details of her subsequent treatment. Dr Whetton records there was no family history of mental illness and that about 10 years earlier Ms Woolley had three sessions with a counsellor at the point of a relationship breakup, but there has been no history of psychological treatment.[55] This is not correct as the records related previously from the general practitioner demonstrate.
[54] Reply p 186.
[55] Reply p 188.
Ms Woolley informed Dr Whetton that problems commenced in September 2017 with the arrival of the new quality manager, Mr Langusch, and that there was a systematic well-planned strategy to remove her from her position. She told the doctor that she felt that Mr Langusch repeatedly criticised her. She said she began to withdraw herself to avoid conflict with him. She also complained that Mr Langusch did not have knowledge or experience in her area of work. Dr Whetton noted that the history given by Ms Woolley is at variance with the history given by other parties.
Dr Whetton in this report stated from the history given by Ms Woolley she warranted a diagnosis of an adjustment disorder with anxiety when she ceased work in February 2018. He says it was the shock of the dismissal which led to her described breakdown and injury in February 2018.
Dr Whetton re-examined Ms Woolley and provided a further report dated 17 February 2021. The doctor had available to him Ms Woolley’s statements, the factual report dated 7 August 2018, reports from Dr Takyar and the clinical records from Vincentia Medical Centre and Dr Jaspreet Singh. The doctor was asked his opinion about section 11A whether Ms Woolley’s injury was wholly or predominantly caused by the employer’s actions in relation to discipline, retrenchment or dismissal. Dr Whetton responded:
“On further consideration from my earlier report, this is a vexed question since there are reported multiple complaints made against Ms Woolley at work in regard to difficult behaviour and her being described as having taken an instant dislike to Greg. From her history she considers that she was badly treated and managed reaching a point where she resigned her job.
Which version of events in correct and to be preferred I cannot say.”

Dr Singh

Reports from Dr Singh dated 14 March 2019, 3 October 2019, 5 February 2020 are contained in the respondent’s Application to Admit Late Documents and deal with Ms Woolley’s treatment from 2019.

Dr Takyar

Dr Takyar, psychiatrist, provided medico-legal reports for Ms Woolley dated 25 June 2019[56] and 18 November 2020[57]. In the first report Dr Takyar states that Ms Woolley told him that it all started when they told her that her job was suspended in February 2018. She said she was not able to take notes at a prior meeting because she was so distressed so at the meeting on Monday, she recorded it unbeknown to her employer. She said the next day she had a meeting with a work counsellor, and she was asked if she had recorded the meeting and she said yes. She advised Dr Takyar that she was told she could be put in jail for five years. Ms Woolley also told Dr Takyar of interpersonal difficulties she had had with Mr Langusch in the previous year. Dr Takyar records that Ms Woolley felt that change in her mental state only occurred when she was suspended and not due to the interpersonal events because she had a very strong personality and she knew her job well enough. She said she coped with him by shutting down and doing what she had to do, and she had resilience so that he could not hurt her, and she could get through her day.
[56] ARD p 34.
[57] ARD p 45.
Dr Takyar in the first report did not have a history of her previously taking anti-depressant medication. The doctor diagnosed an adjustment disorder with mixed anxiety and depressed mood (chronic). He noted the findings of Dr Whetton in his first report and was aware of the respondent’s factual investigation and witness statements. In terms of causation, he repeated Ms Woolley’s assertion that her mental state did not change until she was told her position was suspended after recording the meeting[58].
[58] ARD p 41.
In his second report the doctor refers to having been sent the records from Vincentia Medical Centre. He notes that they contained Workers Compensation Certificates from 23 August 2017. However, this certificate related to a work injury to her right shoulder and there are no psychological symptoms referred to therein[59]. Dr Takyar notes the past history summary of the medical practice shows workplace bullying and stress at that time, provision of medical certificate and mental health focused consultations from that time.
[59] Reply p 118.
Dr Takyar states that the clinical notes suggest that work issues had a wider time frame than reported by Ms Woolley. The doctor finds “On balance, it is my view that there was a psychological injury caused by the workplace events prior to what was reported at his examination with Ms Woolley based on these clinical notes.” The doctor does not express a view about what was the whole or predominant cause of the psychological injury.[60]

[60] ARD p 46.

Wholly or predominantly caused

At the outset of the arbitration hearing I asked Ms Woolley’s counsel what events he asserted caused the psychological injury. He advised that Dr Whetton, the respondent’s medico-legal psychiatrist, and Dr Takyar, Ms Woolley’s medico-legal psychiatrist, both were of the opinion that Ms Woolley was not suffering any symptoms of a mental illness until she reached 2018 and in particular the events in February 2018. Counsel stated that earlier events in the lead-up over two years do not seem to have been a cause, but they are relevant to give context as to what was reasonable action by the employer[61].
[61] T10.
However, in his written submissions Ms Woolley’s counsel at [49] asserts that the work events consisting of the whole or predominant cause of the injury include not just the events in relation to the dismissal but events in 2016 and 2017. Counsel submits at [50] that when Ms Woolley saw her general practitioner in June 2017 there were two factors evident, being bullying and her bosses actions in taking Mr Langusch’s side. Attention is also drawn to mediation and QA group sessions, wherein Ms Woolley had a panic attack in January 2018. It seems to be argued that these events were causative, but do not fall within “discipline” in section 11A. Counsel also relied upon the statement made to Ms Woolley in the meeting on 27 February 2018 that secretly recording the meeting could result in jail time. It is argued this statement does not fall within the elements in section 11A.

Ms Woolley’s counsel relies on Hamad and submits the respondent does not have any properly informed medical evidence on the “wholly or predominantly caused” issue. At [44] of Ms Woolley’s submissions four points are made as follows:
“a.     The evidence neither literally nor substantively engages with the elements of the section;
b.     The ultimate opinion is weakened beyond any utility by the inadequacy of the history;
c. Although the applicant contributed to a degree to the content of the history relied upon, she did so via her honest thought, we say, for the purposes of the exercise to be undertaken under section 11A, mistaken expression of a medical opinion as to when she was first injured, and
d.     The respondent, despite having the advantage of a second medical examination, at a time when all relevant factual evidence was to hand, including the notes of the GP, which illuminated the whole issue surrounding the onset of symptoms, did not in the end procure an opinion that was on point and based on a proper history.”
Counsel is critical of Dr Whetton’s opinion submitting that in his second report he did not refer to the general practitioner’s notes or seek comment from Ms Woolley about her treatment in 2016 and 2017. It is argued that he did not have a fair climate on which to express his views, and he did not support his opinion with adequate reasoning. Ms Woolley’s counsel submits that Dr Whetton’s opinion is of no use to establish the section 11A defence. It was submitted that Hamad is authority for the proposition that if there are competing factors, such as in Ms Woolley’s case, the doctor needs to consider them and express a view about the whole or predominant cause of the psychological injury.
It is argued that in June 2017 the general practitioner’s notes support two complaints being made by Ms Woolley. That there was bullying by Mr Langusch and the bosses took his side. It is argued that this action by the bosses is not relevant to discipline in section 11A. It is also submitted that the mediation and group QA sessions were not “discipline” and Ms Woolley experienced what she called a panic attack in the session in January 2018. Finally, it is submitted that being told she could go to jail for sound recording the meeting is not part of “discipline”. Therefore, Ms Woolley’s counsel submits the psychological injury was wholly or predominantly caused by discipline by the presence of these other factors and due to Dr Whetton failing to provide a properly informed opinion about such matters.
The respondent in its submissions at [41] asserts that Ms Woolley’s presentation to her doctor’s surgery on 27 February 2018 is consistent with her suspension from work being the whole or predominant cause of her psychological injury. It is submitted that after this date she was certified unfit for work, referred to Ms Korman, counsellor, and prescribed medication. The respondent also draws attention to Ms Woolley’s attendance on her doctor’s practice on 24 April 2018 after a meeting in which she said she had been advised it was likely she would lose her job. At [44] it is submitted that Ms Woolley’s presentation then is consistent with that displayed by her after the suspension. It was argued that the cessation of employment was a constructive dismissal whereby she was allowed to resign, and this was the predominant cause of her injury.
At [45] of the respondent’s submissions it is argued to the extent the Commission accepts that Ms Woolley’s psychiatric condition was caused not only by her suspension and dismissal from employment, but also due to the difficulties with Mr Langusch, it is submitted that his actions and that of the company all related to discipline. Reliance was placed on the decision in Kushwaha v Queanbeyan City Council[62] that bringing to Ms Woolley’s attention that her behaviour was not acceptable and encouraging a change in that behaviour comes within the concept of “discipline” in section 11A of the 1987 Act. The respondent argues that a broad view has been taken of the phrase in section 11A “with respect to discipline” such as discussed in Department of Education and Training v Sinclair[63] where the Court of Appeal referred to the entirety of conduct with respect to discipline is relevant and sometimes it is not possible to isolate the effect of a single step.
[62] [2002] NSWCC 25, Kushwaha.
[63] [2005] NSWCA 465, Sinclair.
As mentioned earlier the respondent has the onus of proof to establish the section 11A defence. It is difficult to discern that the respondent has discharged it onus of proof given Dr Whetton’s answer is that it is a “vexed question” when he was asked in his second report about the whole or predominant cause of the psychological injury and whether it is due to discipline or dismissal. The doctor when giving this answer acknowledges that there are reported multiple complaints about her behaviour, but also her view was that she was badly treated. He merely says he cannot say which version is correct. However, what the doctor does not do is identify the earlier events such as:
(a)    in 2016 when Ms Kemp arranged for Ms Woolley to see Glen Williams, psychologist,
(b)    in August 2017 when Ms Woolley was diagnosed by her general practitioner as having moderate depression and anxiety and had two weeks off work and follow up and ongoing treatment with a psychologist,
(c)    on 9 January 2018 in the facilitation session with the QA group Ms Woolley leaving the room upset,
(d)    on 13 February 2018 Ms Woolley bursting into tears when talking to Mr Chilcott about her son and taking three days off work and telling a friend she was feeling very fragile and with her personal and work situation she was struggling to go on, and
(e)    Ms Woolley advising her stress levels were so high in the meeting on 26 February 2018 that she could not take notes.
These events occurred before Ms Woolley was suspended. I acknowledge that Dr Whetton’s task, and also that of Dr Takyar, was made more difficult because Ms Woolley gave them the history that her mental state deteriorated after the suspension and being told she could go to jail for five years for recording the meeting.
Dr Whetton, in report dated 5 September 2018, expresses the opinion that it was her dismissal from the respondent which led to the adjustment disorder with anxiety[64]. However, in that report he does not consider the matters I have referred to. In his second report, when he had the records from the Vincentia Medical Centre, he does not identify potential causes and provide reasons as to which would have been the whole or predominant cause. In Hamad it is acknowledged that a psychological injury can be caused by accumulation of factors and it is necessary for the respondent to have expert opinion about the whole or predominant cause. The doctor does not even consider if it was being suspended that was the cause of the psychological injury or being told she could be jailed for five years, or both. These were matters that needed to be explored with Ms Woolley and then a reasoned opinion provided.
[64] Reply p 186.
The respondent, to discharge it onus of proof, does not necessarily have to rely on evidence from its own expert doctor, it can rely on treating medical evidence and from the worker’s expert. But in this case, there is no treating opinion about the whole or predominant cause and Dr Takyar’s opinion does not assist the respondent.
This is not a matter that I can determine without expert opinion. Clearly the suspension and being told she could go to jail for five years were significant events, as demonstrated by the fact that they feature in the clinical notes recorded on 27 February 2018 by Dr Wells when Ms Woolley was extremely distressed and had suicidal thoughts. However, the role played by the antecedent events is not able to be discerned by me without expert opinion. Dr Takyar considers they contributed to the psychological injury.
The respondent attempts to overcome this shortcoming in its evidence by arguing that, in any event, the antecedent events were all part of the disciplinary process. An obvious point against this is that raised by Ms Woolley’s counsel that the sessions held by Mr Behncke such as on 9 January 2018 cannot be considered disciplinary. This event was attended by the whole staff and was not just confined to Ms Woolley. The object of the session was to improve the QA team’s interactions with each other.
Accordingly, I find that the respondent has not discharged its onus of proof to establish a defence under section 11A of the 1987 Act.

Reasonableness

In the event that I have erred in concluding the respondent has not discharged its onus of proof relating to the whole or predominant cause of the psychological injury, it is necessary to consider whether the employer’s actions were reasonable. If one were to assume that the whole or predominant cause of the psychological injury was the action the employer took to suspend Ms Woolley, I accept this should be viewed as part of discipline. It has been argued it was constructive dismissal but at the time she was suspended it was not clear that she would be terminated. There was to be another meeting which did not occur due to Ms Woolley’s mental illness. While I accept it may have been reasonable to suspend Ms Woolley’s employment, I am not satisfied that the way this was done was reasonable.
She was in a mediation session with Mr Behncke when he ascertained she had recorded the meeting the day before. He had Mr Chilcott and Mr Leung attend the mediation session, and the recording was raised with Ms Woolley. I find to raise a matter they found so serious as to suspend her without a support person present was not reasonable, particularly since she had previously used the union representative as a support person and because Mr Chilcott was aware that only a couple of weeks beforehand Ms Woolley had taken leave due to personal distress. Apart from that, I find for her to be told she could face five years jail in such a way was not reasonable.
The test of reasonableness is an objective one. I consider what would have been reasonable is for a formal meeting to have been held a few days later, with a support person present, with her to have been given in advance a written document setting out the concerns they wished to raise and asking for her response. Ms Woolley told the doctor she did not know it was illegal to record a meeting, it is not clear from the respondent’s witnesses statements if she was given an opportunity to explain herself.
Furthermore, if the earlier events form part of the disciplinary process that are the whole or predominant cause of the injury, I find that for Mr Langusch to hold a disciplinary meeting with Ms Woolley four days after he commenced in the Manager role was not reasonable. For him to cite her comment that if she won lotto she would not come back to work as a factor was not reasonable. I accept Ms Woolley’s assertion that this was a throwaway line. Objectively, I find it is the type of comment that could be often expressed in a workplace as a throwaway line. Furthermore, to take action because Ms Woolley sent a text to her former manager “the war begins” as part of a formal disciplinary meeting seems an overreaction. More reasonable would have been to use management skills to develop a cooperative relationship with Ms Woolley. To go to a formal disciplinary meeting four days after starting, viewed objectively, fuelled the interpersonal difficulties that developed between Mr Langusch and Ms Woolley. Having stated these findings, I do not seek to diminish that it seemed to be a challenge for Mr Langusch, new in his role, in having to deal with Ms Woolley who was less than welcoming and unreasonably unhelpful. However, my task is to determine if the respondent has discharged its onus of proof and I find for the above reasons it has not.
Accordingly, I find that the respondent has not established a defence under section 11A of the 1987 Act.
I order that the lump sum compensation claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment for psychological injury with a date of injury of 6 November 2019 (date of lump sum claim).
The documents to be referred to the Medical Assessor are to include the following:

(a)    ARD and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents filed by the respondent dated 25 February 2021.

[2021] NSWPIC 160

2 June 2021