Wright v Findex (Aust) Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wright v Findex (Aust) Pty Ltd [2025] NSWPIC 113
APPLICANT:	Guy Wright
RESPONDENT:	Findex (Aust) Pty Ltd
MEMBER:	Cameron Burge
DATE OF DECISION:	26 March 2025
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; weekly compensation and medical expenses; whether the applicant’s accepted psychological injury was wholly or predominantly caused by the reasonable actions of the respondent with respect to performance appraisal and/ or discipline; the fact of the applicant’s injury is not in issue; the respondent alleges it was caused by reasonable actions and relies on section 11A; Held – when examining question of causation a commonsense evaluation of the causal chain must be undertaken; Kooragang Cement Pty Ltd v Bates followed; the defence under section 11A is two-pronged; the conduct relied on must not only be the whole or predominant cause of the injury at issue and it must also be reasonable; the reasonableness or otherwise of the conduct relied on is an objective matter to be decided having regards to what was appropriate in the circumstances; balancing the consequences of the conduct relied on against the reasons given for it; Ritchie v Department of Community Services applied; when having regard to the reasonableness of any conduct relied on the manner and timing of the conduct together with its outcome must be considered; Ivanisevic v Laudet Pty Ltd (unreported 24 November 1998 per Truss CCJ); the evidence discloses the applicant was subjected to ridicule and being addressed in an angry manner by his manager at a virtual meeting in front of several colleagues; in the circumstances, the conduct relied on by the respondent was not reasonable and the defence under section 11A must therefore fail; capacity for employment; assessment of the applicant’s assessment after a period of total incapacity; finding the applicant has capacity for employment on restricted hours and duties at a residual rate; respondent ordered to pay applicant weekly compensation and medical expenses.
DETERMINATIONS MADE:	The Commission determines: 1. The claim for permanent impairment compensation is discontinued. 2. The applicant suffered a psychological injury in the course of his employment with the respondent, with a deemed date of injury of 12 June 2023. 3. The applicant’s injury was not wholly or predominantly caused by the reasonable actions of the respondent with respect to discipline and/or performance appraisal. 4. At the time of his injury, the applicant’s pre-injury average weekly earnings exceeded the statutory maximum pursuant to s 34(1) Workers Compensation Act1987, as indexed from time to time. 5. As a result of his injury, the applicant was totally incapacitated for employment from 27 December 2023 to 18 December 2024. 6. From 19 December 2024 to date and continuing, the applicant has been partially incapacitated for employment with a residual capacity to earn of $660 per week. 7. The respondent is to pay the applicant weekly compensation pursuant to s 37 of the Workers Compensation Act1987 as follows: (a) from 27 December 2023 to 31 March 2024, at the rate of $1,938.88 per week; (b) from 1 April 2024 to 30 September 2024, at the rate of $1,998.16 per week; (c) from 1 October 2024 to 18 December 2024, at the rate of $2,018.40, and (d) from 19 December 2024 to date and continuing at the rate of $1,736.85 per week. 8. The respondent is to pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the Workers Compensation Act1987. 9. The parties have liberty to apply within 14 days, but only in respect of the calculations of the weekly benefits payable. A brief statement is attached setting out the Commission’s reasons for the determination.

STATEMENT OF REASONS

BACKGROUND

There is no issue the applicant, Guy Wright, suffered a psychological injury in the course of his employment with Findex (AUST) Pty Ltd (the respondent), with a deemed date of injury of 12 June 2023.
At the time of his injury, the applicant was employed as the National Partnership Manager for the respondent. There is likewise no issue his pre-injury average weekly earnings (PIAWE) exceed the statutory maximum set out in s 34(1) of the Workers Compensation Act1987 (the 1987 Act), as indexed from time to time.
The applicant alleges his injury was caused as a result of interpersonal conflict, bullying and poor management on the part of the respondent. For its part, the respondent denies liability for the injury and alleges it was wholly or predominantly caused as a result of the respondent’s reasonable actions with respect to performance appraisal and/or discipline.
In addition to the liability dispute, there is also a live issue as to the applicant’s incapacity arising from the injury at issue.

ISSUES FOR DETERMINATION

The parties agree that the following issues remain in dispute:
(a) whether the applicant’s injury was wholly or predominantly caused by the respondent’s reasonable actions with respect to performance appraisal and/or discipline, and
(b) if the answer to (a) is in the affirmative, the extent to which the applicant has been incapacitated as a result of his injury.
There is also a claim for a general order for medical and treatment expenses pursuant to s 60 of the 1987 Act, which claim will follow the outcome of the liability dispute.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

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.
The matter was listed for hearing before me on 20 March 2025. At the hearing, the applicant was represented by Mr Hickey of counsel. The respondent was represented by Mr Necovski of counsel
At the outset of the hearing, the applicant sought to lead additional oral evidence in relation to his post-injury employment. After hearing from both counsel, that application was refused.
The proceedings initially claimed permanent impairment compensation in addition to weekly benefits and medical expenses. At the hearing, the applicant’s claim for permanent impairment compensation was discontinued.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination:
(a)    Application to Resolve a Dispute (the Application) and attached documents;
(b)    Reply and attached documents;
(c)    applicant’s Application to Lodge Additional Documents (ALAD) dated
25 February 2025 and attachments, and
(d)    applicant’s Wages Schedule.

Oral evidence

There was no oral evidence called at the hearing.

FINDINGS AND REASONS

Section 11A Defense

It is trite to say that s 11A of the 1987 Act contains two limbs, namely a requirement the conduct relied on by the employer was the whole or predominant cause of the worker’s injury, together with the conduct relied on being reasonable.
An employer which seeks to make out a defence pursuant to s 11A carries the onus of establishing that defence: Pirie v Franklin’s Ltd [2001] NSWCC 167.
“Wholly” and “predominantly” are separate concepts and the finding of one or the other needs to be considered. The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused”. The test of causation to be applied is that set out in the oft-cited paragraph of his Honour Kirby P (as he then was) in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang).
In this matter, the respondent relies on a course of conduct over several months which it alleges constituted either performance appraisal or discipline and which it alleges was the whole or predominant cause of the applicant’s injury. In such cases, the authorities make it clear that in order to discharge its onus of proof, the respondent must have medical evidence which deals with the question of causation: see Hamad v Q Catering Ltd [2017] NSWWCCPD 6 (Hamad).
The respondent, Mr Hickey appropriately conceded, has notionally satisfied the requirements of Hamad as it relied on reports from an independent medical examiner (IME) Dr Whetton, who opined the conduct relied on was the principal cause of the injury at issue. It must, however, be noted the applicant did not concede that Dr Whetton’s opinion should be preferred.
Consistent with the decision in Hamad, medical evidence in a case such as the present one is required which addresses the relative causative contributions between various factors before a finding as to whether any reasonable actions of a respondent “wholly or predominantly” caused the injury at issue.
In order to succeed under s 11A, the respondent must not only show the requisite causal connection between its actions and the applicant’s injury but must also satisfy the Commission its actions were reasonable.
Considering the meaning of reasonableness, Geraghty J in Irwin v Director - General of Education NSWCC 14068/97 on 18 June 1998 said:
“…the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the objects of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
There is also no question that when considering the concept of reasonable action, the Commission is required to have regard not only to the end result of the conduct, but to the manner in which that result was affected: see Ivanisevic v Laudet Pty Ltd (unreported
24 November 1998 per Truss CCJ).
The approaches set out in Irwin and Ivanisevic were quoted with approval by Foster AJA (Sheller and Santow JJA agreeing) in Commissioner of Police v Minahan [2003] NSWCA 239 (Minahan) where his Honour said:
“I prefer the construction which has been accorded to it in the decisions in the Compensation Court referred to in this judgement and in his Honour’s judgement. The words ‘reasonable action’ in a statute dealing with workers’ compensation rights of employees should be given a broad construction, unfettered by consideration as to whether the employee can or cannot also bring an action at common law against the employer, founded upon a breach of duty of care.” At [42]
In Ritchie v Department of Community Services [1998] 16 NSWCCR 727, Armitage J said:
“It is apparent that the test in this case is an objective one where one must weigh the consequences of the respondent’s conduct against the reasons given for it. It follows, of course, from the objective nature of the test that the evidence given by the applicant as to the perceived unreasonableness of the respondent’s conduct or from the respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue.”
Reasonableness is judged having regard to fairness appropriate in the circumstances, including what went before or after a particular action: see Burke J in Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454. In Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45, Armitage J stated, “only if the employer’s action in all the circumstances was fair could it be said to be reasonable”.
His Honour’s reasoning was consistent with the decision Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie), where it was held the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time the action is taken.
The applicant relies on a course of events during his employment with the respondent which he says led to his injury. I do not propose to set out in full the evidence surrounding those incidents in these reasons. However, it is appropriate to provide a precis of the applicant’s evidence.
On 14 November 2022, the applicant received an email from the respondent at 7.05pm which requested he meet with two managers the next day in order to discuss “changes within the business that affect [my position] and to commence consultation with [me] about these changes”.
The applicant attended a meeting at 3.00pm on 15 November 2022 via video conferencing facility with his wife as a support person. At the meeting, managers from the respondent set out the changes to the business and explained how they were reducing relevant numbers and going into a consultation process. The managers requested feedback and input on the right approach to take and provided the applicant with a 48-hour period to provide such feedback, after which they would then contact and notify the people who might be impacted by the changes via email advising they were to be made redundant.
Having told the applicant he had 48 hours to provide feedback, the respondent forwarded him an email just six hours after the meeting and before he had provided his feedback, telling him his role was impacted by the changes and confirming he would be made redundant.
The applicant responded the next day at 6.35am advising of the effect of the respondent’s actions on him. He requested a change of time to a further scheduled meeting, which was moved to 16 November 2022 at 12.30pm.
At the 16 November 2022 meeting, the applicant was advised he could apply for other roles within the organisation and was given some time to consider those roles.
On 17 November 2022, a colleague of the applicant advised him the role of National Partnership Manager was going to become available, as the current occupant in the role,
Mr Smith, was to be made redundant. The applicant was encouraged to apply for the job, which became available on 18 November 2022, at which time he registered his interest. The applicant then undertook an interview process and was notified he was successful in obtaining the job on 28 November 2022.
Once the applicant commenced in this role, he realised Mr Smith, no doubt in a fit of pique, had deleted all of the records of the work which he had undertaken in the previous six months. The applicant alleges that shortly after he commenced his new role, his supervisor, Kristen Brander was on leave and therefore unavailable to provide guidance, and there were no Key Performance Indicators (KPIs) provided to him for his new role.
The applicant states there was no handover, no clearly defined goals and no job description for his new position.
The applicant then states his work was stressful between December 2022 and April 2023, particularly involving preparation for a franchise council conference as he was still getting used to his new position.
On 28 April 2023, there was an event briefing for the conference, which the applicant described as leaving him feeling very anxious. He states that during the meeting, Ms Brander was aggressive, angrily told him he had not understood what she had asked, and that she thought the applicant clearly had a problem in not understanding the tasks set for him. There were several other people in attendance at the meeting and the applicant describes the interaction with his boss as deeply embarrassing and stressful.
There is no issue that after the meeting, the applicant reached out to Ms Begg, who worked in the respondent’s Brisbane office. Ms Begg, who had been in attendance at the virtual meeting, told the applicant she could understand why it was hard to tell what Ms Brander had expected of him. In her statement, Ms Begg considered it was inappropriate of
Ms Brander to raise her issues with the applicant in a public meeting in the manner which she did.
On 8 May 2023, the applicant again attended a Teams meeting which included Ms Brander. It was one week before the franchise conference. The applicant gave Ms Brander a briefing of preparations for the event, and approximately 20 minutes into the meeting, Ms Brander allegedly said “that’s good, but I would like to talk about something else” before saying “I’d like to talk about your role, how do you think you’re going in your role?”.
The applicant said:
“Kristen, I am so deeply involved in the franchise event that I have not been thinking about my role holistically, so I’m not really prepared to talk about it. I’m happy to talk about it but I need time to pull myself out of this event and to look over the role and give you a reasonable response.”
According to the applicant, Ms Brander insisted she wished to discuss his performance immediately, so he said words to the effect of:
“Considering that I started at the end of December, and you were away until the beginning of January, then I went away, so I didn’t really start working until the end of January and considering we had nothing to go off, we have worked though our first conference and I am enjoying the role, I think I’m happy with my performance.”
Ms Brander then said: “I can’t believe you said you were going well in the role”.
According to the applicant, at this point he was physically shaking, at which time Ms Brander said, “this should have been done in January”, to which the applicant replied, “I’ve got to go, I’ve got to go and see a doctor”. He then forwarded an email to Ms Brander indicating he felt blindsided by what she raised today and that he was unable to work.
The applicant returned to work on 11 May 2023. A week later, he had a meeting with human resources and with Ms Brander. The applicant continued to work in his role and specifically on completing a project which he had to present to Ms Brander on 26 May 2023.
On the evening of 23 May 2023, Ms Brander indicated she wanted to bring the meeting forward to the following day. The applicant had not yet completed his preparation for the meeting and reacted badly describing himself as having had a breakdown on 24 May 2023, at which time he left work.
The respondent in part relies on a statement of Ms Brander. The applicant objects to any weight being given to that statement, as it is unsigned. No explanation for the statement being unsigned has been provided, and Mr Necovski, whilst relying on it, did not substantively respond to Mr Hickey’s submission that it should be given no weight.
Given the statement is unsigned, I decline to give it any weight. Notwithstanding the rules of evidence do not apply in proceedings before the Commission, it is axiomatic to say that witnesses must adopt their evidence by signing statements. As things stand, the document cannot be said to be Ms Brander’s evidence. The aetiology of the document and its contents is not known, and I therefore decline to accept the document or to give it any weight.
The respondent asserts the conduct on which it relies in April and May of 2023 constituted performance appraisal and/or discipline. It is questionable as to whether at least part of the conduct would fall within either category. Plainly part of the conduct which the evidence, both lay and medical, discloses was causative of the applicant’s injury was Ms Brander’s conduct in the meeting on 8 April 2023 when she was aggressive and deprecating towards the applicant in front of their colleagues.
I have no difficulty accepting the evidence of Ms Begg and the applicant that such conduct was inappropriate. Plainly, the conduct cannot be said to fall within a disciplinary process, coming as it did it on an ad hoc basis and without the applicant having any support person with him. Moreover, no disciplinary consequences flowed from the meeting.
Neither can the meeting on 8 April 2023 be said to be part of a performance appraisal process. No process is identified as having been followed in the meeting, and if it was, the applicant was given no notice of it.

Additionally, there is no evidence that Ms Brander’s comments to the applicant in their meeting on 8 May 2023 in which she described his performance as poor were part of a process of performance appraisal. There is no suggestion the applicant was advised his performance was to be discussed at the meeting, or what processes would flow from such a discussion.
If, as is alleged by the respondent, the conduct of Ms Brander fell within either performance appraisal or discipline, such conduct was not, in my view, reasonable.
This is because the applicant was not given any notice of concerns regarding his performance; was not provided with the opportunity to have a support person at the meeting in which those concerns were raised; was not informed of the specific alleged deficiencies in his performance; was not advised any performance improvement plan was to be implemented, what that plan would entail or how long it would last. Nor was the applicant informed of any disciplinary process which would take place. Those seven matters aside, the respondent’s conduct was exemplary.
As noted, reasonableness includes not only the conduct of an employer but the timing and manner in which such conduct was carried out.
In my view, the above conduct falls well short of what could be described as reasonable, notwithstanding Mr Necovski’s heroic submissions to the contrary.
Having found this conduct, which is central to the defence under s 11A to be unreasonable, it follows the defence must fail.
Given the defence under s 11A is a two-limbed one, it is unnecessary to make formal findings as to whether the conduct relied on by the respondent was the whole or predominant cause of the applicant’s injury.
However, I make the following brief comments.
I have no difficulty in accepting the applicant as a witness of truth, and in accepting the cause of his injury was multifactorial.
The conduct in April and May of 2023 was doubtless a significant factor in the onset of the applicant’s injury. However, he also gives persuasive evidence of a handover into a new and important role without clear guidance, supervision, establishment of KPIs and without set goals and training. It is apparent the applicant was working in a highly stressed environment in a role with which he was not familiar and was doing his best to carry that role out.
I also have no doubt the events in November 2022 were, at least in part causative of the applicant’s injury, noting he was initially told of potential redundancies and reorganisation of the workplace (a matter upon which the respondent does not rely as part of its s 11A defence) and was told he would have 48 hours to provide input into any such action, before being told he was to be made redundant only six hours later.
The fact the applicant was then, within a matter of days, able to remediate any potential redundancy by successfully applying for the National Partnership Manager position does not obviate the effect upon him of being told of the potential redundancy.
Indeed, the process of being recruited to the new role arguably only added to the anguish which he felt, noting his evidence of feeling guilty about obtaining the job in circumstances where his colleague was made redundant on very short notice.
In any event, having found the conduct relied on by the applicant was not reasonable, the defence under s 11A must fail.

Capacity for employment

At the hearing, Mr Necovski appropriately conceded the applicant was totally incapacitated for employment until 19 December 2024 when he obtained post-injury employment with TLC Automotive Parts, a position where he commenced work two days per week on a casual basis earning an hourly rate of $30.12 per hour.
The applicant has provided payslips from his post-injury employment which demonstrate capacity to work up to 22 hours per week, being the last payslip in evidence.
Mr Necovski submitted that, were there a finding in favour of the applicant, his residual capacity for employment from 19 December 2024 to date and continuing would be 22 hours per week at the rate of $30.12, or approximately $660 per week.
For his part, Mr Hickey submitted that such capacity would be 16 to 20 hours per week.
There was little discrepancy between the parties as to the applicant’s residual capacity. On balance, I am persuaded that Mr Necovski’s submission is correct. Doing the best I can, I therefore find the applicant has residual capacity to earn at the rate of $660 per week.
There was no issue the applicant’s PIAWE exceeded the statutory maximum. As his residual capacity exceeds 15 hours per week, the provisions of s 37(2) of the 1987 Act are enlivened.
The maximum statutory amount for the relevant period of partial incapacity is $2,523 per week, 95% of which is $2,396.85. Allowing for a deductible of $660 representing the applicant’s capacity to earn, the amount payable to him pursuant to s 37(2) is therefore $1,736.85 per week.
The respondent will therefore be ordered to pay the applicant weekly compensation pursuant to s 37 in accordance with the figures set out on page 1 of the Certificate of Determination.

Claim for medical expenses

As noted, the applicant seeks a general order for the payment of medical and treatment expenses. The success of that claim rises and falls on the liability dispute, which I have found in his favour. Accordingly, there will be an order that the respondent pay the applicant’s reasonably necessary medical and treatment expenses pursuant to s 60 of the 1987 Act.

SUMMARY

For the above reasons, the Commission will make the findings in orders set out on Page 1 of the Certificate of Determination.

[2025] NSWPIC 113

26 March 2025