Wu v State of New South Wales (Southern NSW Pathology Service)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Wu v State of New South Wales (Southern NSW Pathology Service) [2023] NSWPIC 583
APPLICANT:	Xiu Qin (Caroline) Wu
RESPONDENT:	State of New South Wales (Southern NSW Pathology Service)
MEMBER:	Karen Garner
DATE OF DECISION:	3 November 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation pursuant to section 33, medical and related expenses of pursuant to section 60 and lump sum compensation for permanent impairment pursuant to section 66; in relation to alleged psychological injury as a result of bullying and harassment in the course of employment and to which the applicant’s employment was the main contributing factor pursuant to section 4(b)(i); respondent raised a dispute pursuant to section 11A(1) on the ground of “discipline”; Held – applicant sustained a primary psychological injury pursuant to sections 11A(3) and 4(b)(i), with deemed date of injury of 4 March 2014, arising out of and in the course of her employment and, further, the applicant’s employment was the main contributing factor to contracting the disease; defence pursuant to section 11A(1) is not established; matter remitted to the President for referral to a Medical assessor for assessment of whole person impairment; respondent to pay the claimed medical and related expenses pursuant to section 60, upon production of accounts, receipts or Medicare Notice of Charge; after the issue of a Medical Assessment Certificate, the matter is to be relisted for a further conference to address the issue of the applicant’s entitlement to weekly compensation and quantification of any weekly compensation.
DETERMINATIONS MADE:	T The Commission determines: 1. The applicant sustained a primary psychological injury pursuant to ss 11A(3) and 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), with deemed date of injury of 4 March 2014, arising out of and in the course of her employment and, further, the applicant’s employment was the main contributing factor to contracting the disease. 2. A defence pursuant to s 11A(1) of the 1987 Act is not established. The Commission orders: 1. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows: Date of injury: 4 March 2014 (deemed) Body parts: Psychological Method: Whole person impairment 2. The materials to be referred to the Medical Assessor are to include: (a) Application to Resolve a Dispute (ARD) and attachments; (b) Amended ARD and attachments; (c) Reply to ARD and attachments; (d) Applicant’s Wages Schedule dated 2 December 2022; (e) respondent’s Application to Admit Late Documents (AALD) dated 7 February 2023 and attachments; (f) respondent’s Schedule of Documents listing those documents from the respondent’s AALD dated 7 February 2020 which are relied on by the respondent; (g) applicant’s AALD dated 14 August 2023 and attachments; (h) respondent’s AALD dated 15 September 2023 and attachments, including Respondent’s Wages Schedule dated 14 September 2023, and (i) applicant’s AALD dated 5 October 2023 and attachments. 3. The respondent to pay the claimed medical and related expenses pursuant to s 60 of the 1987 Act, upon production of accounts, receipts or Medicare Notice of Charge. 4. After the issue of a Medical Assessment Certificate, the matter is to be relisted for a further conference to address the issue of the applicant’s entitlement to weekly compensation and quantification of any weekly compensation.

STATEMENT OF REASONS

BACKGROUND

Xiu Qin (Caroline) Wu (the applicant) claims workers compensation benefits pursuant to
ss 33, 60 and 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of psychological injury sustained during the course of her employment with the State of NSW (Southern NSW Pathology Services) (the respondent), with a deemed date of injury of
4 March 2014.
This matter has an extensive history.
The applicant initially made a claim for workers compensation in respect of the injury on or about 13 March 2014.[1] The respondent’s insurer, QBE Workers Compensation (NSW) Limited (the insurer), declined the claim by notice dated 23 July 2014[2] issued pursuant to
[1] ARD, page 373.
[2] Amended ARD, page 136.
s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The insurer disputed that the applicant’s employment was a substantial contributing factor to the injury as required by s 9A of the 1987 Act. The insurer relied on a defence in accordance with s 11A of the 1987 Act on the basis that the alleged psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal or provision of employment benefits. The insurer also disputed that the applicant was totally or partially incapacitated as a result of injury as required by s 33 of the 1987 Act and that medical treatment was reasonably necessary as required by s 60 of the 1987 Act.
The applicant sought reimbursement of medical expenses pursuant to s 60 of the 1987 Act by letter dated 25 July 2016.[3] By letter dated 8 September 2016,[4] the applicant also made a claim for permanent impairment lump sum compensation (permanent impairment compensation) pursuant to s 66 of the 1987 Act in the amount of $116,050, calculated on the basis of 48% total whole person impairment (WPI).
[3] Amended ARD, page 141.
[4] Amended ARD, page 142.
The insurer declined the claim for permanent impairment compensation by notice dated
[5] Amended ARD, page 143.
8 November 2016,[5] issued pursuant to s 74 of the 1998 Act. The insurer disputed that the applicant suffered an injury arising out of or in the course of her employment with the applicant pursuant to ss 4 and 11A(3) of the 1987 Act and that the employment is a substantial contributing factor to any injury, or a main contributing factor to any disease injury pursuant to ss 4 and 9A of the 1987 Act. The insurer raised a defence pursuant to s 11A(1) of the 1987 Act on the basis that any injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal or provision of employment benefits. The insurer also disputed that the applicant had WPI which gave rise to an entitlement to claim permanent impairment compensation pursuant to ss 65A and 66 of the 1987 Act.
The insurer issued a further notice dated 2 March 2017[6] pursuant to s 74 of the 1998 Act. The insurer maintained its decision on the same grounds of dispute. The insurer also disputed that the applicant’s degree of WPI is permanent and/or fully ascertainable pursuant to s 322 of the 1998 Act. The insurer stated that the applicant had failed to cooperate as required by s 71 of the 1998 Act, failed to provide particulars as required by s 64 of the 1998 Act and failed to submit to an examination with Dr Roberts as required by s 119 of the 1998 Act. The applicant sought a review of the insurer’s decision.
[6] Amended ARD, page 148.
By letter dated 22 April 2020,[7] the applicant also claimed weekly workers compensation benefits pursuant to s 33 of the 1987 Act, in the amount of $500 per week gross from
[7] Amended ARD, page 154; also see letter to insurer dated 30 April 2020, page 155.
[8] Amended ARD, page 156; also see letter to insurer dated 12 May 2020, page 157.
March 2014 to date, and also medical expenses pursuant to s 60 of the 1987 Act. By letter dated 12 May 2020,[8] the applicant claimed payment of medical expenses pursuant to s 60 of the 1987 Act in respect of an invoice of Dr Protulipac in the sum of $18,010.50.
By letter dated 9 July 2020,[9] issued pursuant to s 287A of the 1998 Act, the insurer maintained its decision dated 2 March 2017.
[9] Amended ARD, page 158.
By letter dated 11 September 2020,[10] the applicant claimed weekly benefits pursuant to s 33 of the 1987 Act in the amount of $695.78 per week gross ($1,286.29 - $590.42) from
March 2014 to November 2015 and the amount of $1,286.29 per week gross from
[10] Amended ARD, page 165; also see letter to insurer dated 11 September 2020, page 167.
November 2015 to date (on the basis that the applicant ceased to work for the respondent in March 2014). The applicant also claimed various medical expenses pursuant to s 60 of the 1987 Act in the amount of $22,652.60.
By letter dated 28 September 2020,[11] issued pursuant to s 78 of the 1998 Act, the insurer declined the claim. The insurer disputed that the applicant sustained a personal, psychological, injury arising out of the course of employment as required by ss 4 and 11A(3) of the 1987 Act and that the employment was the substantial or main contributing factor to the alleged injury as required by ss 4(b)(i), 4(b)(ii) and 9A of the 1987 Act. In the alternative, the insurer raised a defence pursuant to s 11A(1) of the 1987 Act on the grounds that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline. The insurer also disputed that: the injury resulted in partial or total incapacity as required by s 33 of the 1987 Act; claimed medical expenses were reasonably necessary as required by ss 59 and 60 of the 1987 Act; the applicant was entitled to permanent impairment compensation pursuant to ss 65A and 66 of the 1987 Act. The insurer stated that the applicant failed to co-operate as required by s 71 of the 1988 Act, failed to provide particulars as required by s 64 of the 1998 Act and failed to submit to reasonable requests for medical examinations as required by s 119 of the 1998 Act.
[11] Amended ARD, page 169.
On 15 July 2022, Member John Wynyard dismissed separate proceedings commenced by the applicant in the Personal Injury Commission (Commission) on the basis that the applicant failed to prosecute the proceedings with due despatch.[12]
[12] Amended ARD, page 180.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

On 14 October 2022, the applicant initiated these proceedings in the Commission by way of an Application to Resolve a Dispute (ARD). On 4 November 2022, the respondent responded with a Reply to ARD.
At a conference on 14 November 2022, the applicant sought leave to amend the ARD so that the date of injury is a deemed date of injury being 4 March 2014. The respondent confirmed that it relied on the ground of “discipline” in its defence pursuant to s 11A(1) of the 1987 Act.
On 15 November 2022, directions were issued amending the ARD to change the date of injury to “4 March 2014 (deemed)” and requiring the applicant to lodge an Amended ARD.
On 13 December 2022, the applicant lodged an Amended ARD in accordance with directions issued by the Commission on 15 November 2022.
At a conciliation/arbitration hearing, conducted by MS Teams on 13 February 2023, Mr Frank Curran, counsel, appeared on behalf of the applicant, instructed by Mr David Hansen of Carters Law Firm. Mr Tom Grimes, counsel, appeared on behalf of the respondent, instructed by Ms Tarana Singh of HWL Ebsworth Lawyers.
At the hearing on 13 February 2023, the respondent’s Application to Admit Late Documents (AALD) dated 7 February 2023 was refused. Directions were issued for the filing of certain evidence and written submissions.
The respondent appealed the decision to refuse the respondent’s AALD dated
7 February 2023.
On 15 June 2023, his Honour Phillips J, President, allowed the appeal and granted the respondent’s AALD dated 7 February 2023 on specified terms. The matter was remitted back to me for further consideration.
Following a conference conducted by MS Teams on 26 June 2023, I issued directions for filing and service of further evidence and written submissions.
Following receipt and consideration of the various evidence and written submissions, the matter was determined ‘on the papers’.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

ISSUES FOR DETERMINATION

The following issues remain in dispute:
(a) whether the applicant sustained a primary psychological injury pursuant to ss 11A(3) and 4(b)(i) of the 1987 Act, with deemed date of injury of 4 March 2014;
(b) whether a defence pursuant to s 11A(1) of the 1987 Act is established;
(c) whether the applicant is entitled to permanent impairment compensation pursuant to s 66 of the 1987 Act;
(d) whether the applicant is entitled to weekly compensation pursuant to s 33 of the 1987 Act, and
(e) whether the applicant is entitled to claimed medical and related expenses pursuant to s 60 of the 1987 Act.

EVIDENCE

Documentary evidence

Extensive documentary evidence was in evidence before the Commission and considered in making this determination:
(a)    ARD and attachments;
(b)    Amended ARD and attachments;
(c)    Reply to ARD and attachments;
(d)    applicant’s Wages Schedule dated 2 December 2022;
(e)    respondent’s AALD dated 7 February 2023 and attachments;
(f)    respondent’s Schedule of Documents (SOD) listing those documents from the respondent’s AALD dated 7 February 2020 which are relied on by the respondent;
(g)    applicant’s AALD dated 14 August 2023 and attachments;
(h)    respondent’s AALD dated 15 September 2023 and attachments, including Respondent’s Wages Schedule dated 14 September 2023, and
(i)    applicant’s AALD dated 5 October 2023 and attachments.

Oral evidence

No application for cross-examination was made and no oral evidence was given.

Lay evidence

Applicant

Applicant’s statements

The applicant’s evidence is extensive and includes signed statements dated
[13] Amended ARD, page 1.
[14] Amended ARD, page 104.
[15] Amended ARD, page 3.
30 August 2021,[13] 13 April 2014[14] and 29 September 2022.[15]
The applicant stated that on 7 June 2010, she commenced employment with the respondent in the position of blood collector. The applicant stated that she has suffered serious and ongoing psychological injury as a consequence of being subjected to abuse, humiliation, discrimination, bullying, harassment, victimisation, intimidation, aggression, unfair treatment, injustice and mental harm inflicted on her during the course of her employment with the respondent over the period from 18 January 2011 to 4 March 2014.
The applicant stated that the bullying and harassment was mostly perpetrated by her manager, David Matthews and included:
(a)    Mr Matthews conducted meetings in an aggressive and intimating tone;
(b)    Mr Matthews made fun of the applicant’s accent and pretended he could not understand English;
(c)    Mr Matthews withdrew the applicant’s annual leave without reason;
(d)    Mr Matthews refused the applicant’s application for leave for five weeks from
18 June 2011 to 19 July 2011 even though the purpose of taking leave was for the applicant to visit her sick father-in-law and despite the applicant having given eight months’ notice;
(e)    Mr Matthews imposed a flexible rotating roster system upon the applicant, although all other employees had a fixed roster. The applicant required a fixed roster like the other employees due to her family commitments;
(f)    Mr Matthews pressured the applicant to resign;
(g)    Mr Matthews treated the applicant unfairly regarding compulsory fire training which the applicant was unable to attend due to her daughter’s ill health;
(h)    Mr Matthews did not roster the applicant for 19 hours per week (as her contract provided) but only gave her 16 hours per week. As far as the applicant is aware, she was the only employee not rostered for the hours stated in their contract;
(i)    Mr Matthews yelled at the applicant for not answering her pager when her pager was faulty;
(j)    Mr Matthews placed the applicant under a monitor;
(k)    Mr Matthews scheduled the applicant for shifts that she could not work;
(l)    Mr Matthews withheld access to the store room and refused to give her a key even though other members were given keys. The applicant was unable to access materials and equipment needed for her work, making it difficult for her to perform her duties, and
(m)     Mr Matthews made false allegations against the applicant, such as accusing her of leaving the store room door ajar.
The applicant stated that she was also bullied, harassed and treated unfairly by
Mr Matthews’ superiors, namely: Anne-Maree McDougall (the respondent’s Central Network Manager), Julian Kackenberg (Human Resources Manager), Dr Trevor Cobain (Human Resources Manager), Deiter Schultjohann (Patient and Client Service Manager) and Jane Whitwham (Mr Matthews’ manager). The applicant stated that such conduct included:
(a)    the applicant’s complaints about Mr Matthews were ignored or dismissed without a proper investigation;
(b)    no action was taken to stop Mr Matthews’ ongoing bullying and harassment of the applicant;
(c)    the applicant was forced to attend meetings where Mr Matthews was present;
(d)    the applicant was not permitted to have a support present at meetings;
(e)    the opinions of the applicant’s general practitioner and psychologist were ignored;
(f)    meetings were conducted in a manner which was intimidating to the applicant, and
(g)    the applicant was not afforded natural justice or procedural fairness.
The applicant stated that as a result of her psychological injury, she consulted her general practitioner, Dr Ye, who referred her to a psychologist, Dr Protulipac, who the applicant first attended on 4 March 2014. The applicant was also referred to a psychiatrist, Dr Stevens, who the applicant first attended on 23 March 2015. The applicant also consulted a psychologist, Mei Tze Ling, and a psychologist, Christine Cooper.
The applicant stated that she had sick leave (unpaid with medical certificates) from December 2015 and that her employment with the respondent was terminated on
18 November 2016 as she was unable to continue to work with the respondent. The applicant stated that she remains unable to engage in any form of work as a result of the psychological injury that she sustained.
The applicant stated that she claims workers compensation in relation to the psychological injury that she sustained during her employment with the respondent, being loss of income, medical expenses and a lump sum payment for permanent impairment.

Applicant’s record of interview

The respondent’s evidence includes a document which purports to be a record of interview/statement of the applicant taken on behalf of the insurer on 19 November 2013, however it is not signed by the applicant.[16] It appears that the document was prepared as part of a factual investigation report and the document header states a date of 17 April 2014. The document is typed and has handwritten notes in various places.
[16] Reply, page 143.
The record of interview included statements by the applicant to the effect that:
(a)    whilst she had been employed by the respondent, she retained secondary employment with Laverty Pathology;
(b)    the applicant alleged that she sustained a psychological injury in 2013, which she attributed to workplace issues in relation to her employment with the respondent;
(c)    on 18 January 2011, Mr Matthews met with the applicant in his office and advised her that her request for leave which she had submitted in October 2010 (and given verbal notification of at her interview for the position) was not accepted “because someone five minutes before you gave me their application form”. At the applicant’s urging, Mr Matthews agreed to see if it was possible to grant her leave application;
(d)    on 7 February 2011, Mr Matthews met with the applicant in his office and said that he required to roster her on any day of the week required on a seven day flexible roster basis, rather than on set days which she had worked since the beginning of her employment. Mr Matthews also advised the applicant that her request for annual leave was refused. During the meeting, Mr Matthews constantly made remarks to the applicant that he could not understand her English, asked her to repeat herself and said “What are you talking about”.
Mr Matthews misinterpreted the applicant smiling as a gesture of respect and said “Stop laughing. You are very rude”. Mr Matthews then said “Are you still going to take your leave?” and when the applicant responded in the affirmative, he said “I see a lot of people like you but you will never win with me” and he told the applicant to speak with other managers regarding any issues with her employment. Mr Matthews then picked up a pen from his desk and threw the pen towards the applicant across the desk and said “Go” and the applicant left his office;
(e)    the applicant felt very intimidated and upset by Mr Matthews’ behaviour and she wrote a letter of complaint on 18 February 2011;
(f)    on 22 March 2011, the applicant attended an interview with Ms McDougall in relation to the applicant’s complaint. Ms McDougall still refused to grant the applicant the annual leave in June 2011 she talked to the applicant about roster changes. The applicant’s complaint regarding Mr Matthews’ behaviour was going to be treated as a separate issue;
(g)    on 23 March 2011, Ms McDougal gave the applicant a copy of the minutes of the meeting on 22 March 2011. The applicant responded in writing on
30 March 2011;
(h)    the applicant was not happy with the outcome and she took the issues to the Human Resources Manager, David Pryde;
(i)    on 5 April 2011, the applicant attended another meeting with Mr Pryde and
Ms McDougall. They refused the applicant’s annual leave in June 2011 and confirmed they would change the applicant’s roster as requested by
Mr Matthews. The applicant threatened to take the annual leave in any event;
(j)    on 20 May 2011, the applicant wrote a letter to Mr Pryde regarding her annual leave;
(k)    soon afterwards, the applicant was advised by Ms McDougall that her annual leave was granted;
(l)    the applicant then received an email from Ms McDougall which advised that the investigation into her complaint of intimidation had been finalised and it had not been substantiated;
(m)     from 18 June 2011 to 23 July 2011, the applicant took her annual leave;
(n)    on 26 July 2011, the applicant wrote a response to Ms McDougall’s letter concerning the findings of the applicant’s complaint about Mr Matthews;
(o)    a second work-related issue occurred in July 2012, after the applicant’s store room key and hospital access card was stolen from her trolley at work. On three occasions, the applicant requested Mr Matthews for a replacement storeroom key but he failed to provide her with one. As the applicant did not have a key, on a couple of occasions, she was required to call hospital security to gain access to the store room to get work equipment;
(p)    on 23 January 2013, the applicant received a letter from Mr Matthews which stated that she was not to receive a replacement key and to cease calling security;
(q)    on 12 March 2013, the applicant was unable to attend a fire training lecture at work because she was required to care for her sick child and take her to a doctor;
(r)    on 19 March 2013, the applicant received a letter from Mr Matthews (dated
13 March 2013) regarding the applicant’s non-attendance at the fire training which requested that the applicant provide a medical certificate;
(s)    the applicant subsequently met with Mr Matthews about his request for a medical certificate. The applicant asked why he did not advise her of that requirement earlier because it had been a week since her child was sick. The applicant offered for her husband to prepare a statement regarding her absence and that she would attend another fire training lecture. During the meeting, Mr Matthews constantly said “What are you talking about. I don’t understand you”;
(t)    on 24 March 2013, the applicant wrote a letter of complaint to Human Resources Manager, Julian Hackenberg regarding Mr Matthews’ conduct towards her;
(u)    on or about 29 April 2013, the applicant received a written response from
Mr Hackenberg which stated that her complaint had been investigated and was found not to be substantiated;
(v)    on 7 May 2013, the applicant received a letter from Mr Matthews requesting her to attend an interview regarding her roster and sick leave;
(w)   on 11 May 2013, the applicant responded in writing to Mr Matthews, informing him that she could not attend the proposed meeting on 13 May 2013 and she suggested another day;
(x)    at about 8am on 13 May 2013, Mr Matthews telephoned the applicant and told her that she had to attend the meeting that day. Mr Matthews did not respond to her questions of whether he had received her letter of 11 May 2013. The applicant advised that he should read her letter and that she was unable to attend the meeting on that day because she could not find a support person. The applicant said that she could attend a meeting on another day;
(y)    later, on 13 May 2013, at Mr Matthews request, the applicant telephoned
Mr Hackenberg. The applicant advised that she could not attend the meeting that day because she did not have a support person. Mr Hackenberg repeatedly told the applicant that she had to attend the meeting at 11am that day and that he would find her a support person. Mr Hackenberg was very rude to the applicant, spoke loudly and his attitude was not negotiable in relation to the applicant’s attendance at the meeting;
(z)    about 10 minutes later, Mr Hackenberg telephoned the applicant and told her that the meeting would now be held at 9am that morning and that she was required to attend. The applicant told him that she could not attend without a support person and she became upset because she felt pressured. The applicant offered another date of 20 May 2013 for the meeting;
(aa)    soon afterwards, the applicant received a second phone call from Mr Matthews who reiterated that she had to attend the meeting at 9am. The applicant again refused to attend because she did not have a support person. Mr Matthews repeatedly said “I don’t understand what you are talking about”;
(bb)    later on 13 May 2013, the applicant attended her physician, Dr Yee, because she felt sick and upset and she was referred to psychologist, Mei Tze Ling;
(cc)     on 14 May 2013, Mr Hackenberg telephoned the applicant and requested that she meet with him on 21 May 2013 for a personal talk. The applicant agreed;
(dd)    on 17 May 2013, the applicant had her first consultation with Ms Ling who provided a letter stating the applicant’s symptoms;
(ee)    on 18 May 2013, the applicant wrote a letter to Mr Matthews seeking to stop him intimidating, bullying and harassing her regarding the proposed meeting;
(ff)    on 21 May 2013, the applicant met with Mr Hackenberg without a support person as that was an informal private conversation. The applicant told Mr Hackenberg about her not being given a replacement key and said that she needed a key to get equipment. Mr Hackenberg advised that he could not assist her in relation to the proposed changes to her roster and he asked the applicant to meet with
Mr Matthews about that. The applicant told Mr Hackenberg that she refused to meet with Mr Matthews as he had been bullying her and the matter had to be investigated. Mr Hackenberg asked the applicant to provide any medical history to him, which she refused. The applicant requested a copy of Mr Hackenberg’s meeting notes but was never provided them;
(gg)    on 27 May 2013, the applicant attended a meeting with Mr Hackenberg and
Ms McDougall. The applicant did not have a support person. At the outset,
Ms McDougall stated that the meeting was to discuss changing the applicant’s roster. The applicant asked about her replacement key and investigation of her complaint against Mr Matthews but did not receive a response. Ms McDougall insisted that Mr Matthews also attend the meeting and the applicant said that
Mr Matthews had been bullying her. Ms McDougall pressured the applicant for
Mr Matthews to attend the meeting and said that the meeting would not go ahead if he was not in attendance. The applicant felt very stressed and was crying. The applicant then handed Mr Hackenberg the letter she had received from her psychologist and said “This is work place bullying”. Mr Hackenberg requested a five minute break but Ms McDougall refused and sought to continue the meeting. The applicant informed them that she did not feel well, was feeling dizzy and her hands were going numb. The conversation went for about 10 to 15 minutes and then Ms McDougall said to the applicant “We are finished, this is my office, get out”. The applicant said she could not stand as she felt numb and dizzy. Both
Mr Hackenberg and Ms McDougall left the applicant in the office by herself;
(hh)    on the evening of 27 May 2013, Mr Hackenberg emailed the applicant, requesting a meeting with her to discuss the correspondence from Ms Ling and the matters the applicant had raised;
(ii)    on 28 May 2013, the applicant contacted Dr Trevor Cobain and made a complaint that Mr Hackenberg had treated her badly, not investigated her complaint and at every interview he only wanted to discuss the changes to the applicant’s roster. Dr Cobain requested to meet with the applicant on 4 June 2013;
(jj)    on 30 May 2013, the applicant emailed Ms McDougall and demanded an apology for what happened at the meeting on 27 May 2013;
(kk)     also on 30 May 2013, the applicant emailed Mr Hackenberg in response to his email of 27 May 2013, and informed him that she was not able to attend a meeting on 4 June 2013;
(ll)    on 17 June 2013, the applicant attended a meeting with Dr Cobain and found that Mr Hackenberg was also in attendance. Mr Hackenberg left the meeting after the applicant objected to his attendance because her complaint was about him.
Dr Cobain initially sought to discuss the change to the applicant’s roster. The applicant said that nobody had spoken with her about her replacement key, her complaint of intimidation by Mr Matthews and her report of misconduct by
Mr Hackenberg. Dr Cobain refused to provide the applicant with a replacement key and insisted that she obtain access to the store room with other staff. The applicant then said to him “Trevor if you don’t have a key can you get into the office with the door locked?” and when he replied “yes”, she said “Can you show me. You and me can go out of this room and I lock the door and you open it for me. If you can open the door without the key then I am not going to ask anymore”. Dr Cobain did not answer the question, but he called Mr Hackenberg into the meeting room. The applicant continued “You can open the locked door without the key” and Dr Cobain said “I can’t”. Dr Cobain then took a bunch of keys from his pocket and he held them upwards and in front of him over the applicant’s head, which caused the applicant to feel intimidated. As he held the keys up, Dr Cobain said “This key for my HR document, this key for my other lock”, which the applicant found to be very condescending and made her feel terrible. The applicant telephoned her husband whilst she was still in the meeting room because she felt helpless, hopeless and she was shaking. The applicant then calmed and Dr Cobain continued to talk about changes to her roster, which she did not agree to. The applicant asked why her complaints had not been investigated but Dr Cobain did not reply. The meeting took one hour and there was no positive outcome;
(mm) on 4 July 2013, the applicant received an email from Dr Cobain in relation to her allegation against Mr Matthews and her health concerns. The applicant was given a letter to hand to her treating doctor;
(nn)    on 16 July 2013, the applicant wrote a response to Dr Cobain’s email of
4 July 2013;
(oo)    on or about 24 July 2013, Dr Cobain wrote to the applicant and again requested that she provide advise from her treating physician;
(pp)    correspondence was exchanged between the applicant and Dr Cobain on
29 July 2013, 31 July 2013 and 9 August 2013;
(qq)    correspondence was exchanged between the applicant and Mr Hackenberg on 13 August 2013, 18 August 2013 and 23 August 2013. Mr Hackenberg requested that the applicant confirm a meeting with him on 26 August 2013. The applicant responded that she was not prepared to attend the meeting for various reasons which she articulated;
(rr)   on 30 August 2013, Dr Cobain wrote to the applicant and he expressed concern about her mental health and he provided a letter which he asked her to give to her treating physician, Dr Yee, and he directed that the applicant cease duty immediately pending a response from Dr Yee;
(ss)     on 9 September 2013, the applicant sent Dr Cobain an email and attached report from psychologist, Ms Ling and Dr Yee;
(tt)    the applicant worked on 27 August 2013 and then had days off work, a period of annual leave and then sick leave. In that period, the applicant sought psychological treatment, and
(uu)    on 17 and 18 October 2013, correspondence was exchanged between the applicant and Mr Hackenberg regarding the applicant’s return to work. The applicant requested that she returned to normal duties on 19 October 2013 because Ms Ling and Dr Ye stated that there were no medical conditions preventing her from undertaking her duties. Mr Hackenberg wrote to the applicant and informed her that if she did not return to work the respondent may take disciplinary action against her.

Deiter Schultejohann, Patient Client Services Manager

Mr Schultejohann gave evidence by way of a statement dated 11 April 2014.[17]
[17] Reply, pages 91, 117.
Mr Schultejohann stated that the applicant was absent on sick leave which related to a previous workers compensation claim and her complaints about the conduct of Mr Matthews towards her. The applicant had provided a return to work medical certificate which included a reference to the applicant not being managed by Mr Matthews. Mr Matthews and the return-to-work coordinator required that the applicant return to work on the basis that a medical certificate allowed her to return to full duties including supervision by Mr Matthews and the applicant provided such a certificate. Mr Schultejohann stated that on 3 December 2013, he and Ms Whitwham met with the applicant and advised that her return to work would be supervised by Mr Matthews as her line manager.
Mr Schultejohann stated that, shortly after the applicant returned to work on about
7 December 2013, Mr Hackenberg asked him to investigate allegations that had been made against the applicant and advised him that the investigation had been delayed by the applicant’s absence on sick leave.
Mr Schultejohann stated that he provided the allegations to the applicant in writing and requested she meet with him and may bring a support person. The letter did not state a meeting date.
Mr Schultejohann stated that, inadvertently and unbeknown to him at the time, he failed to advise the applicant of a meeting on 16 December 2013 which he had scheduled her to attend with him and Ms Whitwham to discuss the allegations. When it became apparent to him that the applicant would not be attending the meeting at the scheduled time, he and
Ms Whitwham had a discussion in a hallway near the staff room door, when the applicant passed them. Mr Schultejohann denied that they were stalking the applicant and stated that they were unaware of her whereabouts at that time. Mr Schultejohann stated that
Ms Whitwham asked the applicant if she was going to meet with them and the applicant and Ms Whitwham walked to the entrance of Ms Whitwham’s office, before they returned and the applicant then stated to the effect of “No, no, I don’t have time for this now”. Mr Schultejohann denied that he or Ms Whitwham attempted to coerce the applicant into attending the meeting or attending without a support person.
Mr Schultejohann stated that he considered the applicant’s following correspondence which stated that she declined to attend an interview until he responded to various issues which she raised. Mr Schultejohann stated that he responded to the effect that if the applicant did not attend a meeting scheduled for 7 January 2014, the respondent would be required to determine the findings on the basis of the information it had, however the applicant failed to confirm her attendance at that meeting and the meeting did not proceed.
Mr Schultejohann stated that the applicant sent various emails stating that she would not attend an interview unless he answered all her questions which he felt were unrelated to the investigation. Mr Schultejohann stated that information which the applicant provided in her various emails in some cases did not correspond with evidence of other witnesses and he needed clarification.
Mr Schultejohann stated that he requested that the applicant attend another meeting on
14 January 2014 however she again failed to confirm her attendance at that meeting.
Mr Schultejohann stated that, based on his review of the evidence, he concluded that the allegations against the applicant were sustained and he advised Dr Lindeman who took disciplinary action.

Julian Hackenberg, Human Resources Manager

Mr Hackenberg gave evidence by way of a statement dated 9 April 2014.[18]
[18] Reply, page 122.
Mr Hackenberg stated that upon the applicant’s return to work in December 2013 following a previous workers compensation claim, Mr Schultejohann investigated allegations against the applicant which occurred prior to her commencing on leave but were not investigated sooner because of her absence on leave.
Mr Hackenberg stated that initially he and Mr Matthews were investigating the allegations against the applicant.
Mr Hackenberg stated that it is reasonable that the applicant responded in writing on
16 December 2014, however it is part of the respondent’s procedure, and a reasonable and lawful direction, that a fact finding meeting occur as well, to be able to provide persons with as much information as possible in relation to allegations and to follow up with additional enquiries based on their responses.
Mr Hackenberg stated that, in a letter dated in or about 27 February 2014, Mr Schultejohann advised the applicant that the allegations were sustained and that there were four proposed methods of disciplinary action, one of which included a first and final warning. He stated that the letter invited the applicant to make submissions in relation to the proposed disciplinary action, which the applicant had not done.
Mr Hackenberg stated that on 3 March 2014, he became aware of a complaint that the applicant was not contactable on the wards for an extended period of time on 1 March 2014. He stated that Dr Cobain and Mr Hackenberg investigated the complaint after the applicant submitted a complaint to Dr Lindeman dated 9 March 2014. Ms Wu asserted that the pager was faulty however Mr Matthews was unaware of any issues with the pager.
Mr Hackenberg stated that their issue was not so much that the applicant didn’t answer her pager, rather it was that she refused to meet with Mr Matthews to discuss the issue.
Mr Hackenberg stated that it was only a couple of months prior, that the applicant’s doctor had ultimately provided advice stating that there were no health and safety issues which prevented her undertaking her duties which included engaging with Mr Matthews.
Mr Hackenberg stated that the respondent insisted, as part of the applicant’s return to work, that her doctor provide advice that she was fit and able to engage with Mr Matthews in a reasonable manner.
Mr Hackenberg stated that he understood that the applicant requested to respond to
Mr Matthews’ enquiries in writing. He stated that the Code of Conduct states that staff are required to engage in processes that includes, “Comply with all lawful and reasonable directions given by their managers or other members of staff authorised to give them”. He stated that the respondent applied a principle that such complaints should be first addressed in an informal manner rather than taking a blunt, formal approach. Mr Hackenberg stated that he spoke with Mr Matthews who denied the applicant’s allegation that he screamed at her.
Mr Hackenberg stated that Anita Burnie informed him that the applicant attended her office uninvited and requested to speak with her but Ms Burnie declined to talk privately with the applicant and requested that a third party be present as a witness. Mr Hackenberg stated that Ms Burnie shared her office with Paul Cassar, Senior Hospital Scientist, but he did not speak with Mr Cassar.
Mr Hackenberg stated that, due to the applicant’s non-compliance of a reasonable direction to meet with Mr Matthews and the respondent’s concerns about being unable to contact the applicant whilst on duty, on behalf of Dr Cobain, he prepared a letter to the applicant dated 13 March 2013 which requested that the applicant respond to the two allegations involving her not answering her pager and refusing to meet with Mr Matthews.

Sharon Ibbotson, enrolled nurse

Ms Ibbotson gave evidence by way of a statement dated 10 April 2014.[19]
[19] Reply, page 126.
Ms Ibbotson stated that the applicant reported to Ms Ibbotson on at least two occasions that her pager was not working. Most recently, the applicant reported that her pager was not working and gave it to Ms Ibbotson. Ms Ibbotson said that she fixed the pager by replacing the battery. On another occasion, Ms Ibbotson found that the pager was on silent.
Ms Ibbotson stated that on occasions the applicant left her pager on her trolley instead of wearing her pager as required. Ms Ibbotson stated that there were rooms on each ward where trolleys were not permitted. Ms Ibbotson was not aware of any other issues with the applicant’s pager.

Kathryn Anne Howie, call centre and reception manager

Ms Howie provided evidence by way of a statement dated 10 April 2014.[20]
[20] Reply, page 128.
Ms Howie stated that on an unknown date she approached the applicant who was using a phone in the reception office which made external calls. Ms Howie stated that she wasn’t rude to the applicant or confrontational and simply stated “Caroline, do you mind using another phone as we need this phone for the office?”. Ms Howie stated that the applicant said something about trying to call Mr Matthews, however Ms Howie replied that
Mr Matthews was in his office which was across the hall. Ms Howie stated that the applicant left but later returned and asked for her full name. Ms Howie refutes that she was confrontational.
Ms Howie stated that on another occasion, she was speaking with Mr Schultejohann and
Ms Whitwham when the applicant walked past and Ms Whitwham asked to speak with the applicant. Ms Howie denied that Mr Schultejohann and Ms Whitwham ever discussed with her any issues regarding the applicant and that she was ever asked to treat the applicant unfairly.

David Matthews, unit manager

Mr Matthews gave evidence by way of a statement dated 10 April 2014.[21]
[21] Reply, page 130.
Mr Matthews stated that prior to the applicant returning to work from sick leave involving a separate workers compensation claim, he assisted Mr Hackenberg to investigate hospital staff complaints against the applicant.
Mr Matthews stated that the applicant had been difficult to contact by pager during her shift on a number of occasions. He stated that the applicant had never reported any problem with her pager to him and he was unaware of difficulties with other pagers or her pager.
Mr Matthews stated that Dr Cobain requested him to investigate a complaint made on
3 March 2014 that the applicant was not contactable by her pager during her shift.
Mr Matthews stated that he sent a message through a staff member asking the applicant to come to his office after she finished her shift on 4 March 2014. The staff member returned a message from the applicant to Mr Matthews that if he wanted to speak to her, he should page her, which he did.
Mr Matthews stated that, upon receiving the page, the applicant telephoned Mr Matthews.
Mr Matthews said that he needed to discuss an issue with a missing specimen from a patient that she had attended and also a complaint that the applicant had not been contactable on her pager. Mr Matthews stated that applicant replied “Put it in writing”, he asked “Are you refusing to meet with me to discuss this?’ and the applicant responded “I am not refusing. Put in writing. You are rude to me... I scared”. The applicant then terminated the call.
Mr Matthews denied that he screamed at the applicant.
Mr Matthews denied that he abused the applicant during meetings in relation to annual leave and rostering in 2013, which was the reason why the applicant alleged she declined to meet with him on 4 March 2013. Further, Mr Matthews denied the applicant’s complaint that he threw a pen on the table and said “I don’t understand what you are talking about”.
Mr Matthews stated that the applicant’s contract of employment provided that she worked a seven day flexible roster, however prior to the applicant commencing employment, she advised that she would only work specific four days per week for two to three months due to a sick relative. Mr Matthews said that the applicant’s request was accommodated for a fixed period by other staff agreeing to change their rosters, however upon expiry of the fixed period the respondent required that the applicant work a seven day flexible roster as part of her contract. Mr Matthews stated that the applicant lodged a complaint about his request that she work a seven day flexible roster.
Mr Matthews disputed the applicant’s failure to observe a request for blood which was allegedly printed on the back side of a page on the basis that it is a requirement that all paperwork is checked on the back and front.

Anita Burnie, central specimen reception (CSR) manager

Ms Burnie gave evidence by way of a statement dated 10 April 2014.[22]
[22] Reply, pages 109, 135.
Ms Burnie stated that on 3 March 2014, she received an email from Sherin, a technical adviser, which made a complaint that the applicant had not been contactable by pager for over three hours during her shift and that the applicant had also not been contactable for a period of time on previous occasions. Ms Burnie said that she forwarded the complaint to
Mr Matthews and discussed it with him, and Mr Matthews expressed concern that he had been directed to approach the applicant about the incident and that she was difficult to approach.
Ms Burnie stated that subsequently, on 4 March 2014, the applicant appeared at her office door and asked if she could see Ms Burnie. Ms Burnie stated that after she replied “yes”, the applicant came in and appeared agitated and breathing heavy and asked “I need to ring my husband”. Ms Burnie asked if the applicant would like to do that privately but the applicant responded “No, I need you here” and the applicant asked Ms Burnie to dial the number and stated that she was too upset to do so. Ms Burnie stated that the applicant calmly spoke on the phone to her husband.
Ms Burnie said that because of her past experience with the applicant being rude and observing the applicant to be screaming in a meeting and receiving complaints about the applicant’s conduct toward staff, Ms Burnie was not comfortable being alone with the applicant and she wanted a witness to be present. Ms Burnie said that when Paul Cassar came into the office, she privately mouthed for him to remain there. Ms Burnie denied that she had ever previously discussed with Mr Cassar any of the issues involving the applicant.
Ms Burnie stated that when the applicant finished the phone call, she recommenced heavy breathing. The applicant sat down, appeared to notice that Mr Cassar was in the room and asked if she and Ms Burnie could go somewhere private. Ms Burnie stated that she said that she would be more comfortable if there was a third party present, and the applicant said “you want a third party present?”. When Ms Burnie replied “yes”, the applicant stated that she would rather not have a third party present. Ms Burnie again said that she was not comfortable and, if they were going to have a meeting, she would prefer someone else to be present. Ms Burnie stated that, at that point, she asked “Paul, would you be comfortable sticking around for a few minutes” and he replied “okay”. Ms Burnie stated that she did not specifically introduce Mr Cassar to the applicant but she did mention his name.
Ms Burnie stated that she then said “It is up to you, Caroline” and for about 60 seconds, the applicant just sat and looked toward her and nobody spoke before Ms Burnie motioned whether the applicant wanted to proceed. Ms Burnie said that she was seated at her desk, facing the applicant who was seated across from her and Mr Cassar who stood at the door, behind the applicant but to her side. Ms Burnie stated that the applicant did not have a view of Mr Cassar from where she was seated.
Ms Burnie stated that eventually the applicant began to speak and she said that she wanted to raise an incident with CSR over the weekend. The applicant said that a doctor had given her a form that was printed on both sides and that she had missed the test on the other side. The applicant said it was a printing issue and it happens all the time and she is only human.
Ms Burnie stated that she said she was aware of the incident and her concern was nothing to do with the missed collection, but rather her concern was that the applicant was unable to be contacted during her shift. Ms Burnie stated that the applicant said “But I did not hear the page”; Ms Burnie said “Am I able to ask where the pager was?”; the applicant stated “On my trolley, I don’t take it into the patient room”; Ms Burnie said “As a suggestion, would it be okay for you to carry the pager on you?”; the applicant said “That is a good suggestion. I will take it under advisement”.
Ms Burnie stated that she then said “Then if you are going to have the pager with you at all times, then we won’t have an issue. It will all be sorted”. Ms Burnie stated that the applicant asked Ms Burnie to ring the doctor and tell him that it wasn’t her fault that the blood collection was missed and Ms Burnie replied “I completely understand how the collection was missed. There was no need to contact the doctor as long as we can contact you when it happens” referring to the double-sided form.
Ms Burnie stated that, at that point the applicant seemed to lose her composure a little bit and said, “She (Sherrin) should have rung the wards”; Ms Burnie replied “Caroline, Sherin contacted a number of wards to try and find you”; the applicant said “She should have rung another staff member”; Ms Burnie said “Caroline, she did ring another staff member and they also could not contact you” and reiterated that if the applicant had kept her pager on that they would not have that problem. Ms Burnie stated that, around that time, Mr Cassar calmly spoke and said “Caroline, I feel the issue has been addressed”.
Ms Burnie stated that she said to the applicant that there had been staff complaints regarding her not answering her pager.
Ms Burnie stated that the applicant then said “I am being bullied by David”; Ms Burnie then put her hand up and said “Caroline, I think we need to stop. I don’t think this is the correct place to be discussing this issue”; the applicant then said “Then I am at a disadvantage because I have no one to go to”; Ms Burnie said “There are correct channels to go through for this type of issue and I would not be a part of that correct process”; Ms Burnie did not feel comfortable with the applicant discussing that topic; at that point, Mr Cassar also spoke up and said “I agree. I don’t think this is the correct forum for this to be discussed”; the applicant kept repeating that she was disadvantaged; Ms Burnie then said “I am sorry but I have an appointment” and she retrieved her belongings and left the room to attend an appointment.
Ms Burnie denied that she ever said to the applicant “Why don’t you go straight to the higher ups like you did before”.
Ms Burnie stated that, during the meeting, the applicant did not mention that the pagers were old or did not get reception nor that she took her pager off to go to the toilet.
Ms Burnie said that during the meeting her tone was very calm and measured; the applicant’s tone was initially calm, then became a “tad aggressive” when the applicant started to lose her composure, and then reverted to calm.
Ms Burnie said that she was unaware of any pagers not having reception in the hospital, although she was aware that there had been intermittent problems with contacting staff, which she understood was in relation to staff forgetting pagers or forgetting to turn the pagers on. Ms Burnie stated that the applicant’s name “is mentioned a lot” in relation to not answering pages.
Ms Burnie said that as she and Mr Matthews were both managers they had discussed all general staffing issues and work-related matters, however she denied that Mr Matthews had disclosed to her any confidential information relating to the applicant.

Paul Cassar, senior hospital scientist

Mr Cassar provided evidence by way of a statement dated 10 April 2014.[23]
[23] Reply, page 140.
Mr Cassar stated that when he attended the office that he shared with Ms Burnie, the applicant was there and Ms Burnie privately asked him to stay. Mr Cassar stated that he was never introduced to the applicant and she was never introduced to him.

Mr Cassar said that whilst he was present Ms Burnie and the applicant discussed a blood sample not being collected and inability to contact the applicant by pager. Mr Cassar stated that Ms Burnie and the applicant expressed points and responded on several occasions.
Mr Cassar stated that at one stage, he calmly and quietly stated “Caroline, you have raised your points and Anita has responded”.
Mr Cassar stated that the applicant then stated something about being bullied by
Mr Matthews and Ms Burnie responded to the effect that that was not the proper forum or channel to discuss that issue. Mr Cassar stated that the applicant tried to continue the conversation and did not acknowledge Ms Burnie’s words. Mr Cassar stated that he then agreed with Ms Cassar and stated in a calm and quiet manner “This isn’t the proper forum for this conversation”.
Mr Cassar denied that Ms Burnie stated “Why don’t you go straight to the higher ups like you did before”.
Mr Cassar stated that, during the meeting, Ms Burnie’s tone was calm and quiet and she did not raise her voice. Mr Cassar described the applicant as very agitated.

Margery Ji, senior blood collector

Ms Ji gave evidence by way of a statement dated 27 March 2014.[24] Ms Ji stated that in her position as blood collector employed by the respondent, she had frequently experienced problems with the pager system and messages not being received due to poor reception and the nature of the pager system. She stated that there had never been any consequence to staff members if a problem occurred regarding staff not receiving a message through the pager.
[24] Amended ARD, page 124.

Yolanda, registered nurse

Yolanda provided a positive reference[25] for the applicant in her position as blood collector. She stated that the applicant was hardworking, honest, reliable and had outstanding skills as a blood collector.
[25] Amended ARD, page 130.

Arthur Satchell, patient

Mr Satchell provided a positive reference[26] for the applicant in her position as blood collector.
[26] Amended ARD, page 135.

Hafeez Koreshi,

In an email from Mr Koreshi to Mr Hackenberg dated 27 May 2014,[27] Mr Koreshi appears to recount his personal experiences of Mr Matthews.
[27] Amended ARD, page 131.

Correspondence and other documents

Various email and letter correspondence and other documents set out more detail of the applicant’s allegations and the respondent’s position.
In a letter from the applicant to Ms McDougall dated 18 February 2011,[28] the applicant lodged a complaint that Mr Matthews had treated her unfairly, been aggressive, intimidating and bullying toward her during her employment and that he had recently been pushing her to resign. The applicant also complained that Mr Matthews rostered her for only 16 hours per week, rather than 19 hours per week in accordance with her terms of employment, which was different treatment to other employees and caused the applicant uncertainty as to her entitlements. The applicant complained that when she had raised the issue with Mr Matthews on numerous occasions, he informed her that he did not understand the questions and accused her of ‘playing games’. The applicant also complained that Mr Matthews unfairly and unreasonably refused her reasonable request for leave when she had given more than eight months notice but had approved another employee’s leave for the same period. The applicant stated that Mr Matthews told her that if she wished to take leave she should resign, that he said that any attempt for review would be ineffectual, that “I see a lot of people like you and you will never win with me”, that she should direct any enquiries to the Human Resources Department and that he then threw his pen onto the table with force to indicate that he wanted her to leave his office.
[28] Amended ARD, page 7.
In a letter from Mr Matthews to the applicant dated 22 January 2013,[29] Mr Matthews directed the applicant not to request assistance of security staff to gain access to a store room. He set out a procedure for all staff to collect their trolleys from the store room at the commencement of their rounds. He directed the applicant to borrow a key from a pathology collected staff member if she required a key at other times.
[29] Reply, page 1.
In a letter from Mr Matthews to the applicant dated 13 March 2013,[30] Mr Matthews requested the applicant to submit a medical certificate in respect of the applicant’s daughter, which necessitated the applicant’s absence from annual mandatory fire safety training.
[30] Reply, page 20.
In a letter from the applicant to the Human Resources Manager dated 24 March 2013,[31] the applicant lodged a complaint that, during the course of her employment and especially after her complaint in February 2011, Mr Matthews had continued intimidating, harassing and discriminatory behaviour towards the applicant. The applicant complained that Mr Matthews refused to provide her with a storeroom key, which directly encumbered and prevented her from undertaking her required duties, he treated her differently to other employees and he treated her unfairly regarding her failure to attend compulsory fire training by not accepting a reasonable alternative to a medical certificate and in a manner that seemed intent on inappropriately securing termination of her employment.
[31] Amended ARD, page 10.
In a letter from Mr Hackenberg to the applicant dated 29 April 2013,[32] Mr Hackenberg stated that he had undertaken an investigation into the applicant’s complaints raised in her letter dated 24 March 2013 and determined that Mr Matthews did not act inappropriately or against the respondent’s code of conduct.
[32] Reply, page 21.
In a letter from Mr Matthews to the applicant dated 7 May 2013,[33] Mr Matthews directed the applicant to attend a meeting on 13 May 2013 to discuss her attendance and sick leave and invited her to bring a support person to the meeting.
[33] Reply, page 22.
In a letter from the applicant to Mr Matthews dated 11 May 2013,[34] the applicant responded to a Notice of Meeting and a letter dated 7 May 2013 in relation to her attendance, sick leave and a flexible rotating roster system that was to be imposed on the applicant. The applicant complained that she was being treated unfairly and differently to other employees who continued under a fixed rostering system. The applicant further complained of a wider and systemic attempt to treat her unfairly, differently to other employees, to undermine her employment and ultimately force her resignation. The applicant stated that Mr Matthews’ behaviour caused her intense worry and stress and it was particularly egregious in light of the vindictive, aggressive and intimidating manner in which he spoke to her on a regular basis. The applicant requested that an external party, such as the Human Resources manager, be present at any meeting the applicant was required to attend with Mr Matthews due to her concerns about his conduct.
[34] Amended ARD, page 13.
In a letter from the applicant to Mr Matthews dated 18 May 2013[35] (copied to Ms McDougall and Mr Hackenberg), the applicant requested Mr Matthews stop intimidating, bullying and harassing her regarding a proposed meeting. The applicant stated that on 13 May 2013, without acknowledging her concerns, Mr Matthews and Mr Hackenberg of the Human Resources Department harassed and pressured her to the point that she was almost at an emotional breakdown. The applicant stated that they insisted that she attend a meeting immediately and did not allow her to have a support person present. The applicant complained that Mr Matthews harassed, intimidated and bullied her and treated her in a derogatory and demeaning manner including by making fun of her accent and continually pretended that he could not understand her English. The applicant complained that
[35] Amended ARD, page 15.
Mr Matthews applied pressure for the applicant to resign, including in numerous heated phone exchanges and making changes to her working conditions without consultation. The applicant stated that Mr Matthews’ treatment of her had caused her psychological pain, fear and uncertainty and necessitated her to obtain medical attention for severe anxiety.
Minutes of a meeting on 21 May 2013 between the applicant and Julian Hackenberg, Human Resources Manager, were prepared by Mr Hackenberg and dated 12 August 2013.
Mr Hackenberg recorded that; the applicant expressed concern that she did not receive a replacement key to the storeroom because it was inconvenient for her because sometimes she was required to wait for other people who had a key; the applicant said she would only meet with Mr Matthews if he apologised in writing; the applicant confirmed that she had an anxiety disorder; the applicant thought that other part-time staff had set shifts; the applicant stated that she had only three absences in the past four months; she felt that she was being targeted.
In a letter from Ms McDougall to the applicant dated 22 May 2013,[36] Ms McDougal stated that the applicant stated that she could not attend the scheduled meeting on 13 May 2013 because she did not have a support person. Ms McDougal invited the applicant to attend a rescheduled meeting on 27 May 2013 to discuss rostering and her work attendance and the applicant was invited to bring a support person.
[36] Reply, page 24.
In an email from the applicant to Mr Hackenberg dated 30 May 2013,[37] the applicant responded to an email from Mr Hackenberg to her dated 27 May 2013, which invited her to a meeting regarding correspondence received from the applicant’s psychologist, Mei Tze Ling. The applicant stated that her various complaints regarding harassment, victimisation and bullying had never previously been acknowledged prior to Ms Ling’s correspondence. The applicant stated that she had attended all meetings asked of her. The applicant reiterated that she had been caused psychological distress.
[37] Amended ARD, page 17.
In an email from the applicant to Ms McDougall dated 30 May 2013,[38] the applicant complained that when she attended a meeting with Ms McDougall and Mr Hackenberg on
27 May 2013 to discuss issues raised in her correspondence, they insisted that Mr Matthews must attend the meeting. The applicant stated that she again explained that Mr Matthews had caused her very severe anxiety and that his presence would exacerbate her condition and she presented a letter from her doctor in relation to her condition, however
Ms McDougall insisted that the meeting could not occur if Mr Matthews was not present. The applicant stated that she was in obvious extreme psychological and physical distress and
[38] Amended ARD, page 18.
Ms McDougall refused Mr Hackenberg’s suggestion that the applicant be allowed five minutes to calm down. The applicant stated that Ms McDougall raised her voice in a ceaseless and confrontational manner, the applicant conveyed that she was seriously unwell and needed medical attention but Ms McDougall and Mr Hackenberg “callously forced” her out of the room which caused her further distress. The applicant stated that her longstanding complaints regarding Mr Matthews’ behaviour remained unacknowledged and she was given no indication that they were being considered or investigated. The applicant agreed to attend a further proposed meeting.
Emails from Ms McDougal to Mr Hackenberg on 30 and 31 May 2013,[39] Ms McDougal denied the applicant’s allegations including that Ms McDougal insisted that the meeting continued and raised her voice in a ceaseless and confrontational manner. Ms McDougal stated that:
“I find her actions and allegations all a smoke screen so as the rosters, time keeping issues and the fact she won’t meet with David will be put off. I do not believe she has been bullied or harassed, she just has a great strategy to ensure she gets what she wants or delays us addressing what we need to address. In 2011 she also used the aggressive and intimidating behaviour card, an investigation was undertaken with David Pryde and the allegations were not sustained.”
[39] Reply, pages 25 and 27.
Minutes of a meeting on 17 June 2013 between the applicant, Dr Trevor Cobain and
Mr Hackenberg, which were prepared by Dr Cobain, recorded that: the applicant expressed concern that her concerns had not been fully heard and investigated and she had not received responses or any minutes of meetings; the applicant stated that her work was impinged by Mr Matthews not providing her with a store room key and that she was required to wait for someone who had a key and she was unable to obtain her cardigan if she was cold during a shift.
In a letter from the applicant to Dr Cobain dated 16 July 2013,[40] the applicant denied that she had not reported allegations of discrimination, intimidation and racism to the respondent’s management. The applicant stated that the core nature of her allegations relating to Mr Matthews conduct was about intimidation, bullying and discrimination. The applicant complained that the respondent had been consistently and consciously ignoring her allegations and that his findings failed to consider relevant matters and were unacceptable. The applicant stated that Mr Hackenberg’s claims regarding the applicant using tissues as a barrier to avoid directly touching objects were false and fabricated and she found it egregious that Mr Hackenberg suggested to her doctor that she had obsessive compulsive disorder. The applicant stated that there were no complaints regarding the quality of her work. The applicant stated that she found it highly inappropriate, in circumstances where she had clearly expressed her fear that the respondent’s management was undertaking systematic attempts to undermine her employment and force her resignation, that Mr Hackenberg was asking her doctor whether there “are any medical reasons to prevent Ms Wu from meeting the inherent requirements of her position”. The applicant stated that the respondent’s false assertions of obsessive compulsive disorder affecting her work was highly insulting, insensitive and undermining. The applicant complained that Mr Hackenberg, with Dr Cobain’s consent, purposely misconstrued the applicant’s actions in demonstrating the operation of a locked door with the sole intent to accuse her of being mentally unstable. The applicant complained that Dr Cobain held his keys over the applicant’s head as a taunt and a demonstration of power. The applicant complained that the respondent’s management continued to withhold minutes of meetings from her. The applicant complained that the respondent’s request for her medical records was unsubstantiated, fabricated, contrived inappropriate and outrageous in the circumstances and nothing more than a deceptive attempt to undermine her employment. The applicant complained that the respondent’s continued failure to withhold a key was without operational justification as it was necessary for performance of her duties and discriminatory treatment as other blood collectors were provided with a key. The applicant repeated previous complaints and requested that systematic bullying, intimidation and discrimination from the respondent’s managers and Human Resources cease.
[40] Amended ARD, page 19.
In a letter from Dr Cobain to the applicant dated 24 July 2013, Dr Cobain stated:
“I refer to your letter dated 16 July 2013 outlining your response to my request that you provide your treating doctor with consent to provide SEALS with relevant medical advice.
Firstly, I wish to address your concerns. SEALS is not requesting your medical records, as you suggest. Following the meeting dated 17 June 2013, in which you stated that you were unable to engage and meet with Mr Matthews because you said that you did not feel safe to do so due to health concerns, and given the information provided by
Ms Mei Tze Ling, Psychologist, dated 17 May 2013, SEALS wishes to clarify this information and seek further related advice from your treating doctor.
Currently, there are outstanding matters that Mr Matthews is required to manage, which have been delayed. It is a requirement of your position that you report to and take direction from Mr Matthews. The current advice from Ms Ling is that you are not fit to engage or meet with Mr Matthews. SEALS have an obligation to provide all staff with a safe working environment.
Therefore, SEALS wishes to clarify Ms Ling's advice and seek further advice, in order to consider it, and determine if and how any adjustments or restrictions may be able to be accommodated.
I wish to make it clear that Mr Hackenberg has not fabricated any of the contents or information provided in the letter addressed to your treating doctor. However, Mr Hackenberg is providing your treating doctor a background of the issue and concerns that SEALS has. I am of the opinion that, given the nature of the health concerns identified by Ms Ling, that it is entirely reasonable and appropriate to include the information that was provided in the letter addressed to your treating doctor.
I note that you state that you ‘refuse consent for the disclosure’ of your ‘medical history’. As clarified previously, the request was for relevant medical information. I wish to draw your attention to the Procedures for Managing Non-Work Related Injuries and Health
Conditions (attached), which outlines the principles, process and responsibilities when managing staff with non-work related health matters. It states that an employer has the right to request an assessment of an employee's non-work related injury or health condition where it may impact on their ability to safely perform the inherent requirements and demands of their position.
The policy states that relevant advice should be sought from the employee's treating doctor and that employees are required to comply with a reasonable direction to attend and participate in a medical assessment. If the employer is unable to ascertain relevant advice from the employee's treating doctor, the employer may direct the employee to an independent medical assessment.
Further refusal to comply with such a reasonable direction may result in investigations leading to disciplinary action.
As such, I am providing you with a period of two weeks from the date of this letter in which to attend and request that your treating doctor respond to Mr Hackenberg's correspondence (attached). If you are unable to do so or are having difficulties with this request, please contact Mr Hackenberg...
I now wish to refer to your letter, section titled ‘Rostering’. You state that ‘Mr Matthews does not have grounds’ to vary your hours of employment. You are contracted to work 19 hours per week. However, I wish to make it clear that your letter of offer, dated 9 June 2010, states that ‘your rostered hours, starting times and finishing times will be determined on the basis of service provision requirements and in accordance with relevant industrial instruments and policies’. The Health Employees' Conditions of Employment (State) Award allows for a reasonable notice period, generally two weeks, in which an employee is to be notified of their roster. It is also an essential criterion, outlined in your position description – ‘Preparedness to work a flexible roster’.
In your letter, you state that "Mr Matthews has not provided any operational reason for such a drastic change in my working conditions". Please note that Mr Matthews has made numerous attempts to meet with you in order to explain, consult and obtain feedback from you regarding this matter. Although Mr Matthews has accommodated your request to work a fixed roster previously, Mr Matthews now wishes to review this and is proposing a more fair and equitable rostering arrangement, and more access to weekend shifts for other staff.
In your letter you mention ‘caring responsibilities’ which are currently preventing you from working the other days which you may be required to work in the proposed roster. Please outline to me, for consideration, the exact nature of these caring responsibilities, how they may be considered to impact on you meeting the proposed roster, and a reasonable timeframe in which you will be able to make changes to this arrangement in order to meet the requirements of your position and the roster. Please provide this information to me by close of business – two weeks from the date of this letter...
In the absence of the above requested information, a recommendation will be made to Mr Matthews to provide you one month's notice of an amendment to your roster so that it correctly reflects that of the agreement of your contract of employment. Please also note, refusal to participate in any roster changes may result in investigations leading to disciplinary action being taken against you.”

In a letter from the applicant to Dr Cobain dated 29 July 2013,[41] the applicant complained that he was unreasonably, unjustly and unconscionably, purposely ignoring and failing to investigate her allegations of bullying, intimidation and harassment. The applicant complained that minutes of meetings which had been provided to her were inaccurate, deceptive misrepresentations. The applicant complained that she had still not received minutes of other meetings. The applicant complained that she had been denied due process. The applicant stated that allegations regarding her using tissues to hold a door handle were wholly fabricated and that the respondent’s request for her medical records was wholly unjustified and actions which hurt her significantly. The applicant repeated allegations and complained that no investigation into the allegations of bullying, intimidation and harassment had been undertaken outside of an interview of Mr Matthews and that almost all of the substantive issues raised by her were continually ignored. The applicant stated that continued requests that she meet with Mr Matthews was deeply distressing to her and was creating a hostile work environment. The applicant stated that Dr Cobain’s assertion that her inability to work in close contact with Mr Matthews was deeply egregious and unsettling. The applicant demanded that her allegations not be dismissed and that the respondent stop requesting that she meet with Mr Matthews. The applicant extended her complaint of bullying intimidations and harassment not only to Mr Matthews but also to the respondent’s management.
[41] Amended ARD, page 25.
Mr Hackenberg’s record of a meeting on 1 August 2013[42] with Mr Matthews and Rebel Lyon recorded that on a Saturday morning, between one and two months ago, Ms Lyon had a “run-in” with a blood collector she believed to be the applicant and Ms Lyon informed the applicant that her conduct was unprofessional in talking loudly and aggressively on her mobile phone in a patient’s room. The applicant responded that she was on a “business call” to do with work but she was arguing on the phone in a language other than English.
[42] Reply, page 34.
Mr Hackenberg’s record of a meeting on 5 August 2013[43] with Ms Wilkins and Mr Matthews recorded that, approximately two months ago, Ms Wilkins saw an altercation between a person, Amy, and a blood collector who was trying to get into a patient’s room.
[43] Reply, page 35.
Emails between Mr Hackenberg and Kaitlyn Whitehall (cc Mr Matthews) dated
6 August 2013,[44] recorded that Mr Hackenberg and Mr Matthews obtained information from Ms Whitehall to the effect that, on two occasions being about six weeks previously and about three weeks previously, a blood collector, believed to be Ms Wu, had eaten bread which
[44] Reply, page 36.
Ms Whitehall had brought into the staff room for morning tea and had also taken packets of food from the patient’s tea room. Ms Whitehall stated that the applicant had apologised to her and explained that she did not know that the bread belonged to her.
Emails between Mr Hackenberg and Rachel Shoemark (cc Mr Matthews) dated
[45] Reply, page 38.
6 August 2013,[45] recorded that Mr Hackenberg and Mr Matthews obtained information from Rachel Shoemark to the effect that the applicant had taken and consumed another person’s drink which was in the staff fridge.
Emails between Mr Hackenberg and Amy Harris (cc Mr Matthews) dated 6 August 2013,[46] recorded that Mr Hackenberg and Mr Matthews obtained information from Amy Harris to the effect that the applicant left a patient’s room only after several requests by Ms Harris and then tried to re-enter the room unsuccessfully and then waited outside the room.
[46] Reply, page 39.
In an email from the applicant to Dr Cobain dated 9 August 2013, [47] the applicant complained that she had not been provided with minutes of some meetings and that minutes of meetings which had been provided to her were inaccurate. The applicant complained about the respondent’s communications with her doctor and requests for her medical records.
[47] Amended ARD, page 29.
A document with a handwritten date of 12 August 2013[48] purports to provide a summary prepared by Dr Cobain of a meeting on 21 May 2013 between the applicant, Dr Cobain and Mr Hackenberg. It stated:
“We reserve the right to attempt to obtain expert advice on your current medical condition and your ability to performed the required duties. We have previous advice from your treating psychologist that you may have an adjustment disorder with anxiety and depressive mood. We have requested that you attend your treating doctor to seek relevant medical advice on the 4^th July 2013 and again on the 24^th July 2013. On each occasion you have refued to follow these requests.
In addition Julian Hackenberg and I were very concerned with your behaviour and demeanour at the meeting on 17 June 2013. Mr Matthews was not present at that meeting but you appeared to be very anxious, agitated, and distressed. During the meeting you took a telephone call and appeared to be very abusive down the telephone. During the meeting you also insisted on using a tissue between your hand and any object that you touched and also needed to sit on a tissue when you sat on the chair in the office. This concerned us given that you work in a clinical setting and given previous anxiety concerns raised by you. We also had a bizarre discussion relating to keys which eventually led to you wishing to demonstrate that you would be locked out of the office if you went outside the office locked the door and did not have a key to get back on.
I therefore put it to you that SEALS has a duty of care for all in our workplace. We are genuinely concerned for your welfare and obviously the welfare of others in the workplace and the patients who you are in contact with regularly during your employment.
I will be asking Mr Hackenberg to call another meeting in the near future so that we can bring this situation to some resolution.”
[48] Reply, page 31.
In a letter from the applicant to Mr Hackenberg dated 18 August 2013,[49] the applicant stated that her mental health was fine prior to bullying treatment by Mr Matthews and the respondent’s management. She alleged that her mental health had deteriorated solely as a result of those matters. The applicant complained of delay between her reporting of allegations of bullying and intimidation against Mr Matthews and any action being taken. The applicant stated that there was no action and no acknowledgement of her allegations before she presented medical evidence of distress. The applicant complained that investigation of her allegations was inadequate and findings were not explained and did not address all of her allegations. The applicant complained there had been no attempt to properly investigate nor manage Mr Matthews behaviour and the respondent’s management had continually insisted that she attend a meeting with Mr Matthews despite her allegations and obvious distress. The applicant repeated previous complaints that the respondent’s management fabricated assertions about her behaviour using tissues and manufactured allegations that she had a non-work related mental health condition to undermine her employment in a malicious and hurtful manner. The applicant denied having a non-work related health condition.
[49] Amended ARD, page 31.
In a letter from the applicant to the Anti-Discrimination Board of NSW dated
[50] Amended ARD, page 38.
12 November 2013,[50] the applicant detailed her allegations of systematic bullying, intimidation and discrimination from the respondent’s management and Human Resources department.
In an email from the applicant to Dr Cobain dated 14 November 2013,[51] the applicant repeated allegations that the respondent’s management acted inappropriately by writing to the applicant’s physician on 29 August 2013 and describing behaviours of the applicant in a manner which was fabricated, misleading or deceptive.
[51] Amended ARD, page 46.
Minutes of a meeting dated 27 November 2013[52] between Mr Hackenberg and Mr Matthews recorded that Mr Matthews stated to the effect that not all staff had a key to the storeroom as it was unnecessary and did not impede her performing her duties ,because all staff access the store room together at the beginning and end of each shift. Mr Matthews stated that the applicant had been given a key but it was not replaced because there were a number of issues with her arriving late, leaving early and going missing during her shift and it was an attempt to manage her attendance as it would ensure that she would have to turn up at work on time and go to the store room with all the other staff. Mr Matthews stated that he and
[52] Reply, page 40.
Ms McDougall decided not to replace the applicant’s key in the context of assessing risk following allegations, which were found not be sustained, that Ms Wu had been stealing cleaning products from the hospital and using them for personal use. Mr Matthew stated that the applicant had been employed on the basis of a flexible rotating roster, which was the case with most other permanent part-time staff. Mr Matthews stated that although staff generally worked set days, there was flexibility in the rostering when required. Mr Matthews stated that other staff felt it was unfair that the applicant did not agree to the same level of flexibility. Mr Matthews stated that he wanted to ensure that the applicant was as flexible as the other staff, however the applicant had refused to meet him to discuss the rostering arrangement.
In an email exchange between the applicant and Mr Schultejohann dated
[53] Amended ARD, page 48.
8 December 2013,[53] the applicant complained that it was inappropriate in all the circumstances, including that her allegations were then under external investigation, that she be required to attend a meeting without being advised of the purpose of the meeting or the matters proposed to be discussed.
In a letter from Mr Shultejohann to the applicant dated 9 December 2013,[54] the applicant was advised of a number of complaints of unsatisfactory behaviour and misconduct had been made against, which were being investigated by Mr Schultejohann on behalf of the respondent. The applicant was required to attend an interview as part of the investigation, and was informed that she could have a support person in attendance and of the Employee Assistance Program that was available. The letter stated:
“It is alleged that:
•    On a number of occasions, including Monday 5 August 2013 at approximately 10am, you inappropriately approached the Sutherland Hospital Security Office to request access to the SEALS Sutherland Collection Store Room, stating words to the effect of ‘I need to get my cardigan and handbag from the store room’. This is despite being informed on a number of occasions, including in a letter addressed to you from Mr Matthews dated 22 January 2013, that you are not to approach the Security Office for this reason.
•    On a Sunday morning between April and May 2013, while on the Yarrabee Ward, Sutherland Hospital, you acted in an inappropriate and unprofessional manner by refusing to leave a patient’s room when asked repeatedly by nursing staff to do so. Eventually, the nurse concerned was required to hold the door to the patient's room closed in order to prevent you from getting back into the room.
•    On a Saturday morning between May and June 2013, while on the Yarrabee Ward, Sutherland Hospital, you acted in an inappropriate and unprofessional manner by talking in a loud and aggressive manner while in a patient's room. The nursing staff member involved asked you to leave the room and you responded to the effect that you did not have to because you were on a “business call".
•    On a number of occasions, while on the Yarrabee Ward, Sutherland Hospital, you took and/or consumed food which did not belong to you. This includes a loaf of bread that was stored in the corner of the staff tea room, a ‘breaker’ that was stored in the refrigerator of the staff tea room, and weetbix and fruit puree from the patients' team room.
•    You have been engaged in employment which has the potential to present a conflict of interest with your employment with SEALS.
NSW Health Pathology considers allegations and complaints of this nature to be a serious issue, given that SEALS Collection staff are required to work closely with the Sutherland Hospital, hospital staff and patients, and if proved may result in disciplinary action against you, up to and including possible termination of your employment...”
[54] Reply, page 43.
In a letter from the applicant to Mr Schultejohann dated 16 December 2013,[55] the applicant responded to his letter dated 9 December 2013. The respondent denied allegations that she asked security to access the storeroom for personal items, denied that she acted inappropriately in an incident involving a patient and a nurse, denied that she took a call in the manner alleged and denied that she took foodstuffs as alleged and noted that it was in a publicly accessible area. The applicant noted the significant delay, of up to eight months, in notifying the applicant and investigating the allegations. The applicant stated that the respondent’s allegations against her were vague, ambiguous, unsubstantiated, unfair because she was denied procedural fairness, and were a deliberate action to unfairly pressure the applicant and force her from her employment. The applicant asked various questions regarding the respondent’s allegations.
[55] Amended ARD, page 51.
In an email from the applicant to Mr Schultejohann dated 27 December 2013,[56] the applicant complained that he and Ms Whitwham, without prior notice nor arrangements being made for a meeting, waited outside the applicant’s work area and summoned her to a meeting when she finished her shift. The applicant stated that Mr Schultejohann and Ms Whitwham applied significant and serious pressure to force her into an impromptu meeting with them when the applicant had no prior notice, was surprised, unprepared and did not have a support person present. The applicant stated that Mr Schultejohann and Ms Whitwham stated that the seven day period that the applicant was allowed for a response to the respondent’s letter had expired, although the letter did not state such a time period for a response required her to immediately attend an impromptu meeting with them in relation to the respondent’s allegations. The applicant alleged that they failed to adequately respond to the questions that she had asked in her last letter.
[56] Amended ARD, page 57.
In a letter from the applicant to Mr Schultejohann dated 12 January 2014,[57] the applicant stated that the respondent’s allegations against her were vague and required clarification, the respondent had not answered her questions and insisted that the respondent provide more detailed information so that she had an opportunity to respond. The applicant stated that it would be procedurally unfair for the respondent to make any determination without providing her with the information she required. The applicant indicated that any request that she attend an interview was inappropriate until she was provided with the required information. The applicant stated that, based on the history, she had a genuine belief that she would be treated unfairly and suffer harm during any meeting and she rejected the assertion that she failed to comply with a lawful direction to attend an interview and to cooperate with the investigation which would justify any disciplinary action. The applicant stated that on
[57] Amended ARD, page 58.
16 December 2013, Mr Schultejohann and Ms Whitwham ambushed and confronted the applicant as she was leaving her workplace and pressured the applicant to immediately attend a meeting with them, without any prior notice to the applicant and without allowing her an opportunity to have a support person present. The applicant stated that it related to an investigation of missing foodstuff from over a year ago. The applicant stated that she suffered humiliation and embarrassment because the confrontation was in a public area and staff and patients were made aware that she was under some sort of disciplinary investigation. The applicant stated that she informed them that she had a response prepared and that she would send it later that day and she refused to attend the meeting until it was agreed in advance. The applicant stated that she felt distressed, pressured and extremely vulnerable due to their harassing and intimidating behaviour and insistence that she attend the meeting, and she consequently had to leave. The applicant demanded that her complaint of serious harassment and intimidation in the workplace be immediately investigated. The applicant rejected minutes of a meeting on 3 December 2013 as deficient, inaccurate and a misrepresentation which is misleading and deceptive. The applicant stated that she had made a complaint to the Anti-Discrimination Board regarding disability discrimination, racial discrimination and victimisation against the respondent.
A Staff Incident/Allegation Investigations Report dated January 2014,[58] set out the findings of Mr Schultejohann’s investigation of the various allegations against the applicant.
[58] Reply, page 46.
In an email from the applicant to Mr Schultejohann dated 6 February 2014,[59] the applicant rejected his findings as unreasonable, invalid and an abuse of process.
[59] Amended ARD, page 66.
A letter from A/Prof Robert Lindeman to the applicant dated 28 February 2014,[60] stated that all the allegations against the applicant had been investigated and were found to be sustained. The letter noted the applicant’s response to the findings dated 6 February 2014 and that the applicant insisted that she not be interviewed as part of the investigation. The letter stated that the respondent was considering taking disciplinary action against the respondent, including a formal warning, and invited the applicant to make a written submission in that regard.
[60] Reply, page 62.
An AIMS Incident Detail form dated 1 March 2014,[61] stated that a complaint was received on 1 March 2014 that the applicant had failed to respond to her pager during her shift on that day and on at least three prior occasions. The report stated that the applicant had explained on the prior occasions that she had forgotten her pager.
[61] Reply, page 64.
In an email from the applicant to Dr Robert Lindeman, Executive Medical Director of the respondent, dated 5 March 2014,[62] the applicant described a history of systemic and institutionalised bullying, intimidation and harassment by Mr Matthews, Mr Schultejohann and Ms Whitwham and other managers of the respondent. The applicant stated that her request that their conduct towards her be investigated was ignored. The applicant responded to and rejected, as baseless, unfair, unjust and the result of a vendetta against her, allegations by the respondent against her in relation to approaching hospital security; incident with a nurse; taking or consuming minor foodstuffs at the workplace; and having other employment which was a conflict of interest to her position with the respondent. The applicant asserted that she was denied procedural fairness. The respondent alleged systemic bullying and harassment by the respondent. She requested that Mr Schultejohann’s findings were overturned and that he be investigated. She requested that any disciplinary action be deferred that the respondent not communicate with her regarding the allegations, pending determination of her complaint to the Anti-Discrimination Board.
[62] Amended ARD, page 68.
In a letter from Dr Trevor Cobain, Acting Network Director of the respondent, to the Anti-Discrimination Board of NSW dated 7 March 2013, (this date appears to be incorrect and it should be 7 March 2014) the respondent provided a response which denied and refuted the applicant’s complaints of disability discrimination, racial discrimination and victimisation. The response stated that the applicant’s allegations of bullying against Mr Matthews had been investigated by Human Resources, it was found that the allegations were not substantiated and the applicant had been notified of that finding on 29 April 2013. The response stated that, despite being given an opportunity to do so, the applicant had not provided information supporting her allegations of bullying by Mr Matthews or the information provided only related to matters which had already been investigated and finalised. The response rejected the assertion that the respondent manufactured or misrepresented the applicant’s behaviour in order to support the presumption that she had a mental health condition and stated that on 17 June 2013 she was observed by Mr Hackenberg and Dr Cobain to have behaviours of concern, including deliberately locking herself outside of an office and using a tissue as a barrier to avoid physically touching objects in the office. The respondent denied acting unreasonably or in a discriminatory manner in requesting advice from Ms Wu’s treating doctor and directing her onto sick leave. The respondent denied acting in contravention with its procedures for managing non-work related injuries and health conditions. The respondent denied that the respondent was treated unfairly or less favourably on the grounds of her race including by Mr Matthews conduct towards her and in relation to her rostering and attendance. Further, the respondent denied that it took any action which constituted victimisation. In particular, the respondent denied that it singled the applicant out and denied her basic work resources and put pressure on her to resign. The respondent denied the complaint of victimisation. The respondent stated that on 9 December 2013, allegations were put to the applicant arising from: a complaint made on 19 July 2013, made by Sarah Massey, Acting Nursing Unit Manager, that the applicant had been taking staff and patient food; advice on 5 August 2013, by security staff, that the applicant had requested security assistance to gain access to a storeroom following Mr Matthews directing the applicant, on 22 January 2013, that she not request security staff for access to the storeroom; and on
4 November 2013, the respondent becoming aware that the applicant had secondary employment in “another lab” which was considered to be a conflict of interest. The respondent explained the delay in putting those allegations to the applicant on the basis that she was absent on sick leave. The respondent stated that its actions were taken for legitimate and proper reasons and were not influenced by the applicant raising allegations of discrimination.

Prior to commencement of the applicant’s employment with the respondent on 7 June 2010, there is evidence that the applicant attended her general practitioner in relation to some psychological distress in relation to work-related stress and failure of her house settlement at late notice leaving her without accommodation. However there is no record of any contemporaneous formal psychological or psychiatric diagnosis.
After commencement of the applicant’s employment with the respondent on 7 June 2010, the evidence shows that the applicant had acute psychological distress including suicidal thoughts in relation to what was described as an acute situational crisis involving traumatic experiences with her tenant on 29 December 2012, which resulted in an overnight hospital admission. At that time, no prior history of depression or anxiety disorder was recorded and, again, there was no formal psychological or psychiatric diagnosis. The contemporaneous diagnosis was “Social problem”.
The evidence records that the applicant was referred for and received follow-up psychological treatment between 1 January 2013 and 1 February 2013. In his referral letter dated 5 January 2013, [223] the applicant’s treating general practitioner, Dr Li, described the presenting problem as “stress and depression” and the only history that he recorded was “Anxiety/Depression” on 1 January 2013. Relevantly, Dr Li did not record any psychological history prior to that time.
[223] Respondent’s AALD dated 7 February 2023, page 1247; SOD, page 64.
Psychologist, Ms Ling’s report dated 8 January 2013[224] recorded a history of the applicant feeling anxious and depressed for a period of four weeks (only) as a result of being intimidated and bullied by a new tenant that moved into her rental property and distress after the police took her to hospital for an assessment when she sought police assistance.
[224] ARD, page 680. Note that this does not appear to be in the Amended ARD.
Ms Ling diagnosed “Adjustment Disorder with Mixed Anxiety and Depressed Mood due to issues of intimidation with her tenant”.
Whilst Dr Ye’s clinical notes dated 1 February 2013,[225] recorded that the applicant was given Allied Health Referrals, no other details are recorded and there is no other evidence regarding ongoing treatment.
[225] Respondent’s AALD dated 7 February 2023, page 670; SOD, page 28.
The next significant contemporaneous evidence regarding the applicant’s psychological condition is the report of Ms Ling dated 17 May 2013.[226] Ms Ling reported that the applicant presented on 17 May 2013 in distress and reported that she could not cope any more with issues of workplace bullying and the applicant reported ongoing verbal abuse, discrimination, intimidation and racism by her manager, David Matthews since 2011.
[226] Amended ARD, page 313.
I note that there is some other evidence, which is not contemporaneous, which recorded a history of pre-existing or non-work related psychological symptoms. For example:
(a) Dr Verma’s clinical notes dated 5 May 2014,[227] recorded that the applicant had been depressed/anxious for the last three years and that there had been an incident 3 years prior in 2011 when the applicant “told her boss she needed holidays – unsupportive”, and
(b) Dr Roberts’ reports, and particularly her report dated 4 February 2023, which detailed the applicant’s psychological history based on a review of medical records, and included Dr Roberts’ opinion that the applicant had a possible pre-existing personality disorder with paranoid traits.
[227] Respondent’s AALD dated 7 February 2023, pages 96 and 98; SOD, page 25.
However, the treating and independent medical evidence does not otherwise record evidence of any significant pre-existing or non-work related psychological or psychiatric condition.
I accept that the evidence shows that the applicant has largely denied any significant prior psychological or psychiatric history.
However, in Dr Roberts’ report dated 1 May 2018,[228] Dr Roberts recorded[229] that the applicant did, in answer to Dr Roberts’ question of whether she had ever seen any psychologists, psychiatrists or counsellors, reply “yes” and the applicant described seeing a number of psychologists and psychiatrists including Ms Ling who the applicant commenced to see in 2013. The applicant described seeing a psychologist at Sutherland Hospital “when the matter started at the beginning”. Dr Roberts recorded that the applicant denied having seen any other psychologists, psychiatrists or counsellors, ever.
[228] Reply, page 332.
[229] Reply, pages 345, 346 at [6.12] to [618].
It is apparent from Dr Roberts’ report that the applicant did not inform Dr Roberts of her attendance at the St George Hospital on 29 December 2012.
However, as I stated above, it is apparent from the hospital’s records that the applicant’s admission was at the instigation of the police and there was no contemporaneous mental health diagnosis at that time. Further, there is no evidence of the applicant being referred to a psychologist or psychiatrist prior to the applicant being referred to Ms Ling in 2013.
I note that Dr Roberts’ report dated 4 February 2023 recorded that the applicant claimed that she had never suffered any workplace stresses at all before 2011 when she said that her problems with the respondent commenced.[230] As noted by Dr Roberts, the medical evidence does show that the applicant did previously report workplace stress on a number of occasions, including in 2008 when the applicant was involved in a dispute with her employer and in 2009 when the applicant attended Dr Teo.
[230] SOD, page 17 at [3.2] to [3.7].
The applicant has not provided any supplementary statement which addresses matters raised in the report of Dr Roberts report dated 4 February 2023. The applicant has not provided any direct evidence in relation to her capacity, understanding of the significance of relevant events or any lapses in memory with the passage of time.
However, as I stated above, there is no evidence that the applicant had any contemporaneous formal psychological diagnosis nor that she was referred for psychological treatment prior to 2013. Further, there is no evidence that the applicant suffered any prior longstanding or psychological incapacity which was recognised as clinically significant at the time. I accept the applicant’s submission that, in the circumstances, it would be reasonable for the applicant to have regarded her prior workplace stress as somewhat dated and relatively minor personal issues which she got over quickly and which did not register to her as a mental health issue of any significance in giving history to doctors.
I accept that there is some inconsistency between the applicant’s psychological history reported by the applicant to Dr Roberts and other treating and expert doctors. It appears that Dr Roberts asked particularly targeted questions to elicit information about the applicant’s history. In the circumstances, I consider that the inconsistency can be reasonably explained, to a degree, by the questions asked of the applicant, the passing of time and possible lapses in the applicant’s memory.
I note that the evidence demonstrates that the applicant has fairly consistently reported various work-related events which are the subject of these proceedings.
Having carefully considered all the evidence as a whole, I am not persuaded that the applicant made any deliberate attempt to deny or mask her pre-existing or non-work related psychological history. To the contrary, considering the evidence as a whole, I am satisfied on the balance of probability, that the applicant’s answers were given honestly and that the applicant is a credible witness.

Injury

The mechanism of injury

The various evidence, correspondence and documents referred to above, detail the circumstances of the applicant’s employment and various allegations and counter-allegations made by the applicant and the respondent respectively, from about 2011.
Having regard to the evidence as a whole, I accept the following chronology of events:
(a)    from at least February 2011, the applicant made numerous and persistent complaints over a number of years about her treatment at work by Mr Matthews, Ms McDougall, Mr Hackenberg, Dr Cobain, Mr Schultejohann and Ms Whitwham;
(b)    the applicant’s request to take annual leave in or about June and July 2011 was initially refused by Mr Matthews, although after the applicant made repeated requests and persistently appealed to more senior managers it was eventually allowed;
(c)    the respondent, through Mr Matthews, sought to change the applicant’s work hours so that instead of working on set days each week as she did from the commencement of her employment, she was to work on a flexible roster which required her to be available to work on different days each week according to the needs of the respondent. In this regard, I note that Mr Matthews did not dispute that he required the applicant to work flexible hours, although he explained that was in accordance with the terms of the applicant’s contract of employment;
(d)    in or about late 2013, the applicant was absent on a period of sick leave which related to a previous workers compensation claim and her complaints about
Mr Matthews’ conduct towards her;
(e)    in contemplation of the applicant’s return to work from sick leave, the applicant initially provided a medical certificate which certified to the effect that she was fit to return to work on the basis that she was not managed by Mr Matthews. However, upon the respondent’s insistence, the applicant subsequently provided a medical certificate which did not contain that restriction;
(f)    the applicant returned from sick leave to work on or about 7 December 2013. Upon the applicant’s return to work, she continued to be directly managed by
Mr Matthews;
(g)    shortly after the applicant returned to work, the respondent investigated certain complaints and allegations about the applicant’s work conduct prior to her commencing on sick leave, in particular that: the applicant inappropriately requested security to access a store room, refused to leave a patient’s room when asked to do so; spoke in a loud and aggressive manner in a patient’s room; took food from the staff room that did not belong to her; and was engaged in employment which had potential to conflict with her employment with the respondent. Mr Matthews initially undertook the investigations but they were later undertaken by Mr Schultejohann;
(h)    by letter dated 13 March 2013, Mr Matthews requested the applicant to provide a medical certificate in relation to her non-attendance at compulsory training;
(i)    the applicant subsequently met with Mr Matthews about his request for a medical certificate;
(j)    on 24 March 2013, the applicant wrote a letter of complaint to Human Resources Manager, Julian Hackenberg regarding Mr Matthews’ conduct towards her, including that he had continued intimidating, harassing and discriminating towards her and had acted unreasonably in not accepting a reasonable alternative to a medical certificate;
(k)    on or about 29 April 2013, Mr Hackenberg replied that the applicant’s complaint about Mr Matthews’ conduct had been investigated and was found not to be substantiated;
(l)    by letter dated 7 May 2013, Mr Matthews directed the applicant to attend a meeting with him on 13 May 2013 to discuss her attendance and sick leave and invited her to bring a support person to the meeting;
(m)     on 11 May 2013, the applicant responded in writing to Mr Matthews, informing him that she could not attend the proposed meeting on 13 May 2013 and she suggested another day. The applicant again complained about Mr Matthews’ treatment of her and she requested that an external party be present at any meeting she attended with him;
(n)    on 13 May 2013, the applicant had telephone conversations with Mr Matthews and Mr Hackenberg who required her to attend a meeting with them that morning. The applicant complained about Mr Matthews treatment of her and declined to attend the meeting that day because she could not find a support person. The applicant subsequently alleged that Mr Matthews repeatedly said “I don’t understand what you are talking about” and that Mr Hackenberg was rude to her, spoke loudly and his attitude was non negotiable in relation to her attendance at the meeting and that she felt pressured to attend the meeting;
(o)    later on 13 May 2013, the applicant attended her physician, Dr Yee, because she felt sick and upset and she was referred to psychologist, Mei Tze Ling;
(p)    on 17 May 2013, the applicant had her first consultation with Ms Ling who provided a letter stating the applicant’s symptoms;
(q)    on 18 May 2013, the applicant wrote a letter to Mr Matthews seeking to stop him intimidating, bullying and harassing her regarding the proposed meeting;
(r)    on 21 May 2013, the applicant attended a meeting with Mr Hackenberg, reiterated her complaints of being treated unfairly and said that she would only meet with Mr Matthews if he apologised to her;
(s)    on 27 May 2013, the applicant attended a meeting with Ms McDougall and
Mr Hackenberg. The applicant presented a letter from her doctor regarding her psychological condition and objected to Mr Matthews attendance at the meeting. The applicant subsequently complained that in that meeting, Ms McDougall raised her voice in a ceaseless and confrontational manner and “callously” forced her out of the room. Ms McDougall and Mr Hackenberg subsequently denied treating the applicant in that manner. However Ms McDougall did acknowledge that they sought Mr Matthews attendance at the meeting;
(t)    on 17 June 2013, the applicant attended a meeting with Dr Cobain and
Mr Hackenberg. The applicant complained that her concerns about treatment by Mr Matthews had not been fully heard and investigated;
(u)    between June 2013 and December 2013, the applicant continued to complain that her concerns about treatment by Mr Matthews had not been fully heard and investigated. The respondent, through Dr Cobain raised concerns and sought information about the applicant’s psychological state including as a result of her behaviour at the meeting on 17 June 2013, however the applicant denied having a non-work related health condition;
(v)    on or about 12 November 2012, the applicant complained to the Anti-Discrimination Board of NSW of systematic bullying, intimidation and discrimination in her employment;
(w)   on or about 9 December 2013, the applicant was formally advised of an investigation of complaints regarding her behaviour and conduct and potential disciplinary action, in relation to: inappropriately requesting security to access the store room to obtain her cardigan and handbag; inappropriately refusing to leave a patient’s room when asked to do so; talking in a loud and aggressive manner whilst in a patient’s room; consuming or taking food from the staff room; and being engaged in employment which was potentially in conflict with her employment;
(x)    on or about 16 December 2013, the applicant was approached by Ms Whitwham and Mr Schultejohann in the hallway near the staff room and requested to attend a meeting immediately, which she had not previously been notified of and did not have the opportunity to arrange a support person to attend. On a number of occasions, the applicant subsequently complained that she had been unfairly ambushed by Ms Whitwham and Mr Schultejohann;
(y)    the applicant responded to the allegations in writing on 16 December 2013 and 12 January 2014;
(z)    on a number of occasions, the applicant declined to attend an interview with
Mr Schultejohann on 7 and 14 January 2014 in relation to the allegations against her, until the respondent responded to various issues which she raised regarding Mr Matthews conduct towards her;
(aa)    a Staff Incident/Allegation Investigations Report dated January 2014, set out the findings of Mr Schultejohann’s investigation of the various allegations against the applicant;
(bb)    on or about 27 February 2014, Mr Schultejohann advised the applicant in writing that the allegations against her were sustained and the respondent invited the applicant to make submissions on proposed disciplinary action, which included a first and final warning;
(cc)     on or about 4 March 2014, Mr Matthews and the applicant had a telephone conversation regarding a complaint that the applicant was not contactable on her pager during her shift. The applicant subsequently alleged that Mr Matthews intimidated and verbally abused her in that telephone conversation;
(dd)    on or about 9 March 2014, the applicant submitted a complaint to Dr Lindeman regarding her treatment by Mr Matthews and the respondent’s management. The applicant alleged that Mr Matthews had intimidated and abused her in a phone conversation and that she had been subjected to bullying, harassment and other inappropriate conduct;
(ee)    the applicant was absent from work on stress leave from about 9 March 2014;
(ff)    subsequently, Mr Hackenberg and Dr Cobain of the respondent commenced to investigate allegations that the applicant was uncontactable by pager during her work shift on or about 1 March 2014 and at other times;
(gg)    on 17 April 2014, a Factual Investigation Report, prepared by Maurice J Kerrigan Investigators on behalf of the insurer, concluded that the applicant’s allegations that she sustained a psychological injury as a result of various work events were not substantiated;
(hh)    on 17 July 2014, the Anti-Discrimination Board declined the applicant’s complaints of victimisation because the complaints were thought to be lacking in substance,[231] and
(ii)    on or about 18 May 2015, the respondent notified the applicant that it had decided to terminate her employment due to her refusal to follow lawful and reasonable directions (to attend a medical examination) given to her in determining her capacity to safely return to work.
[231] Reply, page 372 (as noted by Dr Roberts).
The applicant’s allegations are denied or explained by various witnesses.
It is clear from the evidence, and I accept that, from at least February 2011, the applicant persistently complained to numerous people about the conduct of Mr Matthews towards her. The applicant’s allegations about Mr Matthews’ conduct towards her, contained in the applicant’s various correspondence which is set out above, is generally consistent with the evidence given by the applicant in her various statements and in the history that she reported to treating and expert doctors.
Mr Matthews did not dispute that he participated in various alleged personal and telephone conversations with the applicant. However, Mr Matthews denied that he verbally abused the applicant during meetings in relation to annual leave in rostering in 2013. Mr Matthews denied the applicant’s complaint that he threw a pen on the table and said “I don’t understand what you are talking about”.
As noted above, I accept that on or about 29 April 2013, Mr Hackenberg notified the applicant that her complaint about Mr Matthews’ conduct had been investigated and was found not to be substantiated. However, it is clear that the applicant later expressed further concerns about Mr Matthews’ subsequent conduct towards her. For example, the applicant complained about Mr Matthews abusive behaviour towards her in a telephone conversation on 4 March 2014 regarding the applicant not being contactable on her pager during her shift. Mr Matthews did not dispute that he had a telephone conversation with the applicant on that occasion although he did dispute screaming at her during the call.
It is also clear from the evidence that the applicant expressed continuing reluctance to attend any personal meetings with Mr Matthews due to her concerns about his past behaviour towards her. The applicant’s evidence in this regard is consistent with evidence of
Mr Hackenberg and Dr Cobain’s letter dated 24 July 2013 that the applicant had adamantly expressed that she did not wish Mr Matthews to attend any meeting with her because of the way in which he had treated her. Further, Mr Matthews acknowledged that, in the telephone conversation with the applicant on 4 March 2014, the applicant expressed her reluctance to meet with him personally and explained that she was scared because he was rude to her.

It appears that despite the applicant’s reported ongoing concerns about Mr Matthews conduct towards her, he remained significantly involved in her management.
The determination of the Anti-Discrimination Board to decline the applicant’s complaints of victimisation because the complaints were thought to be lacking in substance is not binding in these proceedings. The determination of the Anti-Discrimination Board is based on a consideration of different legislation than the legislation which is relevant to determination of these proceedings.
Whilst I acknowledge that many of the applicant’s allegations have been disputed or explained, considering the evidence as a whole, and having regard to my previous findings in relation to the applicant’s credit, I do feel a real sense of persuasion that the facts alleged by the applicant are substantially a truthful account of her experiences in her employment with the respondent.
On that basis, I am satisfied and find that, on the balance of probabilities:
(a)    Mr Matthews conducted meetings with the applicant in an aggressive and intimating tone;
(b)    Mr Matthews made fun of the applicant’s accent and pretended he could not understand English;
(c)    Mr Matthews refused the applicant’s annual leave in 2011 despite her having given significant notice;
(d)    Mr Matthews required the applicant to work flexible hours and scheduled her for shifts that she was unable to work;
(e)    Mr Matthews required the applicant to provide a medical certificate for her failure to attend compulsory fire training and refused the applicant’s reasonable attempts to provide alternative evidence for her non-attendance;
(f)    Mr Matthews yelled at the applicant for not answering her pager;
(g)    Mr Matthews withheld access to the store room and refused to give her a key even though other members were given keys, which at times caused difficulty for the applicant.
Further, I accept that, on the balance of probabilities:
(a)    the applicant’s complaints about Mr Matthews were often ignored or dismissed without a proper investigation;
(b)    no action was taken to stop Mr Matthews’ ongoing bullying and harassment of the applicant;
(c)    the applicant was required to attend meetings where Mr Matthews was present;
(d)    the applicant was not permitted to have a support present at certain meetings;
(e)    the opinions of the applicant’s general practitioner and psychologist were ignored;
(f)    meetings were conducted in a manner which was intimidating to the applicant, and
(g)    the applicant was not afforded natural justice or procedural fairness.
On that basis, I accept that there were real events in the workplace which the applicant perceived as creating a hostile, intimidating and offensive working environment.

The medical evidence in relation to injury

I have set out the medical evidence in relation to injury in some detail above.
Dr Samuell, the IME qualified by the respondent, stated that he found the applicant difficult to interview and he was not certain of her narrative of the history. He found it difficult to reconcile the applicant’s overtly impaired presentation with her not having been treated more intensively. Dr Samuell stated that he could not see any clear causal nexus between the alleged injury and the applicant’s presentation. Dr Samuell questioned the validity of the applicant’s presentation and could not exclude the possibility of exaggeration. Dr Samuell stated that if it was accepted that the applicant had psychological injury, he diagnosed a severe melancholic depression with features of psychosis or the applicant was malingering. Dr Samuell stated that if the applicant’s narrative was taken at face value the applicant is highly disable and he did not disagree with Dr Kujic’s assessment of WPI.
Dr Roberts, clinical psychologist qualified by the respondent, similarly questioned the applicant’s credibility and stated that there were indicators of exaggeration and embellishment of psychopathology. Dr Roberts also found it difficult to reconcile the applicant’s presentation with the alleged injury. Dr Roberts found it difficult to make a firm diagnosis and determination of causation because of inconsistency in the applicant’s assessment results and the applicant’s invalid and exaggerated responding. However,
Dr Roberts did not disagree with Dr Kujic’s diagnosis of persistent depressive disorder with persistent depressive episode and his assessment of 28% WPI. Based on a review of various reports and clinical records, Dr Roberts diagnosed a possible pre-existing personality disorder with paranoid traits (or at least, entrenched personality characteristics including paranoid traits), which Dr Roberts opined was the main cause of the applicant’s pre-existing psychological condition. Dr Roberts stated that because of the applicant’s unreliable presentation and test scores, Dr Roberts was unable to accurately assess whether the applicant’s employment was an element of aggravation or deterioration in her pre-existing psychological condition. On that basis, Dr Roberts opined that the applicant’s employment with the respondent was not a substantial nor the main contributing factor to a psychological condition.
In contrast, Dr Kujic, the IME qualified by the applicant, diagnosed persistent depressive disorder with persistent major depressive episode. Dr Kujic recorded a history that the applicant was exposed to a range of events at work which she perceived as bullying, which caused anxiety, depression and related symptoms. Dr Kujic considered that the applicant was totally and permanently incapacitated for pre-injury employment and he assessed 28% WPI.
I note that Dr Kujic’s opinion is largely consistent with the treating medical evidence.
In 2013, the applicant’s initial treating psychologist, Ms Ling, diagnosed the applicant with adjustment disorder with mixed anxiety and depressed mood due to persisting workplace bullying.
In 2014, Dr Zhang, forensic psychiatrist, diagnosed major depression in the context of alleged workplace bullying and stress from the process of seeking justice.
In 2014, Dr Protulipac, clinical and forensic psychologist, diagnosed adjustment disorder with mixed anxiety and depression with a reported long history of bullying and harassment in the workplace. In 2015, Dr Protulipac diagnosed recurrent major depressive disorder without psychotic features which he opined was directly caused by psychological injuries the applicant sustained in her employment. Dr Protulipac detailed a lengthy history of reported bullying, harassment and mistreatment of the applicant in the workplace. In 2020,
Dr Protulipac maintained the same diagnosis and assessed 24% WPI in respect of psychological injury.
The respondent submits that all of the treating and qualified medical evidence relied upon by the applicant is based on inaccurate history of no non-work related psychological injury and is inadmissible and should be given no weight. The respondent submits that the views of
Dr Kujic should be rejected on the basis of an alleged failure to comment on “the significant pre-existing condition” and “previous workplace issues prior to working for the Respondent”. In this regard, the respondent relies upon the decision of Paric v John Holland Constructions Pty Ltd at [846]. The respondent submits that Dr Roberts’ reports are the only qualified opinion that refers to Ms Ling’s report dated 8 January 2013 and that Dr Roberts’ opinion should be preferred to all other evidence.
I do not accept the respondent’s submissions in that regard because, as I set out above, I do not accept that there was a pre-existing non-work related psychological history. Further, in his latest report Dr Kujic expressly considered Dr Roberts’ opinion, which included a detailed medical history. However, Dr Kujic nevertheless maintained his previous opinion and explained his reasons for expressly rejecting Dr Roberts opinion.
Dr Kujic expressly rejected Dr Roberts’ opinion that the applicant had a possible personality disorder with paranoid traits. Dr Kujic noted that Dr Roberts’ opinion was not definite and was contradictory. Dr Kujic stated that there was insufficient information to form a valid diagnostic opinion for personality disorder. Dr Kujic stated that Dr Roberts did not provide any diagnosis which reflected the applicant’s current psychological suffering. Dr Kujic noted that the applicant’s treating mental health professionals had longitudinal insight into the applicant’s condition and they were clear and definite in establishing a diagnosis of major depressive disorder and did not establish a diagnosis of a personality disorder.
I find the opinion of Dr Kujic to be particular persuasive as it provides a considered and rational analysis of the applicant’s presentation and causation.
Further, Dr Kujic’s opinion is consistent with the applicant’s treating medical professionals, in particular Dr Protulipac. I note that the applicant was unable to obtain more recent reports from Dr Protulipac because he retired from practice and from Ms Ling because she had not been involved with the applicant for some 10 years. In any event however, I am satisfied that Dr Protulipac’s opinion is based on a sufficiently sound factual basis to validate his expressed opinions as Dr Protulipac treated the applicant in a clinical setting over an extended period of time.
Considering the evidence as a whole, I consider that the opinion of Dr Kujic and the applicant’s treating medical professionals provides a logical and most likely explanation for the applicant’s presentation.
Having regard to the evidence as a whole and based on a commonsense evaluation of the causal chain, I find that the applicant sustained a primary psychological injury pursuant to ss 11A(3) and 4(b)(i) of the 1987 Act, with deemed date of injury of 4 March 2014, arising out of and in the course of her employment and, further, the applicant’s employment was the main contributing factor to contracting the disease.

Section 11A
Wholly or predominantly caused

The respondent relies on the ground of “discipline” in its defence pursuant to s 11A(1) of the 1987 Act. In order to establish its defence pursuant to s 11A(1), the respondent must firstly establish that the injury was wholly or predominantly caused by the respondent’s actions with respect to discipline.
In his various reports, and particularly in his report dated 18 November 2015,[232] the applicant’s treating psychologist, Dr Protulipac set out in some detail the applicant’s work history which caused the applicant’s psychological injury. This is consistent with the evidence of Ms Ling, [233] Dr Zhang, [234] and Dr Stevans.[235]
[232] Amended ARD, page 246.
[233] Amended ARD, page 313.
[234] Amended ARD, page 311.
[235] Amended ARD, page 218.
The applicant’s subject work injury was first recorded on 13 May 2013 when the applicant attended on her general practitioner, Dr Ye, for “work stress” and Dr Ye referred the applicant to see Ms Ling, psychologist.
In a report dated 17 May 2013,[236] Ms Ling reported that the applicant presented on
[236] Amended ARD, page 313.
17 May 2013 in distress and reported that she could not cope any more with issues of workplace bullying and the applicant reported ongoing verbal abuse, discrimination, intimidation and racism by her manager, David Matthews since 2011. Ms Ling stated that the applicant reported distress since receiving a letter requiring her to attend an interview regarding a change to her work schedule to a rotating shift and that no other staff has a rotating shift. Ms Ling stated that the applicant reported that her manager was trying to push her to resign and that she did not feel safe at work and required a support person to attend the interview, but she had not found a support person and she faced pressure to attend the interview on 13 May 2013 with a support person found by the respondent. Ms Ling assessed that the applicant had extremely severe scores of depression, anxiety and stress. Ms Ling stated a diagnosis of adjustment disorder with mixed anxiety and depressed mood due to the stressor of ongoing workplace bullying. Ms Ling recommended that the applicant have a support person of her choice at the interview and stated that in the applicant’s current mental state, her symptoms would likely exacerbate if she had the interview.
The conduct of the respondent which Ms Ling described as causative of the applicant’s psychological injury are not apparently actions taken by or on behalf of the respondent with respect to discipline.
Further, I am not satisfied that the following conduct was with respect to discipline:
(a)    Mr Matthews conducted meetings with the applicant in an aggressive and intimating tone;
(b)    Mr Matthews made fun of the applicant’s accent and pretended he could not understand English;
(c)    Mr Matthews refused the applicant’s annual leave in 2011 despite her having given significant notice;
(d)    Mr Matthews required the applicant to work flexible hours and scheduled her for shifts that she was unable to work;
(e)    Mr Matthews required the applicant to provide a medical certificate for her failure to attend compulsory fire training and refused the applicant’s reasonable attempts to provide alternative evidence for her non-attendance;
(f)    Mr Matthews withheld access to the store room and refused to give her a key even though other members were given keys, which at times caused difficulty for the applicant;
(g)    the applicant’s complaints about Mr Matthews were often ignored or dismissed without a proper investigation, and
(h)    no action was taken to stop Mr Matthews’ ongoing bullying and harassment of the applicant.
Having regard to the evidence as a whole, I am not satisfied that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline.
On that basis, the defence pursuant to s 11A(1) of the 1987 Act is not established.

Reasonableness

In any event, I do not consider that certain of the respondent’s actions which were causative of the applicant’s psychological injury were reasonable. For example: Mr Matthews conducted meetings with the applicant in an aggressive and intimating tone; Mr Matthews made fun of the applicant’s accent and pretended he could not understand English; the applicant’s complaints about Mr Matthews were often ignored or dismissed without a proper investigation; and no action was taken to stop Mr Matthews’ ongoing bullying and harassment of the applicant. I consider that the respondent’s attitude and conduct towards the applicant is typified by an email sent from Ms McDougall to Mr Hackenberg on
31 May 2013,[237] which demonstrated a cynical and hostile attitude to the applicant’s grievances being reasonable and demonstrated no effort to impartially deal with the applicant’s ongoing complaints in accordance with the respondent’s Code of Conduct.

Compensation for permanent impairment
[237] Reply, page 27.

There is a dispute in relation to assessment of WPI. Given my findings above, it is appropriate to refer the matter to the President for referral to a Medical Assessor for determination of WPI.

Weekly compensation

Having regard to the statements of Deputy President Roche in Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335,[238] I consider that there is merit to the respondent’s submission that determination of the applicant’s entitlement to weekly compensation should be delayed until the applicant’s WPI is assessed by a Medical Assessor.
[238] I note that the decision was overturned on appeal but not on this procedural point.
Accordingly, I will direct that the matter is to be relisted for a further conference to address the issue of the applicant’s entitlement to weekly compensation after the issue of a Medical Assessment Certificate.

Compensation for medical and related expenses

The applicant’s claims the total sum of $29,947.85 in respect of past medical and related expenses:
(a)    Dr Protulipac - $23,618;
(b)    Medicare - $4,391;
(c)    Dr Verma - $78;
(d)    Miranda Medical Centre - $250;
(e)    Family Health Clinic Rockdale - $250;
(f)    Dr Zhang - $250, and
(g)    Chemist - $610.65.
The applicant’s evidence includes a Medicare notice of post benefits or notice of charge including a schedule of medical benefits and care services[239] and relevant tax invoices.
[239] Amended ARD, pages 209 and 211.
The respondent has not made any submissions which specifically addresses the expenses claimed.
Considering the evidence as a whole and my findings above, and having regard to the matters set out in Diab v NRMA Ltd,[240] I am satisfied and find on the balance of probabilities that the claimed medical and related treatment was reasonably necessary as a result of the injury received by the applicant.
[240] [2014] NSWWCCPD 72.
On that basis, it is appropriate to order that the respondent pays the applicant compensation in respect of those expenses pursuant to s 60 of the 1987 Act.

SUMMARY

The applicant sustained a primary psychological injury pursuant to ss 11A(3) and 4(b)(i) of the 1987 Act, with deemed date of injury of 4 March 2014, arising out of and in the course of her employment and, further, the applicant’s employment was the main contributing factor to contracting the disease.
A defence pursuant to s 11A(1) of the 1987 Act is not established.
The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:
Date of injury:      4 March 2014 (deemed)
Body parts:          Psychological
Method:               Whole person impairment
The materials to be referred to the Medical Assessor are to include:
(a)    ARD and attachments;
(b)    Amended ARD and attachments;
(c)    Reply to ARD and attachments;
(d)    Applicant’s Wages Schedule dated 2 December 2022;
(e)    respondent’s AALD dated 7 February 2023 and attachments;
(f)    respondent’s SOD listing those documents from the respondent’s AALD dated 7 February 2020 which are relied on by the respondent;
(g)    applicant’s AALD dated 14 August 2023 and attachments;
(h)    respondent’s AALD dated 15 September 2023 and attachments, including Respondent’s Wages Schedule dated 14 September 2023, and
(i)    applicant’s AALD dated 5 October 2023 and attachments.
The respondent to pay the claimed medical and related expenses pursuant to s 60 of the 1987 Act, upon production of accounts, receipts or Medicare Notice of Charge.
After the issue of a Medical Assessment Certificate, the matter is to be relisted for a further conference before me to address the issue of the applicant’s entitlement to weekly compensation and quantification of any weekly compensation.

[2023] NSWPIC 583

3 November 2023