Younan v Inner West Council - [2021] NSWPICPD 16

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Younan v Inner West Council [2021] NSWPICPD 16
APPELLANT:	Daisy Younan
RESPONDENT:	Inner West Council
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-2579/20
MEMBER:	Mr B Batchelor
DATE OF MEMBER’S DECISION:	29 September 2020
DATE OF APPEAL DECISION:	7 June 2021
CATCHWORDS:	WORKERS COMPENSATION - Section 11A(1) of the 1987 Act; application of Northern New South Wales Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 – ‘reasonable action’
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr W Carney, counsel
PK Simpson and Co
Respondent:
Mr F Doak, counsel
Bartier Perry Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination of 29 September 2020 is confirmed.

INTRODUCTION

The appellant worker in this appeal seeks to overturn a decision of an Arbitrator finding that psychological injury sustained by her in the course of her employment over the period from 2008 until 21 June 2018 was wholly or predominantly caused by reasonable action taken by the respondent with respect to performance appraisal, transfer and discipline of her.
An injury was found to have been caused during the period referred to in the preceding paragraph. Whether, and if so how and when the appellant had suffered injury was in issue before the Arbitrator and the appellant succeeded on that part of her case.[1]
[1] Younan v Inner West Council [2020] NSWWCC 343 (Reasons), [92].
The other issue, upon which the respondent carried the onus, was whether, as the respondent contended, the events upon which the appellant relied as having caused her injury were not, as she alleged, bullying, harassment etc but rather were reasonable action on the part of the respondent with respect to performance appraisal, transfer and discipline of the appellant. The Arbitrator held that the respondent had discharged its onus. This was a finding that s 11A the Workers Compensation Act 1987 (the 1987 Act) was applicable.
There is no appeal by the respondent on the first issue. The only appeal is by the appellant on the second issue.
The appellant’s claim for weekly payments is a continuing one commencing on 22 June 2018. She also claims a lump sum in respect of 15% whole person impairment. There is also a claim for past medical expenses approaching $9,500.00. The appellant’s claim is therefore a substantial one.

BACKGROUND

The respondent is a local government authority which came into existence in May 2016 as a result of the merger of the Ashfield, Leichhardt and Marrickville Councils. Presumably it succeeded to the rights and liabilities of those Councils.
The appellant commenced relevant employment with the former Ashfield Council in January 2005 as a temporary Planning and Building Officer and was made permanent in October 2005. Upon the merger she transferred to the respondent. She became a Development Assessment Officer (Assessment Planner) on a permanent basis thereafter.
She ceased work in the latter part of June 2018.[2]
[2] Reasons, [1].
It was the appellant’s allegation, made formally by a workers compensation claim form on 24 August 2018, that she suffered from depression, loss of confidence and was incapacitated for work “… due to years of abuse, discrimination, humiliation & harassment by previous and current superiors …”[3]
[3] Application to Resolve a Dispute (ARD), p 1,068.
The respondent denied the claim and following the necessary procedures before the Workers Compensation Commission, the claim came on for hearing before the then Arbitrator, [4] Mr Batchelor, initially on 29 July 2020. The hearing could not be concluded on that day and resumed part-heard on 9 September 2020. The Arbitrator’s comprehensive reasons for his decision were delivered on 29 September 2020.
[4] The Personal Injury Commission Act 2020 amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998. Relevantly, the “Arbitrators” of the former Workers Compensation Commission became “non-presidential members” of the Personal Injury Commission, so that the decision-maker involved in these proceedings became a “member” of the Personal Injury Commission. However, as at the time of the orders made in the proceedings, the decision maker bore the title of “Arbitrator”, in this decision he will be referred to by his former title of “Arbitrator.”
The appellant’s case was that she had no difficulty at work between January 2005 and 2008, but that in 2008, with the advent of a new immediate superior, Mr Bas, her working environment changed and she was subjected to bullying, discrimination etc. There seems little doubt that the working relationship between the two became difficult and the appellant complained in August 2011 about Mr Bas. She was given a “first warning” about unsatisfactory performance of her duties by him in November 2011.[5] The appellant lodged a grievance about that in February 2012 which was responded to in writing by Mr Bas in April of that year.
[5] ARD, p 79.
Things continued in this vein with further complaints made in respect Mr Bas’ conduct in 2015/2016 and warnings in respect of the appellant’s performance in 2016 and in 2017 the appellant had a couple of months off work by reason of psychological problems. Upon resumption she was transferred to the Leichhardt Service Centre of the respondent.
There her immediate superior was a Mrs Cowie during the period from May to December 2017. Thereafter Mr Betts became her supervisor, and the appellant’s case was that he too in effect behaved badly towards her, acting in an abusive and condescending manner which reminded her of Mr Bas. There was alleged adverse impact on her psychological condition, in particular her memory, concentration and performance of her duties.
However Mr Betts’s view of things at Leichhardt after he became the appellant’s superior was that her performance was sub-standard and this led to a regime of weekly meetings with her and the issuing of warnings to her. A final warning was given dated 21 June 2018[6] whereafter the appellant went on sick leave.
[6] ARD, p1,080.
It will be necessary to return to the brief summary of the factual background to the appellant’s claim when dealing with the evidence and submissions of the parties below. However what appears above should be read in conjunction with what follows in dealing with those matters.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) have been met.
There is no dispute that the threshold requirements of ss 352(3) and (4) of the 1998 Act have been met.

ON THE PAPERS

The parties are in agreement that this appeal may be dealt with “on the papers”. Having read the material before the Arbitrator and the additional material before me I am satisfied that that is appropriate.

FRESH EVIDENCE

Neither party sought to lead fresh evidence upon the appeal.

ISSUES IN DISPUTE

As abovementioned the issue in this appeal is whether the Arbitrator erred in holding that the respondent had discharged its onus of proving that the appellant’s psychological injury found by him was caused by reasonable action on the part of the respondent with respect to performance appraisal, transfer and discipline of her. Put another way, was the Arbitrator correct to hold that the respondent had made good the application of s 11A of the 1987 Act.
The appellant carries the onus of showing error in the Arbitrator’s decision, which clearly is a factual one. Consequently the test is whether the evidence justifies his conclusion. That this is the test to be applied to the Arbitrator’s reasons emerges from a number of authorities, including Raulston v Toll Pty Limited,[7] Whiteley Muir & Zwanenberg Ltd v Kerr,[8] and Zuvela v Cosmarnan Concrete Pty Limited.[9]
[7] [2011] NSWWCCPD 25; 10 DDCR 156.
[8] (1966) 39 ALJR 505, especially per Barwick CJ at 506.
[9] [1996] HCA 140; 140 ALR 227; 71 ALJR 29.

RELEVANT STATUTORY PROVISION

The relevant statutory provision is s 11A(1) of the 1987 Act which provides as follows:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
As abovementioned in para [3], the respondent carried the onus of establishing that this provision applied.

EVIDENCE

In this part of these reasons I will not confine myself to a short summary of the evidence but will express some opinions concerning it as well. Those opinions should be read in conjunction with other views set out herein going to the disposition of this appeal.
There was a substantial body of evidence before the Arbitrator. Notably there was a lengthy statement by the appellant, the text of which occupied 64 pages, and which together with its attachments extended to 1,064 pages. Her case included other documents, including several medical reports from an occupational medicine and injury management consultant and three psychiatrists brought into the matter on a medico-legal basis:
Dr Papatheodorakis (report dated 12 April 2017 obtained by the respondent), Dr Wotton (report 21 October 2019 obtained by the solicitors for the respondent), Dr Murphy (report 26 September 2018 obtained by the respondent’s insurer), and Dr Clark (report dated 13 March 2019 obtained by the solicitors for the appellant). Also part of the appellant’s case before the Arbitrator was a report by a psychologist, Dr Girgis, dated 31 May 2019.
I do not think it is necessary to rehearse the evidence of the psychiatrists, which I regard as the most important medical evidence, in any detail. I think it is sufficient to say that the histories given to them by the appellant make it clear that her perception of events at work was that she was being subjected to bullying/harassment etc, and further that her perception was at least at times of her being the object of deliberate behaviour of her superiors in the nature of a conspiracy against her.
The opinion of Dr Papatheodorakis at the foot of page 2 of his abovementioned report was that when he saw the appellant her condition was consistent with an Adjustment Disorder with Depressed and Anxious Mood which could have resulted from “… a continuous stressor such as perceived (mis) treatment at the workplace …”[10]
[10] ARD, p 85.
Dr Wotton in his abovementioned report of 21 October 2019 diagnosed a Major Depressive Episode (Chronic and Stabilised) – p 12 of his report – and like Dr Papatheodorakis, he attributed her problems to her perception of events at work, in particular at pp 14 and 15 of his report.[11]
[11] ARD, pp 1,102–1,105.
Dr Murphy in his abovementioned report of 26 September 2018 diagnosed, as I read him, chiefly a generalised anxiety disorder but also a depressive disorder “single episode moderate” – pp 6 and 7 of his report – and took the view that the cause of the problems was the appellant’s “fixed belief that she has been bullied in her work place”: see p 8.[12] I take this to be reference to her perception of events in different words but to the same effect as the opinion on causation of Drs Papatheodorakis and Wotton.
[12] ARD, pp 1,122–1,124.
Dr Clark in his abovementioned report of 13 March 2019 diagnosed a Persistent Depressive Disorder – p 4 of his report as stated and elaborated upon.[13] In answer to a specific question as to causation (question 7 on p 7 of his report) he said: “Her employment is the substantial contributing factor to her psychiatric injury. There is no evidence of other cause”.[14] This appears to be an opinion based upon the history recorded on p 2 of his report under the heading “The Case”.[15] What there appears is an account of the appellant’s assertion as to the nature of events at her workplace. I would understand it to be an account of her perception of events without an acknowledgement of that on the part of Dr Clark. If my understanding is correct, Dr Clark’s view aligns itself with the opinions of the other psychiatrists to the extent that the appellant’s problems were generated by her perception of events in her workplace.[16]
[13] ARD, p 1,130.
[14] ARD, p 1,133.
[15] ARD, pp 1,128 -1,129.
[16] ARD, pp 1,127–1,136.
At an essentially factual level, also annexed to the appellant’s statement was the investigator’s report obtained by the respondent’s insurer from Worksite Investigations dated 11 September 2018.[17] This was a comprehensive report based in large degree upon the results of interviews with a number of the appellant’s superiors who are listed under the heading “Persons Interviewed” on pp 2 and 3 of the report.[18] Each of these provided a signed statement, with the exception of Ms Josey, who was on leave and not interviewed. Statements were appended to the report together with many other documents including relevant emails, copies of written warnings to the appellant and her grievances, detailed hand written notes, described as diary notes, made by Mr Betts between 6 December 2017 and 26 June 2018 recording his interaction with the appellant, and letters to the appellant from a number of her superiors including Mr Betts.
[17] ARD, p 893.
[18] ARD, pp 894 – 895.
The appellant did not put into evidence all of this material, but the respondent did so, appending it, in particular the statements taken by the investigators, to its Reply to the appellant’s Application to Resolve Dispute.[19]
[19] See the index to Part 6 – Supporting Documentation, replicating the Table of Contents to the respondent’s Reply.
The effect of the respondent’s evidence, which I do not think it is necessary to rehearse or go to in any detail, can I think fairly be stated as being that the appellant displayed sub-standard performance at work or difficulty in coping to an acceptable standard, and came under a regime of monitoring which included the giving of written warnings, calling upon her to attend meetings to discuss her performance, and ultimately culminated in the giving of a final warning. The regime which was instituted and continued up until the time the appellant went off work was on the respondent’s case necessary and justified and involved no behaviour which could be said to involve bullying, harassment etc. There was no conspiracy to harm or get rid of the appellant. There was a genuine desire to bring about an improvement in her performance so that it achieved an acceptable standard.
Particular mention should be made of one aspect of the evidence, namely that the appellant said in her abovementioned statement, para [23] under the heading “Religious Discrimination”, that a few weeks after Mr Bas became her supervisor, he asked her about a small cross tattooed on her right wrist. She told him that it was an Egyptian Coptic Orthodox cross. He went on to ask whether her husband had one and the appellant said that he did. Mr Bas went further and asked whether the appellant’s two sons had them. She replied in the negative and he said “do not force them”. She said that she was not going to. She went on to say that she found this “too intrusive” and that “the shocking instruction not to force my sons, who were young children at the time, to have a cross each to be discriminatory and disturbing …”.[20] Of the psychiatrists who saw the appellant, Dr Wotton received this history (p 2 of his report) but his opinion on the causation of the appellant’s problem seems to attribute no particular significance to it. None of the other psychiatrists record the history, and it is noteworthy that Dr Murphy in his report of 26 September 2018 recorded a history from the appellant in which she made no mention of her interaction with Mr Bas, nominating her interaction with Mr Betts as the starting point for her stress.
[20] ARD, p 7.
Although strictly a feature of the way the appellant’s case was put to the Arbitrator in closing address, but in my view a matter which can properly be seen as relevant to the Arbitrator’s reasons, is that the idea of a conspiracy or deliberate conduct was not seriously pressed.

THE ARBITRATOR’S REASONS

In dealing with the Arbitrator’s reasons I shall express some views, as I did in relation to giving a short summary of the evidence, and what I say here should likewise be read in as going to the disposition of the appeal: see paras [15] and [21], supra.
The Arbitrator articulated his reasons under the heading “Findings and Reasons” in paras [65]–[134] of his written reasons, a passage thereof occupying 13 pages.
It is not necessary to say more in respect of the first section of this passage, sub headed “Injury”, in which the Arbitrator found in the appellant’s favour, than that he correctly noted, by reference to authority, that a misperception of actual events can provide a basis for a finding of injury i.e. can sustain finding a fact to that effect which is sound in law.
However the Arbitrator went on under the sub heading “Section 11A Defence”, from paras [95] and following, referencing Sackville AJA in Heggie[21] to correctly deal with the respondent’s defence, , upon the basis that whatever may have been the appellant’s perception, in determining whether the respondent had discharged its onus, it was necessary to find what the reality of events in the workplace was.
[21] Northern NSW Local Health Network v Heggie [2013] NSWCA 255.
I should say immediately that in my opinion the Arbitrator’s discharge of that task is both thorough and betrays no error. He painstakingly, chronologically, and fairly, summarises the evidence as to what happened. In my opinion he correctly characterises the events involving the appellant in her workplace as satisfying the requirements of s 11A. Even if I am wrong in that view, that is to say if there were another interpretation of some or all of the events available which differs from that arrived at by the Arbitrator, I would be firmly of the view that the evidence makes it clear that his findings were at least open to him. In these circumstances, when it is kept in mind that in order to succeed upon this appeal the appellant must show error of, relevantly, law or fact (there being no question of the exercise of a discretion), in my view error is not demonstrated. I will return to this in discussing the submissions of the parties upon this appeal.
However I think it is desirable to make specific comment about the episode referred to above concerning the Coptic cross tattooed on the appellant’s right wrist which is described in
para [23] of her statement.
The Arbitrator noted this at para [41] of his reasons, correctly recording that the incident was not denied or indeed referred to by Mr Bas in his statement.
I do not think it could be suggested that this incident was remotely relevant to s 11A, and whilst it may have been understandable and inoffensive for Mr Bas to make an enquiry about the tattoo on the appellant’s wrist which was confined to it and her alone, to go further and enquire about her husband and about her sons was in my opinion entirely inappropriate and capable of causing offence and upset.
But as abovementioned, only one of the psychiatrists involved in the case had a history of it and I do not think on any fair reading of the reports of all four psychiatrists that this incident can be regarded as a material causal factor.

SUBMISSIONS ON APPEAL

The appellant

The appellant puts two grounds of appeal as follows:
1. The Arbitrator erred in finding that s 11A of the 1987 Act was applicable in the circumstances.
2. The Arbitrator erred in finding that the applicant’s injury was wholly or predominantly caused by the reasonable actions of the respondent pursuant to
s 11A of the 1987 Act.

These grounds coalesce into one proposition, viz. the Arbitrator erred in holding that the respondent had discharged his onus of showing that s 11A applied to defeat the appellant’s claim.
The appellant’s written submissions address themselves to each of the above grounds. I will deal with each in turn.
In paras [1] and [2] concerning Ground 1, it is put that in para [92] of his reasons the Arbitrator found that a particular incident occurring in March 2017 caused injury, and clearly discounted any other incident as being causal. Reference is made to the Arbitrator’s mention of the absence of contemporaneous medical evidence that the appellant suffered psychological injury before March 2017. It is put that in this para of his reasons the Arbitrator is finding psychological injury “… caused by a specific incident of bullying in March 2017 as documented by Dr Papatheodorakis”. In paras [3] and [4] of the submissions on this ground it is put that, in effect, there is an inconsistency between the Arbitrator’s reasoning in paras [93] and [135]. It is submitted that in paras [92] and [93] the Arbitrator was holding that the injury was caused by one incident whereas para [135] articulates the conclusion set out at the beginning of these reasons (para [2]).
Paragraph [5] of the submissions on this ground proceeds upon the basis that the psychological injury was caused “… predominately by one incident (March 2017)”, and puts that if that be so, then “… clearly the pre March 2017 issues … were not causative of injury, but did show a deteriorating work relationship. In no way could any post March 2017 injury be relevant on the finding of injury made.”
Paragraph [6] of the submissions then winds up on the strength of the earlier paras, saying that “… on the finding of injury that [sic] s 11A could not be applicable to this matter”.
Then in relation to Ground 2, the appellant submitted in para [1] of her written submissions that if one accepted the findings made by the Arbitrator in paras [92] and [93], and accepted that the pre-March 2017 conduct of Mr Bas was part of the chain of conduct that caused the injury (which the appellant does not accept), it was necessary to examine the Arbitrator’s findings thereon.
It is then put in para [4] that the Arbitrator’s findings in paras [126]–[129] “… are the basis for the s 11A defence”. It is put that they deal only with performance issues, and that the finding in para [128] is erroneous and calls into question the reasonableness of the respondent’s conduct.
In para [5] of the written submissions it is put first that it is important to note that the deterioration in the relationship between Mr Bas and the appellant began when he made the comments about the Coptic cross tattoo. It seems to be submitted that this was not adequately dealt with by the Arbitrator in para [81]. Secondly, it is put that the recording of the appellant’s work statistics “… which form the basis of the warning letters are [sic] dealt with in paragraph 19 of the applicant’s statement …”. This I take to be a submission that this material was wrongly or inappropriately used by the respondent. Thirdly, it is submitted that the March 2017 incident was “the triggering event for the psychological injury”.
In para [6] of the written submissions the appellant goes on to put that the warning letters were not the whole or predominant reason for the injury, and that what I take to be the causation of the injury started before them, but I confess that after that proposition I have difficulty understanding what is being advanced by the appellant in this ground. Doing the best I can I read it as putting that the respondent’s handling of the appellant’s written grievance and her work statistics were more important in her mind and to a large extent generated her difficulties with Mr Bas, this being something that is demonstrated by the fact that after March 2017 she sought help.
Para [7] of the written submissions puts the proposition that the s 11A defence has not been made out, and paras [8] and [9] put that events after March 2017 are irrelevant and/or go only to capacity for work.

The respondent

On 10 December 2020 the respondent filed written submissions in response to the appellant’s submissions.
In relation to Ground 1, in para [11], it is put that the appellant’s submission that her psychological injury was caused by the single incident in March 2017 is erroneous, and that on a correct reading of the Arbitrator’s reasons he found that the incident in March 2017 was the culmination of a series of events that had a cumulative effect. It is put that this was consistent with the way the appellant’s case was pleaded i.e. as a cumulative injury with a deemed date of injury.
The way in which the appellant’s case was pleaded is again adverted to by the respondent in para [13], and in para [14] it is put that in respect of the period between the appellant’s return to work after a couple of months or so off in 2017 and her cessation of work in June 2018, the Arbitrator was correct that Mr Betts’s relevant interaction with her was reasonable action with respect to discipline for the purposes of s 11A.
Then in relation to Ground 2, in para [16] the respondent gives its interpretation of the appellant’s second ground of appeal which I think is substantially correct. It is submitted that the appellant exposes two questions, first whether actions of the respondent with respect to discipline between 2008 and March 2017 caused the appellant’s psychological injury (the causation issue) and, secondly, whether those actions were reasonable (the reasonableness issue).
On the causation issue, I do not think it is necessary to deal closely with paras [17]–[21] of the respondent’s submissions. It is sufficient to say that they correctly refer to a number of relevant authorities, and that looking at the opinion of Dr Papatheodorakis shows that, so far as his opinion is concerned, what happened in March 2017 was preceded by earlier factors. It is also pointed out that the proposition that the warning letters from Mr Bas caused psychological injury cannot be sustained for the reasons given in para [18] of the submission.
I accept the submission put by the respondent in para [21], pointing to the similarity between this case and the authorities there noted.[22] The respondent’s submission in this paragraph reflects what I said above at para [3].
[22] Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339 and Mark Forwood v Mt Arthur Coal [2018] NSWDC 464, [131] per Neilson J.
On the reasonableness issue, it is apparent from para [22] of the respondent’s submissions that their author shares my difficulty in arriving at a clear view of the appellant’s argument. Again, I think the submissions of the respondent in paras [22]–[24] on this issue are correct.

The appellant in reply

The appellant put on written submissions in reply to the respondent’s abovementioned submissions. Her submissions in reply are dated 21 January 2021.
In relation to Ground 1 of the Grounds of Appeal, I think it is, with respect, fair to say that they are a repetition of the original submissions, coming down to the proposition that events after 17 March 2017 cannot be relevant, with in para [4] a specific response to para [14] of the respondent’s submissions. This is to the effect that what happened after 17 March 2017 cannot amount to an aggravation of the injury of 17 March 2017.
For the reasons put by the respondent in its submissions, which I accept, the correct analysis is that the Arbitrator found injury between 2008 and June 2018. That finding must include a finding of injury to some extent after 17 March 2017 which in turn involves the concept of aggravation thereafter.
In relation to Ground 2, the appellant puts in para [5] of her submissions in reply that the warning letters were not given sufficient significance or importance. Once more I think the appellant’s submissions in relation to them are correct.
The appellant then goes on in her submissions in reply to deal in paras [6]–[9] with the reasonableness issue identified by the respondent. What is put in paras [6] and [7] is essentially a repetition of the earlier submissions and in my opinion does not gainsay the respondent’s submissions on this issue.
Then in para [8] the appellant, specifically in reply to para [24] of the respondent’s submissions, in reliance on the judgment of Spigelman CJ in Department of Education & Training v Sinclair,[23] submits that the Arbitrator failed to include all Mr Bas’s conduct from 2008 (as I would understand it in his consideration of Mr Bas’s behaviour). It was submitted that this “… means that a large part of the factual background to the actions that led to injury on 17 March 2017 were not considered … namely the early conduct by Mr Bas in relation to the appellant’s religion and the other matters that occurred before 2011”.
[23] [2005] NSWCA 465.
I cannot accept this submission. In my opinion the Arbitrator did consider the totality of the appellant’s case. But in any event the appellant’s submission here is predicated upon there being “injury on 17 March 2017”, and in my opinion that is not the Arbitrator’s finding for the reasons already given.
Finally, as to the “early conduct … in relation to the appellant’s religion …”, the lack of significance of the conversation about the tattoo of the cross on the appellant’s right wrist has been dealt with above. What “the other matters that occurred before 2011” are is not explained by the appellant, but in any event I am of the view that the Arbitrator squarely dealt with the appellant’s case as pleaded and advanced in evidence, covering the lengthy period from the beginning of her interaction with Mr Bas to June 2018. Thus the relevant period “before 2011” is dealt with by the Arbitrator.

CONSIDERATION AND CONCLUSION

What appears under this heading in these reasons should be read in conjunction with the comments I have made above under the headings “Evidence” and “Submissions on Appeal” that are relevant to my disposition of this appeal.
Both before the Arbitrator and on appeal the appellant placed reliance on the questioning of her by Mr Bas about the tattoo of a cross on her right wrist and the continuation of that questioning in relation to her husband and her sons. I have dealt with this above. However it is worth repeating that upon the basis that it was not disputed by Mr Bas and can be taken to have happened, it could by no stretch of the imagination be regarded as coming within
s 11A. The continuing of the questioning or the conversation beyond the initial enquiry was to my mind entirely inappropriate. It could well have caused distress. But on my view of the appellant’s case it was not supportable as the real cause of her psychological injury, either in itself or in combination with other events which would not without it have caused the injury. On the contrary, I think the thrust of her case, perhaps prudently influenced by the lack of importance of this incident in the eyes of the psychiatrists whose reports were relied upon, depended upon other conduct, in the main of Messrs Bas and Betts.
In my opinion the findings of fact made by the Arbitrator as to the characterisation of that conduct and of the associated documents for the purposes of s 11A was correct. For the sake of clarity, by “the associated documents” I mean the warning notices and letters issued to the appellant, and in relation to the appellant’s written grievance and her complaints about her treatment, the conduct of the respondent viewed as a corporation extends to the investigation and findings that there was no substance in the appellant’s complaints. (As to the handwritten contemporaneous material from Mr Betts, it is to be seen as in a different category from the evidence just referred to, in that there is no indication that at any relevant time the appellant had access to or was affected by his contemporaneous notes. Nonetheless they in my opinion had the considerable importance the Arbitrator assigned to them: they were entirely consistent with the respondent’s case and supportive of it.)
For these reasons and the others earlier herein, the appeal should be dismissed, and the determination of the Arbitrator confirmed.

ORDER

The Arbitrator’s Certificate of Determination of 29 September 2020 is confirmed.

Larry King SC
ACTING DEPUTY PRESIDENT

7 June 2021