CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Savage v ECO Septic Pty Ltd [2021] NSWPIC 515 	
		
APPLICANT:	Kenneth Savage	
		
RESPONDENT:	ECO Septic Pty Ltd	
		
Member:	Glenn Capel	
		
DATE OF DECISION:	9 December 2021	
		
CATCHWORDS:	WORKERS COMPENSATION -  Accepted psychological injury, but dispute as to the cause and whether injury wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to dismissal; worker alleged bullying and harassment during course of employment before termination during probation period; Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Department of Education and Training v Sinclair; Hamad v Q Catering Limited, Irwin v Director-General of School Education, Ivanisevic v Laudet Pty Ltd, Northern NSW Local Health Network v Heggie and Attorney General’s Department v K discussed and applied; Held -worker’s injury caused by all events at work, not merely termination; in the alternative, respondent’s actions were not reasonable; award for applicant for weekly compensation and medical expenses, referral to a Medical Assessor.
	
determinations made:	1.	The applicant sustained a psychological injury arising out of or in the course of his employment on 1 October 2019 (deemed).

2.	The applicant’s employment was the main contributing factor to his injury.

3.	The applicant was paid weekly compensation from 3 November 2019 to 5 September 2020.

4.	The applicant has had the capacity to work for 12 hours per week since 6 September 2020.

5.	The applicant requires medical treatment as a consequence of his injury.

6.	The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to dismissal.
	
ORDERS MADE:	7.	The respondent to pay the applicant $1,007.68 per week as adjusted from 6 September 2020 to date and continuing pursuant to section 37(3)(a) of the Workers Compensation Act 1987.

8.	The respondent to pay the applicant’s reasonably necessary medical expenses pursuant to section 60 of the Workers Compensation Act 1987.

9.	I remit the matter to the President for referral to a Medical Assessor for assessment of the whole person impairment as follows:

Date of injury: 		1 October 2019 (deemed)– disease.
Body systems / parts: 	Psychological/psychiatric disorder.
10.	The medical examination can proceed face to face or via a video assessment and the parties are directed to be aware of the requirements contained in the Commission’s e-bulletin 101.

11.	The documents to be reviewed by the Medical Assessor are: 

(a)	Application to Resolve a Dispute and attached documents;
(b)	Reply and attached documents;
(c)	Application to Admit Late Documents received on 9 November 2021, and
(d)	Application to Admit Late Documents received on 9 December 2021.

STATEMENT OF REASONS

BACKGROUND

1.	Kenneth Savage (the applicant) is 59 years old and commenced employment with ECO Septic Pty Ltd (the respondent) as a product manager on 20 May 2019. He was dismissed on 1 October 2019.

2.	There is no dispute that the applicant suffered a psychological injury arising out of or in the course of his employment and that his employment was the main contributing factor to his injury.

3.	The applicant submitted a claim form on 22 October 2019, alleging that he was bullied, harassed and intimidated by the managing director, Stuart Day, over a period of months. He ceased work on 1 October 2019.

4.	It seems that icare (the insurer) decided to pay the applicant weekly compensation and medical expenses. The nature of the payments is unknown, as there are no documents in evidence that explain the reasoning behind the insurer’s decision. Payments were made from 3 November 2019 to 5 September 2020. 

5.	On 11 August 2020, the insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing that the applicant was entitled to compensation because his psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to dismissal. It disputed that the applicant was entitled to weekly compensation and the payment of medical expenses. It cited ss 11A, 33, 59 and 60 of the Workers Compensation Act 1987 (the 1987 Act).

6.	On 26 October 2020, the applicant’s solicitor served a notice of claim in respect of lump sum compensation. 

7.	On 18 December 2020, the insurer advised the applicant that his permanent impairment was not capable of assessment because his injury had not reached maximum medical improvement.

8.	By an Application to Resolve a Dispute (the Application) registered in the Personal Injury Commission (the Commission) on 23 September 2021, the applicant claims weekly compensation from 6 September 2020 to date and continuing pursuant to s 37 of the 1987 Act, medical expenses pursuant to s 60 of the 1987 Act, and lump sum compensation pursuant to s 66 of the 1987 Act due to a psychological injury sustained on 1 October 2019 (deemed). 

PROCEDURE BEFORE THE COMMISSION
9.	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 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

10.	The parties agree that the following issues remain in dispute:

(a)	whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to dismissal – s 11A (1) of the 1987 Act;

(b)	extent and quantification of the applicant’s capacity – ss 36 and 37 of the 1987 Act;

(c)	the respondent’s liability with respect to the payment of medical expenses – 
s 60 of the 1987 Act, and

(d)	quantification of the applicant’s whole person impairment – s 66 of the 1987 Act.

Documentary evidence

11.	The following documents were in evidence before the Commission and taken into account in making this determination: 

(a)	Application and attached documents;
(b)	Reply and attached documents;
(c)	Application to Admit Late Documents received on 9 November 2021, and
(d)	Application to Admit Late Documents received on 9 December 2021.

Oral evidence
12.	Neither party sought leave to adduce oral evidence or cross examine any witnesses.

REVIEW OF EVIDENCE

Applicant’s statements 

13.	The applicant provided a statement on 30 June 2020. He advised that he had never been counselled for any performance issues or for any breaches of policies and procedures during his employment with the respondent.  After he commenced employment, he observed that there were cleanliness and safety issues at work. He was under pressure as he was responsible for quality control and about one month before he was dismissed, he started to experience anxiety.

14.	The applicant stated that over time, quality control, performance and attendance levels improved as a result of his input. When his manager, Mr Day, was away, there was no fighting or abuse. The workers appreciated his support for how he stood up to Mr Day. He loved his job, but he found it hard to cope with the tension at work.

15.	The applicant described various incidents when Mr Day lost his temper. On many of these occasions, the applicant intervened, counselled the young workers and he tried to calm 
Mr Day down. The various incidents involving Mr Day included arguments with Jeremy, abuse of Jarrod, slamming his office door and calling him a lazy bastard, and cursing with clenched fists when someone tried to move his camping gear. The applicant stated that he had never been so belittled in his life.

16.	The applicant stated his relationship with Mr Day deteriorated. Mr Day did not greet him when he arrived at work. He started to get anxiety in the mornings about going to work and would vomit. He stated that the abuse did not stop, everything that he did was wrong, and Mr Day gave instructions to the workers without informing him. He was directed to complete various forms, but he was given no instructions how to do it. He stated that he did not want to go to work, but he loved his job, even though he was being poorly treated.

17.	The applicant stated that in the last week of his employment, Mr Day advised him that he was being let go that day. He threw something on his desk. He complained that the tanks went out when the glue was still wet. The applicant asked if he could stay at work in sales, but Mr Day said “no”. The applicant said that he was really upset, but it felt like “4 bags of concrete went off my shoulders”.

18.	The applicant stated that he stayed at home for two weeks. He had anxiety, depression and gout that was caused by stress. He felt that he had let his family down and he had lost his dream job. He thought that he had been treated harshly, because others had attended meetings and there were minutes.

19.	The applicant stated that he had spoken to his doctor before he left work and saw him a week later about his symptoms. The doctor provided a certificate, and he consulted a psychologist.

20.	In his statement dated 7 July 2021, the applicant described his past work history. He indicated that in or around 2017, he was admitted to the mental health unit for one day at Campbelltown Hospital due to an unintentional overdose of prescribed medication. He did not receive any further psychological treatment until his work injury.

21.	The applicant stated that he witnessed Mr Day screaming at one of the employees and degrading him in front of other work colleagues. He was not provided with any training, guidance, or support with regard to his role, and he was directed to undertake tasks that were outside of his skillset. There were safety issues with the trucks, and the toilets, kitchen and changerooms were dirty, so he initiated changes to remedy these issues. Mr Day told him that he should not try to intervene in the business activities of the respondent.

22.	The applicant stated that he often saw Mr Day and Jeremy arguing. He told Jeremy that Mr Day wanted to get rid of him. Jeremy thanked him for his honesty, and he resigned the following day. This was greeted with much joy by some of the respondent’s employees.

23.	The applicant stated that Mr Day continued to give him mixed messages. He was very intimidating and always aggressive. He struggled to keep up with Mr Day’s moodiness. He was given more jobs and was abused by Mr Day for cleaning the floors. He had to manage three divisions without any support.

24.	The applicant confirmed that he was protective of the workers and he always had to be the middle person when resolving any conflict between Mr Day and the employees. He started to feel overly concerned for the safety of the young workers and he had such a high level of resentment that he thought about harming Mr Day. 

25.	The applicant stated that on one occasion, Mr Day approached him in an overly aggressive, intimidating manner with his fist clenched and he accused him of moving the forklift. Mr Day left without allowing him to explain what had happened. Such situations caused distress and he felt overwhelmed.

26.	The applicant stated that Mr Day would raise his voice and yell abuse at the workers. He would kick buckets and throw items. He would barge into his room, slam the door and yell at him in a threatening manner. The applicant stated that he reported this behaviour to HR many times. Ms Ohrling would talk to Mr Day and he would be calm for a few days.

27.	The applicant stated that he started to ignore and normalise the abusive behaviour in the workplace. He strived to help his work colleagues and offered them praise. He admitted that he may have lost temper with a worker, but he apologised for his actions.

28.	The applicant stated that following the incident with Mr Day’s camping equipment, Mr Day yelled at him and shut down any comment he tried to make. Mr Day paced back and forth with his fist clenched like he was ready for a fight. The applicant stated that he was terrified, upset and was shaking. He started to develop anxiety, insomnia, fatigue, poor energy, struggled with decision making, comprehension and multitasking.

29.	Th applicant stated that Mr Day victimised and bullied him over the last four months of his employment.  He stated that on 1 October 2019, Mr Day asked him to stay back after work. He handed him a termination letter and told him to pick up his belonging and get out. He did not receive any warning, formal notification, or a meeting. He was not aware of any probationary period. He was shocked by the whole situation.

Statements of Amy Ohrling

30.	Amy Ohrling, an employee in the accounts section of the respondent, provided a statement on 16 June 2020. She confirmed that the applicant had not been formally counselled for performance issues or breaches of company policies or procedures. Her statement primarily dealt with the applicant’s responsibilities, work practices and his comments about the workplace. 

31.	Ms Ohrling indicated that the applicant was employed to free up Mr Day so he would not have to deal with staff problems. The applicant did not understand how the respondent’s operations worked and he had not completed tasks properly. He was provided with feedback about the tasks, but the next day, he would ask the same question yet again. She considered that he did not fit well in the position. He had issues with communication that confused staff members.

32.	Ms Ohrling stated that the applicant had not reported any bullying or other concerns about his employment. He made no complaints to her about Mr Day’s behaviour. She acknowledged that Mr Day would clash with Jeremy, but this was not major, and they avoided each other. There were many long term staff, and they would not have stayed if they were being bullied and harassed.

33.	Ms Ohrling stated that the applicant pulled Jarrod under his wing and he felt good working under the applicant. However, he also felt good working with Mr Day. She did not believe that Mr Day would have chastised Dallas, who was still working for the respondent. She could not recall the applicant talking to her about a meeting with Dallas.

34.	Ms Ohrling stated that there was an issue with the tanks not being completed properly and the applicant was responsible for checking them before delivery. He was meant to convene toolbox meetings and complete paperwork for orders, but this was not done.

35.	Ms Ohrling stated that Jarrod was still employed. She had never heard Mr Day call the applicant a lazy bastard, and she could not recall Mr Day yelling at the applicant before he went on holiday. She stated that she liked the applicant, but it was hard to work with him.

36.	Ms Ohrling stated that just before 1 October 2019, Mr Day told her that they needed to let the applicant go because the arrangement was not working. The applicant was also within his probation period. She prepared the paperwork and gave it to Mr Day. She gave the applicant a hug when he came to tell her that he was leaving.  She was surprised when the insurer advised that he had made a claim. 

37.	Ms Ohrling stated that they did everything by the book in accordance with the respondent’s policies and procedures. The applicant was in his probation period, and he was not suited for the role.

38.	Ms Ohrling provided a further statement on 26 November 2021. She confirmed that she was employed in the accounts section but assisted with HR with advice from Employsure. She denied that the applicant had complained to her about Mr Day’s behaviour, and she questioned why he would want to work in another more stressful role in the company if 
Mr Day had behaved as badly as the applicant had claimed.

39.	Ms Ohrling did not recall the applicant telling her that the respondent risked losing Jarrod because Mr Day constantly intimidated him, or that she spoke to Mr Day about this. She stated that Jarrod had not complained about Mr Day and he was still employed. She did not recall any complaints by the applicant regarding name calling or comments made by Mr Day. 

Statements of Craig Butterworth

40.	Craig Butterworth, a labourer, provided a statement on 6 December 2019. He stated that he did not witness any arguments involving the applicant. He indicated that Mr Day was not aggressive, but he merely wanted the applicant to do what he was employed to do. The applicant continued to ask him questions and after three months, Mr Butterworth found this annoying.

41.	Mr Butterworth indicated that on one occasion, the applicant abused and yelled at Aaron for about 10 minutes when he was driving a forklift. He also heard the applicant yelling at Jarrod and Dallas. The applicant later apologised to Aaron for his behaviour. He was not surprised that the applicant’s employment had been terminated because he made jobs harder. He would not communicate, and he did not complete paperwork. He did not witness the applicant being bullied by Mr Day.

42.	Mr Butterworth provided a further statement on 26 November 2021. He confirmed that the applicant abused Aaron when he was driving the forklift for the first time. He also indicated that he heard the applicant talking to Jarrod and Dallas in a loud voice, which was unnecessary. He asked the applicant to apologise to Jarrod and Aaron.

Statements of Bianca Joukador

43.	Bianca Joukador, a sales and service co-ordinator, provided a statement on 13 December 2019. Page 4 of her statement is missing, and the statement ends abruptly on page 5.
I raised this at the telephone conference, but the respondent’s solicitor failed to address this.

44.	Ms Joukador indicated that the applicant refused to take on the production of tanks. He did not understand the process that they taught him, he would lose paperwork, and the tanks were not inspected or ready for delivery. 

45.	Ms Joukador stated that Mr Day was firm when he spoke to the applicant about the issues with the tanks. The applicant did not say anything about this conversation, and he did not appear to be affected by it.

46.	Ms Joukador stated that she would not say that the staff were spoken to poorly by Mr Day. She did not hear Mr Day call the applicant a lazy bastard, and she had been told that the applicant had been caught asleep in the office several times. She could not recall the applicant making any mistakes or being screamed at by Mr Day before he went on leave.

47.	Ms Joukador provided a further statement on 25 November 2021. She indicated that she could not recall Mr Day’s tantrum when he kicked a bucket. She agreed that the applicant stayed back at work a few times when she was the only person left in the office.

Statement of Stuart Day

48.	Stuart Day, the Managing Director, provided a statement on 5 June 2020. He stated that the applicant never reported any concerns to him about his behaviour nor of any bullying. He conceded that he might not have spent enough time with the applicant. He did not understand the requirements of the role and this was why he was let go. His statement also focussed on the applicant’s performance issues.

49.	Mr Day agreed that he raised his voice with the applicant, but he did so because he was doing things at the last moment, such as the application of the glue on the tanks. He spoke to the applicant about this on a number of occasions, but he was not aggressive. He stated that he had to be “chipping at people” to get things done. He was not just yelling at them, but things had to be done. He set his alarm to go off after lunch, so that he could go down to the floor and make sure the staff went back to work. This was the applicant’s job, but he was asleep in his office. He was the point of contact for the team, but the staff avoided him.

50.	Mr Day stated that the applicant did not give the staff any self-esteem. It was reported that he swore at staff and said that they were useless. He advised that Jeremy had threatened him, and the respondent did not need someone like him at the workplace.

51.	Mr Day acknowledged that the respondent could not just terminate an employee. There was a process, and this was why the respondent retained Employsure. It was the applicant’s responsibility to deal with Dallas, and he did not want to undermine the applicant’s authority. He did not believe that his behaviour towards the applicant was inappropriate at any time. He denied that he abused Jarrod, who was still employed.

52.	Mr Day claimed that it was the applicant who was causing dramas. He could not imagine that he had called the applicant a lazy bastard, and he would not have yelled at him. He was worried about leaving the applicant in charge while he was away, and he had to make sure that the procedures were in place. He could also not imagine any abuse towards the applicant by any of the staff members.

53.	Mr Day stated that the applicant had trouble doing the simplest of tasks and he was coming towards the end of his probation. He questioned why, if he was such a bully and a “crazy eyed nut job”, the applicant had asked to be moved to another department. He placed the paperwork on the applicant’s desk, and the applicant asked if he would receive a severance payment. 

54.	Curiously, Mr Day was not requested to provide a further statement in response to the applicant’s more recent statement.

Applicant’s statement in response

55.	In his statement dated 9 November 2021, the applicant confirmed that he complained to Ms Ohrling and Ms Joukador about Mr Day’s behaviour. Ms Ohrling spoke to Mr Day, and his attitude towards Jarrod changed overnight. He claimed that Ms Ohrling did not hear 
Mr Day call him a lazy bastard because her office was not near his office. He confirmed that Ms Joukador witnessed Mr Day’s tantrum in the yard when he swore and kicked a bucket of rubbish.

56.	The applicant could not recall cursing at Aaron, but he admitted to a “slip of the tongue” and he apologised to Jarrod and Aaron. He denied that he yelled at Jarrod and Dallas and explained that it was necessary to talk louder due to the factory noise.

Reports, clinical notes and certificates of Dr Demasi

57.	The clinical notes of Dr Demasi commence on 6 May 2019 and conclude on 24 May 2021.  

58.	The first entry that referred to any psychological symptoms was on 15 October 2019 as follows:

“conflict with boss, “stood up to him for being verbally abusive to younger workers”, then felt poorly treated for 3 weeks, then suddenly sacked from job 2 weeks ago.
lots of anx/panic symptoms
episodes mane vomit, insomnia, ruminations.
financial strain 
Diagnosis:
Adjustment disorder with mixed anxiety and depressed mood
Reason for visit:
Adjustment disorder with mixed anxiety and depressed mood…”

59.	Dr Demasi prescribed Oxazepam and provided him with a Centrelink certificate. On 
23 October 2019, the doctor referred the applicant to a psychologist, and he issued a SIRA certificate.

60.	The applicant consulted the doctor on five further occasions in late 2019 and then on 
3 February 2020. At that consultation, the doctor noted that the applicant had started looking for a new job, but he lacked confidence to start fulltime work. The doctor considered that the applicant was fit for very restricted duties.

61.	On 29 April 2020, Dr Demasi reported that the applicant was making good progress with his psychologist. On 29 May 2020, the doctor noted that the applicant was only experiencing occasional anxiety episodes. 

62.	On 29 June 2020, the applicant told the doctor that he felt that his anxiety was improving, and on 12 August 2020, the doctor provided a SIRA certificate. This certificate is not in evidence.

63.	On 1 September 2020, Dr Demasi made the following entry:

“Last night Family stressors. police involved.
feels overall controlled emotions in very stressful situation
Feels did the right thing Protected self and house.
bite left lower shin
Reason for visit:
Adjustment disorder with mixed anxiety and depressed mood.
Weight reduction management…”

64.	On 9 September 2020, Dr Demasi noted that the applicant was still seeing a psychologist. He noted “concern recent familiar conflict (see prev consult)”. The doctor completed a mental health plan and referred the applicant to a psychologist.

65.	The letter of referral dated 9 September 2020 contained no history or reasons for the treatment, but the mental health plan recorded that the applicant’s claim had recently been declined and he had experienced recent family conflict.

66.	On 7 October 2020, Dr Demasi made the following entry:

“charged by son, arrested. has solicitor, will go to court
feels son and granddaughter lied on their statements.
increase stress, anxiety.
Reason for visit:
Adjustment disorder with mixed anxiety and depressed mood
Centrelink certificate
Management:
has restarted quetiapine, nocte.
ongoing psychology
plan healthy lifestyle, relaxation….”
67.	At the consultation on 30 October 2020, Dr Demasi recorded that the applicant was troubled by swelling in his right knee. He noted that the reason for the visit was for gout, (?) osteoarthritis and an Adjustment Disorder with mixed anxiety and depressed mood. He also recorded this history:

“recent stress dealing with conflict in family.
see prev consult.
confrontation with son, hit his head and needed sutures on scalp.
the 34 charges from police now reduced to assault. going to court.
discuss with psychologist.
will ask me to write letter from solicitor.
is accepting that son may not be receptive to suggestions of help”

68.	On 21 December 2020, the doctor noted that the applicant’s anxiety levels had improved. He had been to court and he had been charged with domestic assault. The other multiple charges had been dropped. An AVO had been issued against him. The doctor issued a Centrelink certificate and conducted a review of the applicant’s mental health plan.

69.	There were no further entries in respect of the applicant’s psychological condition until 
26 March 2021, when the doctor recorded that the applicant had experienced recent stress due to his wife’s memory issues. 

70.	On 21 May 2021, the doctor noted that the applicant had high anxiety and low mood. Centrelink was pressuring him to look for work. He was caring for his wife and he had been certified as having no capacity for work.

71.	Dr Demasi certified that the applicant had no current work capacity due to an Adjustment Disorder with mixed anxiety and depressed mood in a series of certificates from 1 October 2019 to 1 February 2020. Centrelink certificates certified that the applicant was unfit for work from 1 October 2019 to 1 April 2020.

72.	Dr Demasi certified that the applicant had the capacity for some work for four hours per day, three days per week from 1 February 2020 to 1 April 2020.

73.	According to the Centrelink certificate dated 26 March 2021, the applicant was unfit for work from 1 April 2021 to 1 October 2021 due to an Adjustment Disorder with mixed anxiety and depressed mood, which had become worse after recent family stress.

74.	Dr Demasi reported on 14 May 2021. He advised that he saw the applicant on three occasions between 16 March 2021 and 19 April 2021 for carer stress, and this had exacerbated his mental state. 

75.	In his reports dated 17 September 2021 and 22 October 2021, Dr Demasi diagnosed an Adjustment Disorder with mixed anxiety and depressed mood. He did not comment on causation, but he noted that the applicant had significant stressors. He stated that the applicant had been unfit for work since 5 September 2020. The doctor indicated that if the applicant’s condition improved, he would be able to return to work at a different workplace, starting with four hours a day, three days a week and gradually increase to normal hours under the direction of a psychologist. 

Reports and clinical notes of Difference Health Group

76.	Alana Dulgaro, psychologist, reported on 7 February 2020. She indicated that the applicant presented on 8 November 2019 with symptoms of anxiety, depression and stress precipitated by workplace bullying. She confirmed that she treated the applicant during 10 sessions, and his symptoms had improved. She reported that he still had anxiety due to financial stressors and the idea of returning to work with responsibility over other staff members. She recommended six further sessions of counselling, and this was approved by the insurer.

77.	Dany Aboumelham, psychologist, reported on 15 September 2020. He confirmed that the applicant had attended the practice for 24 counselling sessions from 8 November 2019 to 
8 October 2020. He reported a history of workplace bullying and eventual termination of his employment. His symptoms had improved by the time that Mr Aboumelham started treating him in July 2020.

78.	In his report dated 1 February 2021, Mr Aboumelham advised that he had treated the applicant on six occasions after 23 July 2020. He recorded that the applicant had observed Mr Day abusing staff members and this behaviour had been ignored by other employees. On one occasion, Mr Day stormed into his office and abused him about the staff, production issues and the tanks. 

79.	The psychologist indicated that the applicant had told him about a number of similar incidents when Mr Day abused him in his office or in the workplace in front of other employees. This continued until he was unexpectantly terminated on 1 October 2019.

80.	Mr Aboumelham diagnosed an Adjustment Disorder with anxiety. The applicant was adversely affected by Mr Day’s treatment, but he was able to continue working. He felt that the main contributing factor to the applicant’s psychological injury was his unexpected termination. This seemed to exacerbate the distress that he felt when he recalled the incidents at work.

81.	Mr Aboumelham recommended that the applicant gradually return to work for no more than four hours per day, two to three days per week.

82.	Mr Aboumelham stated that it was difficult to comment on the impact of non-work factors, such as his current financial situation, the physical issues with his ankles and knee, and the recent arrest and court appearances. He acknowledged that these stressors impacted on his current situation, but these might not have eventuated if he had not experienced stress as a result of his work injury. He observed that the applicant had been in relatively stable and good mental health, so it could be argued that his psychological state could be largely attributed to his work injury, and his non-work related factors were exacerbated by the work injury.

83.	The handwritten clinical notes of Mr Aboumelham record details of the applicant’s symptoms and the counselling provided to him. They are of little assistance. There is a handwritten description by the applicant of the events at work which is consistent with his statements.

Reports of Dr Rastogi

84.	Dr Rastogi reported on 16 October 2020. She noted that the applicant had no issues during the first two months of his employment. She described the interactions between Mr Day, co-workers and the applicant, consistent with the applicant’s statements, and noted that on multiple occasions, Mr Day berated, denigrated and humiliated the applicant and blamed him for wrong doings. The applicant told the doctor that Mr Day’s body language was very intimidating and always aggressive. Mr Day’s moods also varied.

85.	Dr Rastogi noted that after Mr Day returned from a holiday, he soon reverted to his aggressive and intimidating behaviour. She recorded details of the camping gear incident and Mr Day’s intimidating reaction. The applicant raised safety issues, but these were not addressed. His services were terminated on 1 October 2019 without any explanation, and he was in shock and disarray.

86.	Dr Rastogi reported details of the applicant’s past admission to the mental health unit at Campbelltown Hospital, his current symptoms, the recent assault of his son and his arrest by the Police.

87.	Dr Rastogi diagnosed an Adjustment Disorder with anxious distress which was wholly due to chronic bullying and intimidation by Mr Day in multiple incidents over six months. The applicant continued to work in a hostile environment, and he developed symptoms of anxiety as a result of Mr Day’s behaviour. She indicated that the nature and conditions of the applicant’s employment and the cumulative negative incidents over time had led to his psychological condition. His termination was the last straw that reinforced the acute anxiety and depression that he was experiencing. His employment was the main contributing factor to his psychological condition. 

88.	Dr Rastogi stated that the applicant was unfit to work but had the capacity to work in a new less stressful role with no management duties elsewhere. She recommended that a vocational assessment should be undertaken in the next eight to ten weeks. She assessed 15% whole person impairment.

Reports of Dr Dayalan

89.	Dr Dayalan reported on 12 December 2019. He noted that the applicant had been abused by Mr Day, who had an aggressive demeanour. The applicant felt stressed because he was caught in the middle between the staff and Mr Day. He tried not to worry and despite these stressors, he loved his job. He was surprised when his services were terminated. Following his termination, he consulted a psychologist and was prescribed medication.

90.	Dr Dayalan diagnosed an Adjustment Disorder with mixed anxiety and depression. He believed that the main contributing factor to his condition was his termination. He noted that although there was a strained relationship with his employer, this did not significantly impact on his mental state to cause any impairment of functioning. The symptoms were exacerbated following the applicant’s termination on 1 October 2019. 

91.	Dr Dayalan expected a resolution of the applicant’s symptoms and a return to work for two to three days per week in two or three months, with a gradual progression to full duties over a period of three to six months. He recommended that psychological treatment and medication continue to be provided for a year.

92.	Dr Dayalan reported again on 12 February 2020. He was provided with a copy of the factual investigation. He maintained his opinion that there had not been a significant impairment in the applicant’s functioning until his services were terminated. He concluded that the applicant’s termination was the predominant cause of his psychological injury.

93.	In his report dated 12 December 2020, Dr Dayalan noted that the applicant had been treated in a psychiatric in-patient unit four years earlier following an adverse reaction to a painkiller. The applicant told the doctor that his mental state had fluctuated and six months earlier, he had experienced a relapse of his symptoms. His mental state improved, but then deteriorated two months earlier. He had been charged with assaulting his son, he had attended court a few weeks prior to the examination. He had been given a suspended sentence. 

94.	Dr Dayalan reported that the applicant was keen to return to the workforce and a friend had offered him a job that involved inspecting newly built homes. This was to commence in January 2021. The applicant was apprehensive about the impact that his anxiety might have on this job.

95.	Dr Dayalan confirmed that the applicant had an Adjustment Disorder with mixed anxiety and depression, but his condition had not reached maximum medical improvement, given the number of non-work related issues impacting on his condition. He expected a recovery with three to six months.

Termination letter 

96.	The termination letter that the applicant received from Mr Day on 1 October 2019 was in the following terms:

“RE - Termination of your employment

We refer to our meeting today.

As discussed, we regrettably confirm that you will not be offered ongoing employment with the Company.

Accordingly, we confirm that your employment with us is terminated effective 
01.10.2019.

The following entitlements will be paid to you on Tuesday 01.10.2019

• One week' s payment in lieu of notice;

• 52 hours of untaken annual leave; and

• Wages for Monday 30.09.2019 and Tuesday 01.10.2019.

If you have any enquiries in relation to this matter, please contact me on …”

APPLICANT’S SUBMISSIONS

97.	The applicant’s counsel, Mr Stanton, submits that the applicant provided a history in his statement regarding his interactions with Mr Day, and the cumulative effect that this had on his psychological symptoms. He did not seek treatment from Dr Demasi immediately, but it is apparent from the entry in the doctor’s notes on 15 October 2019 that the applicant had been treated poorly for three weeks and his clinical presentation and symptoms were not merely related to his termination. 

98.	Mr Stanton submits that the description of the events at work varies. Ms Ohrling confirmed that Jeremy and Mr Day clashed, and there was no formal complaint, so this shows the unhappy nature of the workplace. She stated that the applicant took Jarrod under his wing because he was easily intimidated, and this shows that he stood up for the staff members.

99.	Mr Stanton submits that in his statement, Mr Day admitted that he raised his voice at the applicant, although according to the applicant, Mr Day yelled at him. He also said that he had to chip at staff to get things done and he was not just yelling at them. This is consistent with the applicant’s evidence.

100.	Mr Stanton submits that Mr Day acknowledged that the respondent could not just get rid of someone, but that is precisely what Mr Day did. According to the applicant, he was unexpectedly told that he was sacked. The letter of termination merely stated that he would not be offered ongoing employment with the respondent.

101.	Mr Stanton submits that Mr Day indicated that the applicant was still in the probation period and the contract provided that the employment could be terminated with one week’s notice, but that does not mean that the action was reasonable. Mr Day indicated that the there was a process and that was why Employsure was involved, but he did not provide any further explanation. 

102.	Mr Stanton submits that if the applicant had some performance issues, he should have been told about this and be given the opportunity to address it, and if there was no improvement, then the respondent could have moved towards termination. Such action would have been reasonable.

103.	Mr Stanton submits in the alternative that if the respondent’s actions were reasonable, one could not be satisfied that the applicant’s psychological injury was wholly or predominantly caused by his termination. 

104.	Mr Stanton submits that Dr Rastogi indicated that the applicant’s condition was caused by the events over a six month period and his termination was the last straw. Dr Dayalan reported that the work related events that were of concern to the applicant were the strained relationship with his employer and the unsafe work conditions. There were concerns over a period of time that impacted on his mental state.

105.	Mr Stanton submits that Dr Dayalan indicated that the applicant’s termination was the main contributing factor to his psychological injury, rather than the prior events, but one could still be injured without being incapacitated. The applicant’s incapacity was caused by all of the events, and the final straw, namely his termination, was not the whole or predominant cause of his injury.

106.	Mr Stanton submits that there is a divergence of opinion in respect of the applicant’s capacity. Dr Demasi indicated that the applicant has had no current work capacity since 
6 September 2020. He is in the best position to express an opinion, given that he has seen the applicant on multiple occasions. He commented that with future improvement, the applicant would be able to work for 12 hours per week.

107.	Mr Stanton submits that Mr Aboumelham had seen the applicant on numerous occasions and his history was similar to the applicant’s evidence. He diagnosed an Adjustment Disorder and recommended that the applicant work for no more than 8 to 12 hours per week. He stated that the applicant’s current psychological state could be largely attributed to his work injury and non-work related factors were exacerbated by it, so on one view, the applicant’s other stressors were causally related. The opinions of Dr Demasi and Mr Aboumelham should be preferred, so one can be satisfied that the applicant has had no current work capacity.

108.	Mr Stanton submits that the applicant was already incapacitated, so one cannot conclude that the deterioration in the applicant’s condition around September 2020 was caused by the domestic violence incident. This was just a consequence of his work injury.

109.	In the alternative, Mr Stanton submits that if the applicant has the capacity to do some work, he could only work on a part time basis, earning around $20 per hour or $400 per week. He would be entitled to an award for medical expenses, and his whole person impairment should be assessed by a Medical Assessor.

RESPONDENT’S SUBMISSIONS

110.	The respondent’s counsel, Mr Morgan, submits that the insurer’s dispute notice identified the matters in issue and the manner in which the respondent’s employees challenged the applicant’s version of events. One should have regard to the differences when compared to the applicant’s statements.

111.	Mr Morgan submits that the applicant described the work environment in florid detail, and some of his allegations and the way that he has described the workplace would cause anyone distress. However, the applicant’s evidence is not corroborated by witnesses or in the clinical notes.

112.	Mr Morgan submits that on 15 October 2019, Dr Demasi reported that the applicant’s mental state had been slowly deteriorating before his termination, but this is inconsistent with the clinical notes of the psychologist. The applicant claimed that the issues extended back to May 2019, but the medical evidence suggests that the interactions close to 1 October 2019 were causative. The acceptance of the applicant’s evidence is dependent on the contemporaneous notes. There was no mention of dirty bathrooms or the kitchen, his reluctance to go to work, details of his termination on 1 October 2019 and his symptoms over the following two weeks.

113.	Mr Morgan submits that when the applicant consulted Dr Demasi on 29 July 2019 and 
14 August 2019, he did not complain of any poor treatment. The corroborated evidence of the respondent’s employees should be preferred. There is no contemporaneous reporting and no statements from others to support the applicant’s evidence.

114.	Mr Morgan submits that the applicant alleged that Mr Day approached him in an overly aggressive fashion, and he claimed that he reported Mr Day’s behaviour to HR many times, however, Ms Ohrling and Mr Day deny this. The applicant’s credit is challenged by his denial that he knew that he was on probation, as this was in his employment contract. He claimed that he did not move for two weeks after his termination, but he had gout. He sought legal assistance before seeking medical advice.

115.	Mr Morgan submits that Ms Ohrling queried why the applicant would want to work in a different role if he had issues with Mr Day’s behaviour. This is inconsistent with someone who was struggling to work at the respondent and whose employment had been terminated.

116.	Mr Morgan submits that the applicant was not incapacitated by his psychological condition before he was terminated on 1 October 2019, so that was a critical event causing his incapacity. Dr Dayalan supported such a proposition. 

117.	Mr Morgan submits that the applicant stated that he had lost his dream job, yet he put up with all of the abuse, dysfunction and safety issues. His termination was the precipitating event of his psychological injury.

118.	Mr Morgan submits that Dr Rastogi broadly accepted the applicant’s history and his perception of events, but she stayed away from the effects of the termination. In those circumstances, no weight can be given to her opinion.

119.	Mr Morgan submits that the applicant did not have any psychological treatment before his termination. Dr Rastogi did not deal with this significant event and the deterioration in the applicant’s mental state. She also thought that he had some capacity for work. The applicant provided a florid description of events and these should have been reported, meaning that there must doubt whether the events occurred, or in the manner that the applicant described them.

120.	Mr Morgan submits that the applicant’s decompensation was linked to his termination, and given the circumstances of his termination, the respondent’s actions were reasonable.

121.	Mr Morgan submits that the applicant has had a capacity to work, and any downgrading had nothing to do with his mental health. Dr Rastogi suggested that the applicant work in a less stressful position, and Dr Demasi indicated that the applicant was fit for 12 hours per week, with an expectation of an increase. The applicant has had a long and successful career and would be expected to earn $200 to $300 per week.

REASONS

Was the applicant exposed to bullying and harassment?

122.	According to the applicant’s evidence, he had never been counselled for any performance issues or in respect of any breaches of any policies and procedures. The respondent’s employees raised issues about his inability to undertake tasks, complete paperwork and communicate with staff, but strangely he was not put under any performance improvement plan as one might expect in the case of an underperforming employee.

123.	The applicant stated that he was concerned about cleanliness and safety issues, but he did not suggest that his psychological symptoms were caused by the issues. The respondent’s witnesses tended to agree about the untidy state of the workplace.

124.	The applicant indicated that he was responsible for quality control and he began to develop anxiety because of the pressure associated with his role. The respondent’s witnesses have not disputed that the applicant worked under pressure, although they disagreed that performance and attendance levels improved under him.

125.	The applicant seemed to be somewhat of a father figure to the workers and he was the point of contact between the staff and management. He said that the staff members appreciated how he stood up to Mr Day. This has not been challenged by the respondent. Mr Day also acknowledged that Jeremy had threatened him. He did not deny that he and Jeremy clashed or that he had said to the applicant that Jeremy had to go. Ms Ohrling confirmed that 
Mr Day and Jeremy clashed, albeit “not majorly”.

126.	The applicant stated that Mr Day chastised Dallas because he was not making 20 tanks per week, and Mr Day wanted him to be sacked. Mr Day did not mention this in his statement. Ms Ohrling had no recollection of this. 

127.	Ms Ohrling stated that she did not blame Mr Day for “going off” in a dangerous situation, but she maintained that Mr Day was not a bully. Ms Joukador indicated that she would not say that the staff were spoken to poorly by Mr Day, but this comment seems lacking in conviction and is hardly convincing. 

128.	Mr Butterworth advised that he did not witness any arguments in the workplace involving the applicant, but such a statement does not mean that there were no arguments as alleged by the applicant. Rather, Mr Butterworth did not observe this. He stated that there was no aggression from Mr Day, but he did not elaborate.

129.	The applicant referred to the abuse of Jarrod, but this was denied by Mr Day. Neither witness’ evidence is corroborated, so it is one person’s word against another’s. Given that Jarrod is still employed, it would have been easy for the respondent to obtain a statement from him to corroborate Mr Day’s evidence.

130.	The above incidents largely relate to Mr Day’s dealings with other workers, not the applicant. It seems that on many occasions, the applicant intervened and then Mr Day allegedly directed the abuse towards him. The applicant’s allegations of poor behaviour were disputed by Mr Day, who stated that “I do not believe my behaviour towards the claimant was inappropriate at any time”, and there was “no abuse”. Such general denials are hardly persuasive.

131.	According to the applicant, Mr Day slammed the door of his office and called him a lazy bastard, and complained about the tanks, without giving any specifics. Mr Day said that he could not imagine himself saying this to the applicant, but he did not specifically deny it. 

132.	Ms Ohrling said that she had not heard Mr Day call the applicant a lazy bastard, and 
Ms Joukador advised that she had not heard Mr Day screaming at the applicant. This does not mean that the events did not occur, only that they did not witness it.

133.	The applicant stated that before he went on leave, Mr Day came into his office and started screaming at him. Mr Day said he would not have been yelling at the applicant. Again, this is one person’s word against another’s. 

134.	The applicant claimed that after Mr Day returned from leave, he saw him abusing staff members in the production area, and when he intervened, Mr Day directed the abuse at him. Mr Day denied that there was any abuse, and then said that he could not recall anything happening, which is internally inconsistent.

135.	The applicant claimed that Mr Day abused the forklift driver who was moving his camping gear, and then directed the abuse at him. He alleged that Mr Day paced back and forth with his fist clenched like he was ready for a fight. Whilst Mr Day admitted that he had yelled at the forklift driver, he did not comment on the aggressive behaviour described by the applicant. There was also the allegation of the incident when Mr Day allegedly kicked a bucket in the yard. This was not challenged by Mr Day. Mr Day said that he could not imagine ignoring the applicant at work as it was not in his nature to play mind games. There does not seem a great deal of conviction in this response.

136.	The applicant claimed that Mr Day was unhappy with the cleaning of a tank, said it was shithouse, and made him do it again. Mr Day responded that he would not have said that the cleaning job was a joke but did not deny the profanity. The applicant also said that Mr Day questioned why he was cleaning when he should be making tanks. Mr Day did not challenge this allegation.

137.	The applicant claimed that Mr Day started to undermine his instructions without informing him. Mr Day stated that he was not trying to undermine the applicant, but he acted for economic reasons. So it seems that the applicant’s allegation was confirmed.

138.	The applicant stated that he was expected to inspect and test the tanks, but he had not been trained to do so. Mr Day explained that it was an easy task, it was part of the applicant’s role to ensure the quality, and the applicant just had no idea. It appears that there were obvious issues with the applicant’s skillset, but the respondent did not take any formal steps to counsel and improve his performance.

139.	According to the applicant, Mr Day walked in, presumably into his office, said that due to the earlier meeting, he was letting him go, and he threw something down on his desk. The applicant asked if he could work in sales, but Mr Day said “no”. Mr Day did not dispute the applicant’s version of the event, but he questioned why the applicant would want to stay at work if he was a bully.

140.	In summary, the applicant has identified multiple issues that caused him stress during the course of his employment prior to his termination on 1 October 2019. There was a perception that he was being bullied and harassed by Mr Day.

141.	It is true that the applicant’s version of the events is not corroborated by other employees but given that his services were terminated two years ago, that is not surprising. Common sense would dictate that current employees of the respondent would most likely be reluctant to provide statements that might be critical of Mr Day. Significantly statements were not obtained from current employees Jarrod and Dallas, who the applicant claimed had been the subject of abuse by Mr Day. One would have thought that if the applicant’s allegations were false, then statements should have been obtained from these employees.
 
142.	The absence of a contemporaneous record of complaints in the clinical notes of Dr Demasi is of no great concern. Given that the applicant loved his job and seemed to put up with Mr Day’s behaviour, this is not surprising. 

143.	In decisions such as Davis v Council of the City of Wagga Wagga, Nominal Defendant v Clancy, King v Collinsand Mastronardi v State of New South Wales, the Court of Appeal cautioned against placing too much weight on the clinical notes of treating doctors, given their primary concern was treatment. In the Court’s view, the notes rarely, if ever, represent a complete record of the exchange between a busy doctor and the patient. 

144.	This also was confirmed in Winter v NSW Police Force, where Deputy President Roche stated:
“It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34] – [36]).”
145.	The applicant’s perception of his dealings with Mr Day is of paramount importance. In Attorney General’s Department v K, Deputy President Roche summarised relevant authorities in relation to a worker’s perception of real events at work:

“(a)	employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in State Transit Authority of NSW v Chemler [2007] NSWCA 249 (Chemler) at [40]);

(b) 	a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);

(c) 	if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);

(d) 	so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Leigh Sheridan v Q-Comp [2009] QIC 12);

(e) 	there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand v Comcare Australia [2002] FCA 1464 at [31]), and

(f) 	it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”

146.	The evidence suggests that the applicant was underperforming, but he was not involved in any performance management process. He claimed that he was not properly trained to undertake certain tasks, but Mr Day’s response was that the tasks were easy.

147.	The applicant described various incidents involving Mr Day, such as the arguments with Jeremy and the abuse of Jarrod and Dallas, slamming of doors, name calling and yelling, cursing with clenched fists and instances of abuse when he intervened to protect the younger workers. These are particularly detailed and specific allegations. A few of these allegations have been denied in very general terms by Mr Day, but a number have not been the subject of any comment. According to the applicant, these events were perceived by him as bullying and harassment, and they caused him anxiety and distress.

148.	Ms Ohrling denied that the applicant had reported Mr Day’s behaviour to her, but she acknowledged that Mr Day clashed with Jeremy, so this confirms that Mr Day had an aggressive streak.  Even if she is correct and the applicant did not complain about Mr Day’s behaviour, that does not mean that the poor behaviour did not occur. Ms Joukador and 
Mr Butterworth merely indicated that they had not seen any evidence of poor behaviour, which does not mean that it did not happen.

149.	Ms Ohrling had never heard Mr Day calling the applicant a lazy bastard or yelling at him, but she did not say that there were no arguments between Mr Day and the applicant. Like 
Mr Day, Ms Ohrling queried why the applicant would want to stay in employment if Mr Day was as much of a bully as he alleged. The simple answer to this question, according to the applicant, was that he loved his work and considered it his dream job. 

150.	On review of the applicant’s evidence and the evidence as a whole, I am satisfied that some of the events raised by him did in fact occur and were not imaginary. The applicant’s interactions with Mr Day caused him distress and anxiety. Even though he did not seek treatment until after his termination, I have no reason to doubt the veracity of his evidence or his perception of these real events. Therefore, I am satisfied that the applicant was exposed to bullying and harassment during the course of his employment at the respondent.

Was the applicant’s psychological injury wholly or predominantly caused by reasonable action with respect to dismissal?

151.	There is no dispute that the applicant suffers from a psychological injury and that his employment was the main contributing factor to his injury. The next question to consider is whether these events caused or contributed to the applicant’s psychological injury, and/or whether the applicant’s psychological injury was wholly or predominantly caused by his termination.

152.	In order to establish a defence under s 11A (1) of the 1987 Act, the respondent must show that the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to dismissal.

153.	In Hamad v Q Catering Limited, Deputy President Snell stated: 

	“The causal test in s 11A (1) is “different, and more difficult”, in that the test does not involve proof of “personal injury arising out of or in the course of employment” (the s 4(a) test), or that employment was a “substantial contributing factor” to the injury (the s 9A test), but rather whether the injury was “wholly or predominantly caused” by the relevant action. It is to be proved on the balance of probabilities; normal principles governing proof of causation apply, but subject to the fact that what must be established is a different statutory test to those in ss 4 and 9A. And the onus falls on the employer, rather than the worker. 

	In Ponnan Handley ADP at [24] held that the meaning of ‘predominant’ in s 11A(1) is “mainly or principally caused”. This was applied by Roche DP in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96 (Temelkov).”

In the same case Roche DP also dealt with the causation issue on the basis that Kooragang, as “the leading authority on causation in workers compensation claims”, applied – “causation is a question of fact to be determined on the evidence in each case” (at [79]).”

154.	According to the applicant, his dealings with Mr Day caused anxiety and distress. It reached a stage where he would get anxious about going to work and he would vomit. He did not seek treatment, but that does not mean that he was not experiencing psychological symptoms. When he was terminated, he felt that a weight had been lifted off his shoulders, but he eventually sought treatment from Dr Demasi. 

155.	The applicant was shocked by his sudden termination and I have no doubt that this had an impact on his mental state, consistent with the entry made by Dr Demasi on 15 October 2019. Dr Demasi also noted that the applicant had felt that he had been poorly treated for three weeks, so his focus was not only on the circumstances of his termination.

156.	It is true that the applicant had family issues in September 2020, but he was already receiving treatment for his psychological condition by that stage. Dr Demasi made no comment on causation in his reports.

157.	According to Ms Dulgaro, the applicant presented with symptoms of anxiety, stress and depression precipitated by workplace bullying. It is not clear whether she agreed that there was a causal relationship or that she was merely reporting what the applicant told her.

158.	Mr Aboumelham recorded a detailed history of workplace bullying before the applicant’s services were terminated. He noted that the applicant was adversely affected by Mr Day’s treatment and continued working, and he believed that the main contributing factor to the applicant’s psychological injury was his unexpected termination, which seemed to exacerbate the distress that the applicant felt regarding the incidents at work. So, he seems to implicate the work events and the termination, with the termination being of greater significance.

159.	Dr Rastogi obtained a history consistent with the applicant’s statements and was aware of his more recent issues with his son. She was satisfied that the applicant’s Adjustment Disorder with anxious distress was caused by Mr Day’s behaviour and the cumulative negative incidents over time. She formed the view that the applicant’s termination was the last straw that reinforced the acute anxiety and depression that he was experiencing. So, the doctor has considered what effect that termination had on the applicant’s mental state.

160.	Dr Dayalan noted that the applicant had a strained relationship with Mr Day, but it did not significantly impact on his mental state to cause any impairment of function. By this comment, it appears that the doctor accepted that there was some impact, but not a significant or incapacitating one. He agreed that the symptoms were exacerbated following his termination. 

161.	The evidence suggests that the applicant put up with Mr Day’s abuse because he loved his job and matters came to a head when he was terminated. I have already commented on the fact that the lack of complaint or treatment does not mean that the applicant did not have a psychological injury before his termination. Dr Dayalan indicated that the applicant’s termination was the predominant cause of his psychological injury, but he did not provide a detailed explanation for his conclusion.

162.	All of the clinicians accept that the applicant’s psychological injury was caused by a combination of the work events and his termination. Mr Aboumelham believed that the main contributing factor was his termination, which exacerbated existing distress, and Dr Dayalan was of a similar view. So, they acknowledge that there was a contribution from the events prior to the applicant’s termination. 

163.	Dr Rastogi considered that all of the events and the termination caused the applicant’s injury. Of course, a psychological injury can be multifactorial, and I believe that when all of the evidence is considered, common-sense would suggest that the applicant’s injury was caused by all of the events that occurred at work and was not wholly or predominantly caused by his termination.

164.	If I am wrong regarding the issue and the applicant’s injury was caused by his termination, 
I am not satisfied that the respondent’s actions were reasonable.

165.	Section 11A (1) of the 1987 Act provides:

“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

166.	This requires a consideration of the statutory provisions and the principles in Kooragang Cement Pty Ltd v Bates regarding the existence of a psychological injury, and then a consideration as to whether the psychological injury was wholly or predominantly caused by reasonable action of the employer with respect to one of the grounds in the section. In the present matter, injury is not in dispute.

167.	In Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Roche DP stated:

“The leading authority on causation in workers compensation claims is Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; 10 NSWCCR 796 (‘Kooragang’) where it was observed that causation is a question of fact to be determined on the evidence in each case. That case concerned the question of whether the death of a worker had ‘resulted from’ the relevant work injury. The present matter concerns whether ‘the injury was wholly or predominantly caused by reasonable action’. Acting Deputy President Handley considered the phrase ‘predominantly caused’ in Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 and applied the dictionary meaning (at [24]) of ‘mainly or principally caused’. I agree with that definition and intend to apply it in the present matter.”

168.	The respondent bears the onus of establishing the action taken was reasonable in 
accordance with the principles discussed in Pirie v Franklins Ltd  and in Department of Education & Training v Sinclair.

169.	The importance of medical evidence in establishing whether a psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by an employer was highlighted in Hamad, where Snell DP stated:

“… There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic….”

170.	The test is objective, based on the facts, and involves questions of fairness. In Irwin v Director-General of School Education, Geraghty CCJ stated:

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

171.	When considering what is reasonable, it is also important to have regard not only to the end result, but to the manner in which it is done. This was discussed in some detail by Truss CCJ in Ivanisevic v Laudet Pty Ltd , by Roche DP in St George Leagues Club Ltd v Wretowska, and by the Court of Appeal in Northern NSW Local Health Network v Heggie and in Sinclair. 

172.	The majority of the authorities deal with the principles to be considered in respect of discipline. Of course, dismissal or termination of a worker’s employment is often the outcome of the disciplinary process. Therefore, these authorities give some guidance as to the relevant principles to be considered.

173.	It was confirmed in Heggie that the term “discipline” in s 11A (1) of the 1987 Act includes the whole of the disciplinary process. Sackville AJA stated:

“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A (1) of the WC Act: 

(i) 	A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation;

(ii) 	Nonetheless, for s 11A (1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer;

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

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

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

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

174.	The same principles equally apply to the ground of “dismissal” in s 11A (1) of the 1987 Act. 

175.	The respondent says that it was in its power to terminate the applicant. The applicant claimed that he did not know that he was on probation. The contract was quite long and perhaps the applicant did not read it in full before signing. I see no reason to question the applicant’s credit regarding his knowledge of the contents of his contract.

176.	Certainly, the applicant’s contract of employment referred to the fact that his employment might be terminated on one week’s notice by either party, so its action was not contrary to the agreement. However, that does not mean that the action was reasonable.

177.	There is no dispute that the applicant was given no warning. He was not invited to a meeting to discuss his future employment or given the opportunity to show cause why his services should not be terminated. Mr Day merely told him that they would not keep him on. 

178.	The termination letter referred to a meeting, but this was only an informal discussion when Mr Day handed the letter to the applicant or threw it on his desk. The letter did not disclose the reasons.

179.	The applicant was having difficulties with his role and needed guidance to undertake certain tasks. It seems that he was provided with minimal assistance. He was not put on any performance improvement plan or given any intense form of training. A reasonable employer would have addressed this, and if things were not working out, it should have afforded the applicant the opportunity to justify his position with the respondent. Whilst the respondent’s actions might have been appropriate, the manner in which it acted was not reasonable.
	
180.	Having regard to the totality of the evidence and the common-sense evaluation test in Kooragang, I am not satisfied that the respondent has discharged the onus of showing that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to dismissal.

Extent of the applicant’s incapacity

181.	An assessment of the applicant’s capacity involves a consideration of whether the applicant has no current work capacity, or a current work capacity as defined in s 32A of the 1987 Act.

182.	Section 32A of the 1987 Act defines the relevant terms as follows:

“current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to his or her pre-injury employment but is able to return to work in suitable employment. 

no current work capacity, in relation to a worker, means a present inability arising from an injury such that the worker is not able to return to work, either in the worker’s pre-injury employment or in suitable employment. 

suitable employment, in relation to a worker, means employment in work for which the worker is currently suited: 

(a)	having regard to: 
(i) 	the nature of the worker’s incapacity and the details provided in medical information including, but not limited to, any certificate of capacity supplied by the worker (under section 44B), and 
(ii) 	the worker’s age, education, skills and work experience, and 
(iii) 	any plan or document prepared as part of the return to work planning process, including an injury management plan under Chapter 3 of the 1998 Act, and 
(iv) 	any occupational rehabilitation services that are being, or have been, provided to or for the worker, and 
(v) 	such other matters as the WorkCover Guidelines may specify, and 

(b)	regardless of: 
(i)	whether the work or the employment is available, and 
(ii)	whether the work or the employment is of a type or nature that is generally available in the employment market, and 
(iii)	the nature of the worker’s pre-injury employment, and 
(iv)	the worker’s place of residence.”

183.	“No current work capacity” requires a consideration of a worker’s capacity to undertake not only his pre-injury duties, but also suitable employment, irrespective of its availability. This was confirmed by Deputy President Roche in Mid North Coast Local Health District v De Boer and in Wollongong Nursing Home Pty Ltd v Dewar.

184.	Therefore, if the applicant has “no current work capacity”, I need to assess whether the applicant is unable to return to both his pre-injury duties and some suitable employment.

185.	There is no dispute that the applicant is unfit for his pre-injury duties. None of the clinicians have suggested that the applicant could return to work at the respondent. 

186.	In October 2020, Dr Rastogi stated that the applicant was unfit to work but had the capacity to work in a new less stressful role elsewhere with no management duties. Although the reference to having a vocational assessment in eight to ten weeks is confusing and might suggest that the applicant was unfit for another eight to ten weeks, her descriptor in the PIRS table for Adaptability was “Moderate as has capacity to work in step down, no managerial role with less responsibilities”, which suggests that the applicant had the capacity to work without any restriction on hours. She was aware of the family dispute but made no comments regarding any incapacitating effects arising from this.

187.	In December 2020, Dr Dayalan was told about the domestic assault. At that stage, he reported that the applicant was keen to return to the work, and he had been offered a position that was to start in January 2021. The applicant did not mention this in his statement, so it is unclear ifthe applicant ahs yndertaken any emoployment since January 2021. Dr Dayalan expected a recovery within three to six months. So, it appears that he was confident of a full recovery.

188.	Mr Aboumelham did not express an opinion regarding the applicant’s capacity until 
1 February 2021. He recommended that a gradual return to work for no more than 8 to 12 hours per week. 

189.	Mr Aboumelham identified the non-work factors that had an impact on him, and he stated that these might have been exacerbated by the work injury. Given that these issues arose after the applicant’s injury, such a conclusion is confusing. Perhaps he meant that the applicant’s work injury made him more susceptible to non-work related stressors.

190.	The SIRA certificates issued by Dr Demasi certified that the applicant was fit for some work for four hours per day, three days per week from 1 February 2020 to 1 April 2020. There are no further SIRA certificates. 

191.	Centrelink certificates certified that the applicant was unfit for work from 1 October 2019 to 
1 April 2020 and from 1 April 2021 to 1 October 2021, but the mode of assessment of capacity differs.

192.	The applicant has experienced psychological sequelae as a result of non-work related matters. The applicant’s domestic dispute with his son on 31 August 2020 and the subsequent court proceedings impacted significantly on his mental state. Dr Demasi recorded increased stress levels and anxiety at the consultation on 7 October 2020, and he prescribed additional medication. 

193.	On 21 December 2020, the doctor reported that there had been some improvement in the applicant’s anxiety, and he issued a Centrelink certificate, which is not in evidence. The Centrelink certificate issued on 26 March 2021 noted that the applicant’s condition had become worse after recent family stress, so it seems that it was still affecting the applicant in early 2021.

194.	In March 2021 and April 2021, Dr Demasi reported that the applicant had carer stress relating to his wife, and this had exacerbated his mental state. 

195.	In his reports dated 17 September 2021 and 22 October 2021, Dr Demasi stated that the applicant had been unfit for work since 5 September 2020, but with improvement, he would be able to return to work at a different workplace, starting with 12 hours per week and gradually increase to normal hours. This certification of total unfitness since 5 September 2020 seems to coincide with the domestic assault on 31 August 2020 and its sequelae.

196.	According to the applicant’s statement, he lacks confidence and self-esteem. He has flashbacks and nightmares and avoids crowds. He feels hopeless and fearful. He is able to socialise with friends but has issues with self-care, and he takes medication. He did not express any views regarding his capacity to work.

197.	The applicant is now 59 years old. He has worked as a cleaner, maintenance manager, project manager of office fit-outs, flooring installations and in contractor procurement. He has not been involved in any return to work plans or rehabilitation. 

198.	Dr Demasi felt that the applicant was fit for 12 hours per week as of 1 April 2020. There were no restrictions placed on the type of work that he could perform. The doctor certified that the applicant has had no current work capacity since 5 September 2020. The doctor did not explain the downgrade on the applicant’s capacity, which coincided with the domestic violence incident. When one examines the entirety of the medical evidence, there seems little doubt that non-work stressors have impacted significantly on the applicant’s mental state. 

199.	The applicant had been certified fit to perform 12 hours per week of suitable work earlier in 2020 before he was exposed to significant non-work related stressor in late August 2020. Dr Rastogi, Dr Dayalan and Mr Aboumelham agreed that the applicant had the capacity to undertake some work, so I am satisfied on the balance of probabilities that the applicant has had the capacity to work for 12 hours per week in a less stressful quality control position, such as he was offered in January 2021, earning, say, $25 per hour, or $300 per week since 6 September 2020.

Quantification of the applicant’s entitlement to weekly compensation

200.	The parties agreed that the applicant’s Pre-Injury Average Weekly Earnings (PIAWE) as at 
6 September 2020 was $1,634.60. 

201.	The applicant was paid weekly compensation from 3 November 2019 to 5 September 2020. Therefore, his entitlements will be calculated pursuant to s 37 of the 1987 Act.

202.	In accordance with s 37(3)(a) of the 1987 Act, the applicant’s entitlement to weekly compensation during the second entitlement period from 6 September 2020 to date and continuing is as follows:

(AWE x 80%) - D = 
$1,634.60 x 80% - $300 = 
$1,307.68 - $300 = $1,007.68 per week as adjusted. 

Medical Expenses

203.	As the applicant has succeeded in his claim, I accept the medical evidence that supports the need for payment of reasonably necessary medical, hospital and related expenses. Accordingly, there will be a general order under s 60 of the 1987 Act.

Quantification of whole person impairment 

204.	I will remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the 1998 Act for assessment of the whole person impairment due to a psychological injury sustained on 1 October 2019 (deemed).

FINDINGS

205.	The applicant sustained a psychological injury arising out of or in the course of his employment on 1 October 2019 (deemed).

206.	The applicant’s employment was the main contributing factor to his injury.

207.	The applicant was paid weekly compensation from 3 November 2019 to 5 September 2020.

208.	The applicant has had the capacity to work for 12 hours per week since 6 September 2020.

209.	The applicant requires medical treatment as a consequence of his injury.

210.	The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to dismissal.

ORDERS

211.	The respondent to pay the applicant $1,007.68 per week as adjusted from 6 September 2020 to date and continuing pursuant to s 37(3)(a) of the 1987 Act.

212.	The respondent to pay the applicant’s reasonably necessary medical expenses pursuant to 
s 60 of the 1987 Act.

213.	I remit the matter to the President for referral to a Medical Assessor for assessment of the whole person impairment as follows:

Date of injury: 		1 October 2019 (deemed)– disease.
Body systems / parts: 	Psychological/psychiatric disorder.
214.	The medical examination can proceed face to face or via a video assessment and the parties are directed to be aware of the requirements contained in the Commission’s e-bulletin 101.

215.	The documents to be reviewed by the Medical Assessor are: 

(a)	the Application and attached documents;
(b)	Reply and attached documents;
(c)	Application to Admit Late Documents received on 9 November 2021, and
(d)	Application to Admit Late Documents received on 9 December 2021.