WORKERS COMPENSATION COMMISSION
CERTIFICATE OF DETERMINATION
(Issued in accordance with section 294 of the Workplace Injury Management and Workers Compensation
Act 1998)
MATTER NO:
009648/12
APPLICANT:
Lindsay Glenn Andrews
RESPONDENT:
Rail Corporation NSW
DATE OF DETERMINATION: 29 October 2013
CITATION:
[2013] NSWWCC 407
The Commission determines:
1.
There will be an award for the respondent.
2.
No order as to costs.
A brief statement is attached to this determination setting out the Commission‟s
reasons for the determination.
I CERTIFY THAT THIS PAGE AND THE FOLLOWING PAGES IS A TRUE AND
ACCURATE RECORD OF THE CERTIFICATE OF DETERMINATION AND
REASONS FOR DECISION OF JOHN WYNYARD, ARBITRATOR, WORKERS
COMPENSATION COMMISSION.
Abu Sufian
Senior Dispute Services Officer
By Delegation of the Registrar
1
STATEMENT OF REASONS
BACKGROUND TO THE APPLICATION
1.
Lindsay Glenn Andrews (the applicant) brought a claim for weekly compensation
and s.60 expenses against the Rail Corporation NSW (the respondent). The
respondent is a self insurer.
2.
On 17 October 2011 the respondent issued a s.74 notice denying liability upon
the basis that there was no evidence (apart from the applicant‟s statement) which
indicated that the applicant was subjected to unfair treatment or was bullied or
harassed. In that regard the respondent relied upon sections 4 and 9A of the
1987 Act.
3.
The s.74 notice also alleged that whilst disciplinary action was taken against the
applicant, such action had been reasonable and the respondent accordingly
claimed the benefit of s.11A of the 1987 Act.
4.
The applicant pleaded that he had suffered psychological injury between 2001
and 26 July 2010, which latter date was alleged to be a „deemed‟ date.
5.
The applicant claimed weekly compensation from 26 July 2010 to 9 April 2012
in varying amounts. The claim also alleged a continuing loss from 1 July 2012
due to the alleged failure by the respondent to promote the applicant to a higher
grade.
6.
In the light of the issue of the s.74 notice an Application to Resolve a Dispute
(the Application) was lodged on 21 August 2012 and a Reply thereto was lodged
by the respondent on 11 September 2012.
ISSUES FOR DETERMINATION
Matters Previously Notified as Disputed
(a)
The respondent denied that it was the cause of any psychological
injury or, if the disciplinary action had been the cause, that the
respondent had the benefit of the defence in s.11A of the 1987 in that
its conduct was reasonable disciplinary action.
PROCEDURE BEFORE THE COMMISSION
7.
The matter was heard at conciliation arbitration conference on 26 June 2013.
Mr Rohan de Meyrick of counsel instructed by Messrs TD Kelly & Co,
solicitors, appeared for the applicant and Mr Alan Parker of counsel instructed
by Messrs Sparke Helmore, lawyers, appeared for the respondent.
2
8.
I am satisfied that the parties to the dispute understood the nature of the
application and the legal implications of any assertion made in the information
supplied. I have used my best endeavours in attempting to bring the parties to
the dispute to a settlement acceptable to all of them. I am satisfied that the
parties have had sufficient opportunity to explore settlement and that they have
been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
9.
The following documents were in evidence before the Commission and taken
into account in making this determination:
For the applicant:

Application to Resolve a Dispute and attached documents (the
Application) (Exhibit A);
Application to Admit Late Documents dated 15 March 2013 and
documents contained therein (Exhibit B), and
Application to Admit Late Documents dated 25 June 2013 and
documents contained therein (Exhibit C).


For the respondent:



Reply and attached documents (Exhibit 1);
Application to Admit Late Documents dated 21 September 2012 and
documents contained therein (Exhibit 2);
Application to Admit Late Documents dated 18 June 2013 and
documents contained therein (Exhibit 3).
Oral Evidence
10.
The parties declined to call oral evidence.
FINDINGS AND REASONS
Scope of claim
11.
1
Although the applicant maintained in the Application to Resolve a Dispute that
his psychiatric condition had been caused by events during the period 2001-26
July 2010, there is no record, with the exception of the 2002 report of Dr Peter
Parras1, to which I will return, of any medical or other complaint recording such a
condition before 14 August 2010. The applicant lodged a claim form on 7
Exhibit A. p.1
3
September 2010, signed by him, which alleged three particulars of injury.2 These
were expressed as follows:“1. Nature and conditions of employment causing stress and anxiety.
2. Harassment and intimidation by management.
3. Unreasonably conduct (sic) in disciplinary matter.”
12.
The applicant claimed in that claim form that these events had occurred between
„1976‟ and 2010. As there is no evidence relating to the applicant‟s medical
condition prior to 2002, I assume that the 1976 date was an error.
13.
The applicant was born in 1957, leaving school at 15 years of age. After a year
in the army and doing odd factory jobs, at the age of 19 he joined the
respondent which was then known as the Public Transport Commission. After
first working as a labourer and fitter‟s assistant he worked his way up to
becoming a Production Control Assistant. In his first statement dated 5
September 2011 the applicant said:-3
“Throughout my time at Rail Corp I have always been a dedicated
employee, keen to advance my career. When opportunities arose to
obtain further qualifications or experience I was always keen to pursue
them.”
The workplace
14.
This attitude was noted by his fellow workers. David James Butchard, a
manager of the applicant, agreed that the applicant was a „conscientious and
hard worker‟4 and a „decent employee.‟ Alan Anthony Pasfield, the
applicant‟s manager said that the applicant was a „hard and honest worker‟5
and that he was, „besides being a passionate Rabbitohs supporter, a passionate
employee too.‟ Mr Pasfield found the applicant, who specialised in difficult
inventory purchases, to be very thorough.6
15.
Mr Pasfield also recalled some tension between a Mr Selvan Mills and the
applicant. In his statement of 9 May 2011 he recalled that conversation became
heated between the two „on a couple of occasions.‟ Mr Pasfield said7:“… I note that Selvan would walk away and not think any more
about the issue but I think Lindsay mulled over things.
2
Exhibit A p.72
Exhibit A [4]
4
Exhibit 1 p.137 [7]
5
Exhibit 1 p.124 [25]
6
Exhibit 1 p.121 [7]
7
Exhibit 1 p. 125 [31 -34]
3
4
31. Selvan would directly speak to Lindsay regarding workrelated issues because they appeared to have a clash in
personalities. I believe Lindsay took too (sic) heart any
discussions he had with Selvan.
32. I now don‟t recall the details of those heated exchange (sic)
but I remember that after one of their incidents I told Lindsay
that he needed to think before he spoke.
33. On that date they had quite a heated discussion about
something quite trivial that escalated because the pair of them
would not back down.
34. I don‟t clearly recall if Lindsay ever complained to me that
Selvan was a bully or harassed him. He complained about
things in general which Selvan said but several people have
made similar comments to me about Selvan as well.”
16.
Mr Selvendran Amirthanayagam Mills, known as Selvan, was a further
manager of the applicant. Mr Mills described the relationship as follows8:“Today, [the applicant] reports to Manager of Purchasing, Ken
Griffiths, who reports to the Manager Accounts Payable who reports to
me. The current Manager of Accounts Payable is Dean Greethead. He
replaced Alan Pasfield who Lindsay reported to for a long period.”
17.
As will be seen, the applicant implicated Mr Mills as one of the people
responsible for his psychiatric injury. Mr Mills in his statement did note that the
applicant and Emmanuel Papaioannou had some issues regarding the amount of
work they were doing because other people were away. Mr Mills9 noted that
there had been a request for overtime and an upgrade by both the applicant and
Mr Papaioannou which had been declined. Mr Mills said that he could
„vaguely‟ recall that there was an issue with the applicant‟s performance
development program, but that the process was managed by Alan Pasfield and
he had limited knowledge of it.
18.
The evidence does disclose an element of conflict between employees and
management level regarding involvement of the union. Mr Mills said10:“Sometime in 2009 or 2010 a new paid union member (sic), Greg,
commenced talks with union members regarding a range of workrelated issues including management.
8
Exhibit 1 p.113 [10]
Exhibit 1. 114
10
Exhibit 1 p.115 [22]
9
5
23. The talks then became difficult to manage because they
meetings (sic) were going on regularly for long periods and behind
closed doors.
24. Staff also refused to return to work whilst the meetings were
being held, even though none were discussed or approved by
management.
25. By early-2010, department heads were complaining to me that
they were struggling to manage their team members‟ involvement
in union talks etc.
26. Management then issued a directive that employees were
required to seek permission from management prior to proceedings
with any union meeting.
27. This then caused conflict and tension between management and
personnel, including [the applicant] who felt we were interfering.
28. I recall that on one occasion I broke up a meeting between the
union delegate and [the applicant] and several co-workers. I
pointed out that the meeting was unauthorised etc. I know [the
applicant] was not happy with my involvement on this date. I think
he complained to a General Manager Steven Beasley.”
19.
Mr Mills then recounted that he had notes recording that on 3 December 2009
the applicant verbally abused him following an event involving an email that
was sent to employees which limited union talks to 30 minutes. This abuse led
to Mr Mills sending an email to the General Manager complaining about the
applicant‟s tone and manner. Mr Mills said11:“I found [the applicant] to a reactive employee on that date. He appears
to blame Rail Corp for his problems.”
20.
Mr Mills recalled that the applicant had an issue with persons from outside Rail
Corp applying for and securing positions within Rail Corp as the applicant
thought that internal applicants should be appointed to vacant positions.
21.
Mr Mills then recounted how, during a period when he was acting General
Manager whilst Mr Beasley was away, he was notified „by our investigation
team‟ that the applicant was sending confidential details regarding Rail Corp‟s
contractors to the union delegate. Mr Mills said that his understanding was that
the applicant had inadvertently sent an email to an HR officer who forwarded it
to Rail Corp‟s investigation unit.
11
Exhibit 1 P.116 [33]
6
22.
Mr Mills stated that he was told by investigators that the applicant had said that
there would be a conflict of interest if Mr Mills was involved in the investigation
process. Mr Mills said that although he did not know what he was referring to,
he was happy not to be involved. He said12:“The process of determining the investigation took 3 to 4 months to
complete. I vaguely recall that at the end of it [the applicant] lost two
weeks pay over the incident but then successfully appealed the
outcome.”
23.
Mr Mills also recounted an incident at a Christmas party in 2009 when, in a
social soccer game, Mr Mills accidentally stepped on the applicant‟s ankle so
that the applicant could no longer partake in the game. Mr Mills said he did
not recall that the incident became an issue, as it was an accident.
24.
Mr Mills also rejected a claim made by the applicant that Mr Mills had „black
circled‟ people involved with the union movement. Mr Mills also denied that
he had harassed the applicant relating to the soccer incident or that he ever
falsified time notes and pay rates, once again as alleged by the applicant, as
will be seen. 13
25.
It can readily be seen that the witnesses generally thought highly of the
applicant, but that he did come under notice from time to time.
The allegations
26.
The various confrontations related above were alluded to in the applicant‟s
claim. Part 4 of the Application to Resolve a Dispute gave the following
description as to how the injury occurred:„The nature and conditions of the Applicant‟s Work with the
Respondent as detailed in the statement attached hereto pages 52-62
and in particular:(a) The general nature and stresses of the Applicant‟s duties in the
Purchasing Section since about 2001,
(b) Harassment, bullying and intimidation by management,
(c) The conduct and delay of the disciplinary allegation made against
the Applicant in April 2010,
(d) The continual denial of interviews for procurement positions
despite having good PDP results; and
(e) Ignoring the applicant‟s requests for PDP assessment.”
12
13
Exhibit 1 p.117 [40
Exhibit 1 p.118
7
27.
The applicant has lodged three statements dated 5 September 2011, 15 March
2012 and 16 August 2012 respectively. He also relied on a statement by
Emanouel Papaioannou dated 11 December 2009, and a further statement by a
Neil Zadravec dated 5 December 2011. It would be difficult to describe either
of these statements of the latter two gentlemen as being objective, but their
content confirms that there was at times some disagreement with what Mr
Zadravec described as „the Project Manager‟ and although Mr Papaioannou
restricted his evidence to events involving Mr Mills, Mr Zadravec did not
mention Mr Mills but spoke about one Karl Scharf, who was clearly unpopular
with Mr Zadravec. Mr Papaioannou related an argument with Mr Mills that
Mr Papaioannou and the applicant had been involved in. Mr Papaioannou
made some critical comments about Mr Mills.
28.
The statements made by the applicant related in considerable detail his
enthusiasm for the job in the 37 years he had been employed by the
respondent. However, he said that when he was seconded to the Business
Financial Services and Purchasing Section in early 2001, he was made to feel
very unwelcome. He said he was made to feel like an outsider, but that Mr
Papaioannou eventually helped him to learn the role and eventually things
became a little easier.14
29.
However the applicant nonetheless complained of being regularly abused,
harassed and put under increasing pressure by a Mr David Byrnes, a fellow
employee who apparently had a bad temper. The applicant gave illustrations
of Mr Byrnes‟ bad temper and said that this abuse continued until Mr Byrnes
left the respondent in 2009. However, the applicant also had some issues with
Mr Karl Scharf, the gentleman mentioned by Mr Zadravec. The applicant
described receiving abuse over the telephone. The applicant said that he began
to become quite stressed and depressed. He did not say when the symptoms
first occurred, but he said that he complained to a Mr Ken Griffiths about being
abused on a number of occasions around 2002, Mr Griffiths being the
Purchasing Supervisor. Having described this alleged abuse the applicant
said:-15
“Notwithstanding my treatment by some of the people in the office I
actually enjoyed my role. I was still keen to advance my career and so
I began to apply to act in hire purchasing roles. I knew also if I got one
of the roles I would likely be stationed on a different floor.”
30.
14
15
He said that from 2002 onwards he developed an increasing concern as to his
prospects. He encountered repeated failed attempts to obtain higher positions,
which made him frustrated. He reflected on why he was not obtaining the
positions he applied for. However, he was placed on secondment in July 2005
to April 2006 as an Inventory Control Officer and from April 2006 was
Exhibit A p.39-40 [7-8]
Exhibit A p.54 [14]
8
appointed Purchasing Officer of the Financial Services Office of RailCorp,
presently located in Burwood. The applicant said that he was required to work
under Mr Mills.16
31.
The applicant concluded that those under Mr Mills‟ supervision (including the
applicant) were subjected to „direct and indirect harassment and intimidation.‟
He said17:“Mr Mills, for reasons unknown to me, would target those members of
RailCorp staff who, like me, were active in the Rail, Tram and Bus
Union or raise concerns about the EBA or safety issues.”
32.
The applicant criticised the management style of Mr Mills. The applicant
started to feel like he was constantly being watched and began to feel anxious
and jumpy in the workplace. He related the story of his left foot injury whilst
playing soccer at a Christmas party. He said that he did not want to play, but
that he was talked into it. The applicant described some curiosity from
management as to whether he intended to seek compensation. He thought that
the manager of Office Administration, Mr Joseph Morawski, repeatedly
approached him on this subject. The applicant concluded that Mr Morawski
was bullying him on behalf of Mr Mills by proxy.18
33.
The applicant related a conversation with Mr Morawski who indeed indicated
that Mr Mills had been pressuring him to find out the applicant‟s intentions.19
A further issue arose in 2008 when the applicant was accused anonymously of
falsifying his timesheet and pay rate. An investigation apparently followed
which, the applicant said, exonerated him, although some irregularities were
found. The applicant reported also some tension with a Ms Margaret Lim
over the applicant‟s timesheets, which led to a further disagreement with Mr
Thornton. 20 The applicant alleged that he saw Dr Parras about this incident
and went off work for two days.
34.
The respondent lodged applications for leave made by the applicant since
2007.21 In summary, they were as follows:

6/12/2007. Application for leave from 3/12 to 5/12. This was
supported by a certificate from Dr Parras dated 5/12/2007 which
gave as a diagnosis „flu-type systemic viral illness.‟
30/4/2008. This was accompanied by a certificate of Dr Parras
dated 29/4/2008 certifying three days off from 28/4 to
16
Exhibit A p.55 [19]
Exhibit A p.55 [20]
18
Exhibit A p. 56 [26]
19
Exhibit A p.57 [26-28]
20
Exhibit A pp.57-59 [29-34]
21
Exhibit 1 pp.157-168
17
9




30/4/2008 because of „major dental pain due to root canal
infection.‟
16-5-2008. This was accompanied by a certificate from Dr
Parras dated 14/5/2008 certifying two days off 14/5 and
15/5/2008 for injury to the right olecranon.
23/10/2008. This was certified by Dr Parras dated 20/10/2008
for the period 20/10/2008 to 22/10/2008 in relation to a right
rotator cuff (shoulder) „strain.‟
On 23/4/2009 three days were taken off and the application was
accompanied by a further certificate from Dr Parras dated
21/4/2009 certifying time off from 20/4/2009 to 22/4/2009 on
the basis of abdominal and back pain „for investigation.‟
The final leave application form was dated 12/4/2010 relating to
three days off, certified by Dr Parras on 7/4/2010 as being for
7/4/2010 to 9/4/2010. This certified a flu-type viral illness.
35.
None of those leave applications related on their face to an incident involving
either Ms Lim, Mr Thornton or indeed the pressure of work at all.
36.
The applicant described how when the Supervising Purchasing Officer, Ken
Griffiths, left in 2007, he and Mr Papaioannou were made Acting Supervising
Purchasing Officers, rotating every six months. This involved an increase in
pay and the applicant said he was pleased that his career was advancing,
although he was dissatisfied that his request for assessments was ignored.
The medical case
37.
As already noted the claim form was lodged on 7 September 2010. It was
lodged following the issue by Dr Parras of a series of WorkCover certificates
certifying that the applicant suffered from a psychological condition which
began on 14 August 2010 and continued up to 28 July 2012.22 The initial
certificate of 14 August 2010 described the injury as follows:“Psychological injury sustained by worker due to alleged harassment and
intimidation on an ongoing basis by senior management in financial
services.”
38.
Dr Parras referred the applicant to a Clinical Psychologist, Amanda J. Hall under
a G.P. Mental Health Care Plan. She began seeing the applicant on 15 September
2010 and reported on 26 November 2010 that there had been six sessions with
her. When she first was consulted on 15 September 2010 she said23:“Mr Andrews presents with stress, anxiety, depression and problems at
work. He reports that these difficulties are long-standing and attributes
22
23
Exhibit A pp.23-50
Exhibit A p.3
10
them to a series of incidents at his workplace. He is currently employed as
a Purchasing Officer at Railcorp and he alleges that he has experienced
bullying, discrimination and harassment in the workplace.”
39.
Ms Hall gave no further details and I find such a generalised non specific history
to be of very little weight indeed in assessing the true factual background of this
case.
40.
Dr Parras also sent the applicant to see Dr Robyn Bradley who reported to Dr
Parras on 17 March 2011 and who also supplied a medico-legal opinion to the
applicant‟s solicitors. Dr Bradley did not indicate when it was that she first saw
the applicant, but I presume it was sometime around the date of her report, 17
March 2011. The history she took was as follows24:“He presented with a history of work stress, predominantly in the last five
years. He says he has worked for Railcorp for 34 years. He says that he
has always loved his job and he has enjoyed a progression of jobs with
Railcorp over that time.
He gave me typed information of events that have happened in the last
five years which have led to his present situation, but as you understand
are very complex. It appears that Lindsay is now working in Business
Services and for the last six years has been under a manager who he
alleges is very difficult to work for. He feels that he has been bullied,
harassed and targeted in the workplace by the manger over this time and
this has led to a very severe workplace stress, loss of confidence,
depression and in the end an inability to attend his work. Lindsay believes
that he has been unfairly targeted at work in many ways, but a particular
incident followed an event at the Christmas party in 2006 and continued
from there.”
41.
Dr Bradley then added:“There was another major event which occurred in January 2010, when
Lindsay accidentally forwarded an inappropriate email to the union. This
was brought to his attention in March 2010 and led to a long and torturous
process with the case being resolved …”
42.
In her later report of 18 January 2012 to the applicant‟s solicitors, Dr Bradley,
reporting on a series of consultations since 17 March 2011, said:-25
“[The applicant] was able to accept more realistically that the bullying and
harassment issues which caused his distress were very much a part of the
culture at work which was initiated by his manager. In another sense he
24
25
Exhibit A. p14
Exhibit A p.19
11
was very keen to get back to work as soon as possible as he really enjoys
this work, his workmates and the interactions in the workplace.”
43.
This history was conveyed to Dr Bradley in a consultation in May 2011. By 14
November 2011 she reported the applicant had become apprehensive as to the
workers compensation proceedings, which were then pending (I take to be earlier
proceedings that were ultimately discontinued before Arbitrator Garth Brown on
20 March 2012.)
44.
Dr Bradley indicated that the applicant was still keen to get back to work but that
he:„continued to ruminate on the problems of work, his perceived bullying,
harassment and a culture where he said employees beneath the manager
were quite often called offensive names which upset him considerably.‟
45.
That was the extent of the medical case advanced on behalf of the applicant, and I
note that the opinions of Dr Bradley and Ms Hall post date the institution of
disciplinary proceedings by the respondent in April 2010. The applicant also
relied upon an opinion of Dr Dinnen, consultant psychiatrist, which I will come to
presently. The applicant‟s most enthusiastic supporter was his G.P., Dr Parras.
As noted above Dr Parras‟ first report was dated 4 March 2002, and is the only
evidence in the case that records any possible psychological problems prior to the
issue of the medical certificate of 14 July 2010. The report said26:“This is to certify that Mr Andrews has been a patient of mine for over ten
years. He has been in general good health until the past twelve months.
After several counselling sessions over recent months it has become
apparent that Lindsay is beginning to feel the effects of adverse
circumstances which have been prevailing in his workplace…”
46.
The „adverse circumstances‟ which Dr Parras then went on to describe were of a
„deep seated frustration and anguish at failing to be acknowledged for his
longstanding loyalty and industrious work ethic.‟ Dr Parras then described those
effects, describing how the applicant felt that he had not been acknowledged for
his „outstanding loyalty and industrious work ethic.‟27
47.
Dr Parras described his patient as being an intelligent, mature gentleman. He
said28:-
26
Exhibit A p.1
Exhibit A p.1
28
Exhibit A p.2
27
12
“It seems to me that this man has given loyal and dedicated service and
now requires more mental stimulation commensurate with his knowledge
and experience.”
48.
Dr Parras thought that the applicant was suffering from a mixed anxiety and
depressed mood. Whether a specialist would agree with that diagnosis, is a
matter of speculation. However, it is confirmation that the applicant may then
have been suffering from a psychological condition.
49.
Its cause however was not said by Dr Parras to involve bullying and harassment,
but rather a grievance at the perceived ingratitude of his employers.
50.
The respondent relied upon three reports from Dr Inglis Howe Synnott,
Consultant Psychiatrist. In his first report dated 11 October 201029 Dr Synnott
gave a thorough and complete analysis of the cause of the applicant‟s condition.
Dr Synnott was aware that the claim related to „the general nature and stresses of
his duties dating from 1976 to July 2010 as well as harassment, bullying and
intimidation by management.‟ However, the history taken from the applicant did
not claim the development of significant psychological symptoms until December
2006/January 2007. Dr Synnott identified the cause of the symptoms as being the
alleged behaviour by a man whose initials were SM – clearly Selvan Mills.
51.
The applicant told Dr Synnott that from January 2007 to July 2010 the applicant‟s
psychological symptoms worsened when the applicant went to see his G.P. and
was put off work.
52.
It is apparent from reading Dr Synnott‟s first report that he was unaware that there
had been disciplinary proceedings brought against the applicant. It is also
apparent that he had not been told of them by the applicant.
53.
In a subsequent report dated 27 September 201130 Dr Synnott responded to a
letter from the respondent‟s solicitors containing the relevant documentation
regarding the existence of the aforesaid disciplinary action. Having read that
material, Dr Synnott said:-31
“With the benefit of the additional information, I am now of the opinion
that the ‘incident in April 2010 when Mr Andrews was handed the letter
advising of the disciplinary investigation’ was in fact ‘pivotal’ in
exacerbating the psychological symptoms.
The additional information leads me to the view that this particular
incident was far more significant than I was aware – and you would note
29
Exhibit 1 p. 1
Exhibit 1 p.12
31
Exhibit 1 p.13
30
13
that it was not raised with me in my consultation with Mr Andrews on 12
October 2010.”
54.
In a third report dated 19 September 201232 Dr Synnott was asked to advise on
further reports that had been supplied to him, and said that his opinion remained
the same.
55.
The disciplinary action referred to by Dr Synnott, and the material he saw, related
to a sequence of events which began with receipt by the applicant of a letter dated
7 April 2010 from the senior investigator, investigations unit, with RailCorp
investigations, Mr Derek Wilson. It ended on 16 February 2011 with a successful
action before Mr M. Oakman, Acting Commissioner, Transport Appeal Board,
when the applicant won his appeal against the disciplinary decision to suspend
him for two weeks. A penalty of $225 was substituted instead.
The defence
56.
In a most comprehensive s.74 notice the respondent declined liability. The author
of the notice referred amongst other things to the history of the disciplinary
proceedings. The notice asserted that there was no evidence (apart from the
applicant‟s statement) indicating that he was subjected to unfair treatment or was
bullied or harassed. The s.74 notice asserted that the evidence from both Dr
Synnott and Dr Parras suggested that the psychological symptoms arose directly
after disciplinary proceedings were commenced.
57.
It then raised the defence available to it in those circumstances that its actions
were reasonable and that it therefore had the protection of s.11A of the 1987 Act.
58.
Section 11A provides relevantly:“11A No compensation for psychological injury caused by reasonable
actions of employer
(1) 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.”
59.
Although the respondent indicated that it was still investigating some allegations
and that a review s.74 notice „may‟ be issued after investigation, no further s.74
notice did issue.
Discussion
32
Exhibit 2 p.1
14
60.
It can be seen from the evidence given by the applicant‟s workmates and
superiors that there was a ready source of events between 2002 and 2010 which a
psychologically injured person could have misperceived, whereas the
respondent‟s witnesses took no more out of those events than their being just
another example of the daily intercourse that they had with their work colleagues
at the work place.
61.
In its s.74 notice the respondent did not accept that any injury had occurred. It
noted in any event that the opinions of both Dr Parras and Dr Synnott were that
any alleged psychological injury occurred directly following advice given to
the applicant that he was to be the subject of disciplinary proceedings. This
was the „pivotal‟ matter that both Dr Parras and Dr Synnott agreed set in train
the psychological injury. The respondent accordingly pleaded the benefit of
s.11A of the 1987 Act.
62.
However, had the applicant already been psychologically injured by 2010, as
he alleged, it could be argued that his reaction to the rough and tumble of
everyday life at work was misperceived by him as bullying, harassment and
intimidation. He would thus be entitled to succeed, as he had already suffered
a psychological injury prior to the advent of the disciplinary proceedings. The
injury could not then have been described as „wholly or predominantly
caused,‟ by the disciplinary proceedings within the terminology of s.11A(1).
63.
In that regard, the respondent submitted that there was no contemporaneous
evidence which corroborated the complaints made within the applicant‟s
statements as to alleged effect of the various matters that he now says caused
his psychological injury between the years of 2002 and 2010, notwithstanding
the ostensible support given in the reports of Dr Parras.
64.
It is clear that such support as the applicant has received from his medical
specialists has been given ex post facto – after the commencement of the
disciplinary proceedings against him. The effect of that commencement is such
that I accept it caused a psychological injury.
Dr Parras
65.
Dr Parras had been by then the applicant‟s G.P. for almost 20 years. He gave
unstinting support to the applicant and said in reply to a request for particulars
from the respondent on 13 December 2010, amongst other things, that the
applicant felt unfairly victimised when the disciplinary proceedings were brought.
Dr Parras said:“This affected him profoundly given that he had been the victim of verbal
bullying and intimidation over the previous three years.”
15
66.
Dr Parras gave a psychiatric opinion as to the applicant‟s condition and said33:“10. The contributing causative factor in the pathogenesis of the patient‟s
condition is the alleged unreasonable, unwarranted and unjustifiable
treatment meted out to him by one or more superior staff members at
Railcorp over a number of years culminating in [the commencement of
disciplinary proceedings.”
67.
Dr Parras was careful to point out that the commencement of the disciplinary
proceedings was the „pivotal‟ contributing factor to the patient‟s condition.34
68.
In a later medico-legal opinion of 30 July 201235, as to the respondent‟s allegation
that the applicant‟s condition had been predominantly caused by the disciplinary
action taken against him, and not to the matters preceding it, Dr Parras assumed
that the basis of the respondent‟s claim was because his clinical notes did not
reveal any history related to work stress prior to April 2010. The reason there was
no relevant reference in his notes, Dr Parras explained, was because clinical notes
are rarely able to encompass every detail of the consultation.
69.
Dr Parras asserted that with the aid of his letter of 200136 he believed that he
could say with certainty that the applicant‟s frequent attendances at his surgery
with an array of symptoms clearly reflected his underlying condition of mixed
anxiety and depression. These complaints were identified as „headaches, chest
pains, insomnia, and flu-like symptoms.‟
70.
In that regard I note the contents of the certificates given by Dr Parras for the
various periods off work that the applicant had prior to April 2010, discussed
above.37 With respect, even the certification for the flu (for which there were only
two entries from a total of six) did not stipulate that there were headaches, chest
pains, or insomnia - rather that the applicant was suffering from a viral illness.
71.
Dr Parras indicated that there was often mention of work related issues causing
considerable stress and angst. Dr Parras said that in the course of „many
consultations over the past ten years‟ they would discuss matters of concern at
work prior to detailing his physical complaints.
72.
With respect to Dr Parras, it might be expected that if a patient were presenting
often with complaints that clearly reflected an underlying condition of mixed
anxiety and depression, one would have thought that there would be some
mention of it in the clinical notes, granting the necessity to be brief in their
33
Exhibit A p.13
Exhibit A p.30 – report of 13 December 2010.
35
Exhibit A p.21
36
I assume Dr Parras was referring to his letter of 4 March 2002 at Exhibit A, p.1. There is no report or
letter dated 2001.
37
See [34] above
34
16
making. That he failed to make them indicates that the discussions to which he
referred regarding his employment were no more than the usual casual
conversation between a doctor and his patient of longstanding, which were not
intended, nor taken, to convey the presence or development of a psychiatric
injury.
73.
To that extent, I accept that such discussions may have taken place, but I reject
the inference advanced by Dr Parras that he would now place on those discussions
- that they were indicative of psychological disturbance. Had that been the case
then I have no doubt that Dr Parras would have made a note accordingly –
particularly as he had already noted the presence of a psychological condition,
albeit for different reasons, in 2002. There is no evidence before me that would
indicate that the reasons for the applicant‟s attendances were connected with a
psychological condition. Indeed as has been noted above, four out of the six
certificates provided by Dr Parras related to orthopaedic or dental issues.38
Bullying and harassment
74.
The applicant has had a long and loyal history with the respondent and is a man
who is dedicated to his job. He may well have relayed to Dr Parras the various
incidents that occurred at work in casual conversation. He was clearly
passionate about his work and was anxious to progress his career. The question is
whether the applicant continued to suffer from a psychological condition
following the report of Dr Parras of 4 March 2002 through the next eight years
leading up to the events of April 2010 and beyond. If he had, then the applicant
might have had the benefit of the decision in State Transit Authority of New South
Wales v Fritzi Chemler,39 in that although the fellow workers may not have
appreciated it, their actions were misperceived by the applicant as constituting
bullying, harassment and intimidation.
75.
I regret I cannot draw that inference. Dr Parras, being clearly a responsible and
caring practitioner, and having already made a diagnosis that his patient was
suffering from a psychological disorder, in my view would subsequently have
referred to that condition in his notes, had it been relevant.
76.
I note further that the opinion of Dr Parras as to the cause of that 2002 diagnosis
was different in any event from that now alleged, as discussed above.40 I do not
accept therefore that the applicant suffered a psychological injury from the
stresses of his duties with the respondent since about 2001, nor do I find that the
everyday interaction of the applicant with his colleagues constituted harassment,
bullying or intimidation by management.
38
See [37] above
[2007] NSW CA 249
40
See [45-49] above
39
17
77.
I have related excerpts from the applicant‟s statements in which, although he
expressed complaints about the behaviour of some of his superiors, he was
nonetheless happy to be at work and that his career was advancing. 41
That is not consistent with the allegation that the workplace environment was
causing him a psychological injury.
78.
Further, I do not accept that the applicant perceived that interaction as being such.
His statements have been made with the benefit of hindsight and after his
relationship with Rail Corp had deteriorated following the institution of the
disciplinary proceedings. The support of Dr Parras similarly suffers from being
given ex post facto after the disciplinary proceedings had commenced. Similarly
the reports of all healthcare professionals garnered in his support were all
obtained after that event.
79.
I am satisfied therefore that it was the commencement of the disciplinary
proceedings in April 2010 that led to the onset of the applicant‟s psychological
condition. For the reasons given above I reject the opinion of Dr Parras, that „the
contributing causative factor in the pathogenesis of the patient‟s condition is the
alleged unreasonable, unwarranted and unjustifiable treatment metered out to him
by one or more superior staff meetings at Rail Corp over a number of years
culminating in the incident of April 2010 ......‟ However, I accept his statement
when he continued:„The latter incident however is the pivotal contributing factor…‟42
80.
I am satisfied that indeed the institution of the disciplinary proceedings was, to
use Dr Parras‟ term, „pivotal‟ in the development of the applicant‟s psychological
injury. It was thus the disciplinary action that was wholly or predominantly
responsible for the onset. This opinion was also held by Dr Synnott. I regard the
opinions expressed by Dr Synnott in his report of 12 October 2010 as being of
limited probative value in view of the fact that he had not then been given the
correct history by the applicant. Dr Synnott expressed his reservations at page 7
of the report43 when he said in answer to the following question:“If the condition has been substantially contributed to by employment, has
the condition arisen out of any of the circumstances set out in the attached
extract found in s.11A of the legislation?”
81.
Dr Synnott has answered:“I am unable to confidently answer this question – it appears there has
been a different focus here by Mr Andrews and Rail Corp.
41
See eg [28,29 and 36] above
Exhibit A p.30, report dated 13-12-2010
43
Reply p.7
42
18
I note the letter to Rail Corp (7 April 2010) which sets out the issues
relating to an alleged „breach of Rail Corp Code of Conduct‟ by Mr
Andrews – it appears that these actions were reasonable as determined by
s.11A of the legislation. However, Mr Andrews did not mention this
particular situation to me at the consultation on 12 October 2010.
Mr Andrews claims the workplace difficulties had a history of three and a
half years – and that he had been talking to his General Practitioner
regarding the workplace situation and his psychological difficulties since
January 2007. Specifically, he identified the behaviour of SM –
characterising it as „bullying and harassment‟ – as the cause for his
ongoing psychological distress and being the major factor leading to him
going off work in July 2010. However, I have no objective factual
account to confirm this history.”
82.
As I have found, there was no such account, and the reservations expressed by Dr
Synnott were well founded. In a further supplementary report of 27 September
201144 Dr Synnott was given further information which included the factual
investigation which contained the statements of the Rail Corp personnel, and the
Transport Appeals Board decision. Dr Synnott said:“With the benefit of the additional information, I am now of the opinion
that the „incident in April 2010 when Mr Andrews was handed the letter
advising of the disciplinary investigation‟ was in fact „pivotal‟ in
exacerbating the psychological symptoms.
The addition information leads me to the view that this particular incident
was far more significant than I was aware – and you would note that it was
not raised with me in my consultation with Mr Andrews on 12 October
2010.”
83.
I accept that the disciplinary proceedings have been the cause of the applicant‟s
psychological symptoms. However I do not accept that such symptoms were
evident prior to the commencement of those proceedings.
84.
The applicant also relied on the report of Consultant Psychologist, Dr Anthony
Dinnen dated 7 March 2013.45 Dr Dinnen took a consistent history of a somewhat
general nature. Dr Dinnen noted the history of personality clashes with Mr Mills
and again took a history that those confrontations were in relation to union
matters. He also took a history of Mr Andrews‟ grievance as to the manner in
which promotions occurred within the organisation. Dr Dinnen, in taking such a
general history however was in error when he said:-46
44
Exhibit 1 p.12
Exhibit B
46
P. 2
45
19
“As a result of this over the years the patient said he got depressed and
sick. He went off work and didn‟t want to go back.”
85.
Dr Dinnen did not seem to appreciate that it was not until the disciplinary
proceedings were instituted that the applicant was certified to be suffering from
a psychological injury. Dr Dinnen noted47 that Dr Synnott had stated in his
report of 27 September 2010 that the letter of 12 April 2010 instituting the
disciplinary proceedings was „pivotal‟ in exacerbating the applicant‟s
psychological symptoms. Dr Dinnen disagreed with that opinion. He said:“It is a moot point as to whether the disciplinary proceedings were by
way of further harassment or bullying or were a reflection of poor
performance.”
86.
With respect, I reject that opinion. Dr Dinnen did not seem to appreciate that it
was not only Dr Synnott‟s opinion, but rather that Dr Synnott was confirming
the opinion given by Dr Parras on 13 December 2010 that it was the institution
of disciplinary proceedings in April 2010 that was the pivotal contributory
factor in the development of the injury.
The disciplinary matter
87.
The question therefore devolves as to whether the actions of the respondent were
reasonable or not pursuant to s.11A. In this regard the relevant history was given
by Mr M. Oakman, AC, of the Transport Appeal Board New South Wales in
Andrews v Rail Corp [2011] NSW TAB 4.48 Mr Oakman heard the applicant‟s
appeal against the penalty issued by the employer against the applicant as a result
of the disciplinary action. At pages 2 and 3 of the decision Mr Oakman set out in
some detail the relevant history to which I have had regard, and which I adopt. In
short, proceedings were invoked by letter of 7 April 2010 by the respondent as a
result of three separate instances of the applicant distributing to fellow employees
(and one non employee) who were not authorised to receive them, emails that
were marked „commercial-in-confidence,‟.
88.
Mr Oakman found that the applicant did not believe that the recipients were so
unauthorised as he believed they received similar material in the course of their
union work.49 The Acting Chairman found that the applicant‟s motivation had
been for the following reasons:„Because he had a number of concerns such as seeking a job upgrade;
losing his job as part of Rail Corp restructures; the job opportunities would
47
P. 5
Exhibit 1 p.169
49
Judgment Oakman A.C. Exhibit 1 p.174 [20]
48
20
go to contractors; the use of contractors over fulltime staff; to identify cost
savings as part of the EDA process with an eye to the job security of
permanent employees over contractors. In his evidence to the Board he
also said he wanted to show how much contractors were costing by way of
supporting the view of his job grade.‟50
89.
The Acting Chairman found that the applicant accepted that he had been in
error.51 Having read the material before me I adopt the comments of the Acting
Chairman, whom I note had the added advantage of hearing evidence from the
applicant.
90.
It was found that the nature of the documents were indeed confidential, relating as
they did to expenditure of money, so that the Acting Chairman accordingly
declined to deal with the matter more leniently by way of a warning. He imposed
instead of the two weeks suspension that had been given by the employer, a fine
of $225.
Reasonable action
91.
For the applicant Mr De Meyrick submitted that the disciplinary action was not
„entirely‟ reasonable. He submitted that the applicant did not immediately go
off on stress leave when he received the letter of 12 April 2010 advising him
that disciplinary proceedings were being undertaken but not for some months during which time, Mr De Meyrick submitted, the process had „dragged on.‟
92.
The applicant described how he was given the letter of 7 April 2010 on 12
April 2010 by Mr John Sullings in Financial Services and that the applicant
became upset and worried once he received that letter. He said that the
uncertainty of his position now he was under investigation caused his
depression and anxiety to get worse and worse.52
93.
The applicant acknowledged that he was contacted by letter on 7 June 2010.
The letter was from Mr Derek Wilson, the Senior Investigator, Investigations
Unit, and appeared to be a courtesy letter advising Mr Andrews that Mr
Wilson‟s investigation was complete, his report had been reviewed, and that it
was now being prepared for forwarding to the Disciplinary Review Panel.
94.
On 28 June 2010 the applicant was advised by email that he was not to act in
the Supervisor Purchasing role until the disciplinary procedure was completed.
The applicant said that he was due to start in that role on 1 July 2010, from
which I assume that he meant that the six monthly rota which had been in place
since 2007 had come up. The applicant lodged an email regarding the
suspension of the rotation from Mr Mills to Messrs Sullings and Passfield. It
50
Judgment Oakman A.C. Exhibit 1 p.174 [21]
Exhibit 1 p.174 [23]
52
Exhibit A p.47
51
21
indicated that Mr Papaioannou was to continue his secondment to the role of
Supervisor Purchaser whilst the matter of Lindsay Andrews was appropriately
dealt with through the DRP process. It noted that until the matter was fully
resolved and the final outcome was reviewed that Mr Andrews should not act
in that role.53
95.
It was not until 26 July 2010 that Dr Parras certified the applicant as being
unfit for work as a result of his psychological condition. The WorkCover
Certificate issued by Dr Parras, although dated 14 August 2010, certified the
applicant as being unfit from 26 July 2010.54
96.
With regard to the respondent not allowing the applicant to resume his position
in his rotation with Mr Papaioannou I am satisfied that the respondent‟s actions
were reasonable, in view of the fact that there was an investigation proceeding
about the unauthorised release of confidential information which Acting
Chairman Oakman described as the unauthorised release of material which
included confidential information regarding the expenditure of money;
confidential submissions relating to financial issues regarding the number of
contractors; and in one instance releasing a purchase order containing payment
details for a contractor.55
97.
The applicant was advised by letter on 10 August 2010 that the allegations had
been substantiated and that a two week suspension was appropriate.56 The
respondent also sent a copy of that letter to the applicant‟s solicitors, who had
on 9 August 2010 written advising written advising the respondent that the
applicant was under a great deal of stress because of the delay in notification of
the final result of the investigation.57
98.
Although some criticism was made that the process was somewhat drawn out I
think the notification of 7 June 2010 advising the applicant of the state of the
investigation showed that the respondent extended the courtesy of keeping the
applicant informed of the state of the investigation and was a reasonable
action.
99.
It does not appear that the applicant was advised that the letter of 10 August
was subject to an automatic review according to the disciplinary procedure and
a further letter of 16 September 2010 in identical terms was issued, which
apparently constituted the review.58
53
Exhibit A. p.82
Reply p.18
55
Decision of Oakman A.C. Exhibit 1 p.175 [29]
56
Exhibit A p.85
57
Exhibit A p.83
58
Exhibit A p.87
54
22
100.
On an overview therefore it can be seen that the applicant was notified of the
disciplinary proceedings on 12 April 2010, advised that the investigator‟s
report was completed on 7 June 2010 and notified of the result on 10 August
2010. I do not regard that timeframe as being excessive or unreasonable.
There has been no suggestion that the institution of the proceedings was of
itself unreasonable apart from the speculation of Dr Dinnen, which I have
already discussed. Indeed the applicant at no stage sought to defend the truth
of the allegations and his subsequent actions in appealing to the Transport
Appeal Board were not as to guilt, but as to the gravity of the penalty imposed.
101.
Although the applicant in his statement maintained the process was drawn out
and lasted almost ten months, in fact from the date of commencement of
proceedings to the date that the applicant was first advised of the outcome, 10
August 2010, the period was four months.
102.
I do not regard either the internal review nor the appeal to the Transport
Appeal Board as being a relevant consideration in assessing the reasonableness
of the timeframe between when the applicant was advised of the allegations
against him and when he first learnt what the results of the respondent‟s
investigations were.
103.
Mr De Meyrick referred me to Shore v Tumbarumba Shire Council.59 Acting
President Roche cited the following propositions in dealing with cases which
involve s.11A. He said:67. “Spigelman CJ (Hodgson and Bryson JJA agreeing) observed in
Department of Education & Training v Sinclair [2005] NSWCA 465; 4
DDCR 206 at [69], [97], [99] and [100] that one must look at the entire
process to see if it was reasonable action within s 11A. That includes
looking at the circumstances surrounding the action, both before and after
the action (Buxton v Bi-Lo Pty Ltd [1998] NSWCC 13; 16 NSWCCR 234
at 249; Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454 at 458).
68. Determining if an employer‟s actions were reasonable requires an
objective assessment of those actions (Jeffery v Lintipal Pty Ltd [2008]
NSWCA 138 at [50]). It is not enough that the employer has complied
with its own protocols; those protocols must be objectively reasonable
(Trustees of the Roman Catholic Church for the Diocese of MaitlandNewcastle v Broad [2008] NSWWCCPD 139; 7 DDCR 193 at [45], [47],
[48], and [63]).
69. There will be many cases where the particular action concerned was
justified but, having regard to the parties‟ previous relationship, the
process adopted was unreasonable (see, for example, Pirie v Franklins Ltd
59
[2013] NSW WCC PD 1 per Roche, Acting President
23
(2001) NSWCCR 346, where the dismissal of a longer-term employee
without prior notice or warning was held to have been unreasonable).”
104.
For the reasons given above, having considered the parties‟ previous
relationship, I am satisfied that the process adopted was reasonable.
105.
In Northern NSW Local Health Network v Heggie60 Basten JA observed at
[61]:61. “… The statutory language directs attention to whether the
psychological injury was caused by reasonable disciplinary action taken or
proposed to be taken by the employer. Ordinarily, the reasonableness of a
person's actions is assessed by reference to the circumstances known to
that person at the time, taking into account relevant information that the
person could have obtained had he or she made reasonable inquiries or
exercised reasonable care. The language does not readily lend itself to an
interpretation which would allow disciplinary action (or action of any
other kind identified in s 11A(1)) to be characterised as not reasonable
because of circumstances or events that could not have been known at the
time the employer took the action with respect to discipline.”
106.
In this context, there had been no complaint made to the respondent that the
applicant saw himself as being bullied and victimised. Neither were any leave
applications or other documentary material in the possession of the respondent
that could reasonably be said to have alerted it to these alleged circumstances.
I have already found that the only evidence capable of sustaining any
corroboration for the allegations made by the applicant, that is to say, the later
reports of Dr Parras, are unsatisfactory and I have rejected them.
107.
In any event the employer‟s actions in bringing the disciplinary proceedings
were reasonable, as the applicant accepted that his actions had been wrong and
constituted misconduct. The institution of the proceedings therefore can hardly
be said to be unreasonable. The only aspect of the respondent‟s conduct that
was said to be unreasonable was the alleged delay in the disciplinary process, a
submission that I have also rejected.
108.
The applicant also alleged that he suffered psychological injury because he was
continually denied interviews for procurement positions despite having good
PDP results; and because his requests for PDP assessments were ignored.61
109.
I have already found that I am not satisfied that the applicant has established
that he was suffering from any psychological condition prior to his receipt on
12 April 2010 of the letter instituting disciplinary proceedings dated 7 April
2010. It follows therefore that the disappointment expressed by the applicant
60
61
[2013] NSW CA 255
See [26] above
24
about his advancement was not of a nature that would have caused his
psychological condition.
110.
Were I in error in that regard, the respondent has the benefit of s.11A in this
regard also, relating as it does to reasonable action taken as to transfer,
promotion and performance appraisal, into which categories this complaint
falls. There is nothing in the evidence that satisfies me that the respondent was
unreasonable in the management of the applicant‟s applications. An employer
is entitled to take such decisions in the management of its organisation that it
deems fit. I am not satisfied that there was any element of malice, ill will or
any other unreasonable aspect to the decisions it took.
111.
For the above reasons there will be an award for the respondent.
Decision
1.
2.
There will be an award for the respondent.
No order as to costs.
25