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WORKERS COMPENSATION COMMISSION

CERTIFICATE OF DETERMINATION

Issued in accordance with section 294 of the Workplace Injury Management and Workers Compensation Act 1998

Matter Number: 2579/20 Applicant: Daisy Younan Respondent: Inner West Council Date of Determination: 29 September 2020 Citation: [2020] NSWWCC 343

The Commission determines: 1. The applicant sustained psychological injury arising out of or in the course of her

employment over the period from 2008 until 21 June 2018. 2. The whole or predominant cause of such injury was the reasonable action taken by the

respondent with respect to performance appraisal, transfer and discipline. 3. Award for the respondent. A statement is attached setting out the Commission’s reasons for the determination. Brett Batchelor Arbitrator 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 BRETT BATCHELOR, ARBITRATOR, WORKERS COMPENSATION COMMISSION.

L Golic Lucy Golic Acting Senior Dispute Services Officer As delegate of the Registrar

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STATEMENT OF REASONS BACKGROUND

1. Daisy Younan (the applicant/Mrs Younan) claims compensation for weekly benefits, expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) and lump sum compensation pursuant to s 66 of that Act as a result of primary psychological injury arising out of or in the course of her employment as a Planning and Building Technical Officer with the Inner West Council (the respondent/IWC), and one of its predecessors, the Ashfield Council, over the period from 2008 until 21 June 2018. She alleges that over this period she suffered bullying, abuse, discrimination, and harassment from other employees of these two councils, resulting in psychological injury deemed to have occurred on 21 June 2018. The last day on which the applicant worked for the respondent was 25 June 2018.

2. Ashfield Council, Leichardt Council and Marrickville Council merged in May 2016 to become IWC. Mrs Younan commenced employment with Ashfield Council on 17 January 2005 as a temporary Planning and Building Officer, a position which became permanent from 4 October 2005. She remained with Ashfield Council until 12 May 2016 when she transferred to IWC to become a permanent full-time Development Assessment Officer (Assessment Planner), carrying out her duty for the former Ashfield Council until 9 May 2017. From 10 May 2017, Mrs Younan was employed as permanent full-time Development Assessment Officer/Assessment Planner for IWC carrying out her duty concerning the former Leichardt and Ashfield Councils.

3. The applicant signed an Employee Claim Form on 24 August 2018, lodged with the

respondent’s insurer, StateCover Mutual Limited (StateCover)1, in which she claimed that “Due to years of abuse, discrimination, humiliation & harassment by previous and current superiors, I am now suffering from depression, loss of confidence & incapacity for work…” On 20 August 2018, StateCover sent the applicant a notice under the former s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability for the applicant’s claim for expenses pursuant to s 60 of the 1987 Act2. On 26 October 2018, StateCover sent the applicant a Dispute Review Notice pursuant to s 287A of the 1998 Act3 disputing liability for the applicant’s claim on the basis that any psychological injury was wholly or predominantly caused by reasonable action taken by IWC with respect to discipline, dismissal and/or performance appraisal, and that the injury was not therefore compensable pursuant to s 11A of the 1987 Act. Alternatively the insurer asserted that the applicant was not incapacitated for work as a result of her psychological injury.

4. Another dispute notice was issued to the applicant by StateCover on 20 December 2019 under s 78 of the 1998 Act4 raising the following further issues:

(a) whether the applicant had suffered a compensable psychological injury; (b) disputing that psychological injury, if established, was caused by employer

conduct (denied by the respondent) which could be described as bullying, harassment, intimidation, or unfair treatment;

(c) whether the applicant suffered a compensable injury pursuant to s 4 of the

1987 Act to which employment was a substantial contributing factor pursuant to s 9A of the 1987 Act, and

1 Application p 1068. 2 Application p 1066. 3 Application p 1083. 4 Application p 1087.

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(d) whether the applicant suffered a disease in the course of her employment which was the main contributing factor to the contraction or aggravation, acceleration, exacerbation or deterioration of the disease as required by s 4(b) of the 1987 Act.

5. At the arbitration hearing referred to hereunder, the respondent conceded that, whilst injury

per se is not in issue, the allegations of the applicant made in the Application to Resolve a Dispute (the Application) of abuse, discrimination and harassment by her employer are completely rejected, and the concession that the applicant sustained psychological injury is made solely in the context of it being an injury that has arisen wholly, or in the alternative predominantly, as a result of actions taken by the respondent, primarily in relation to performance appraisal and also discipline.

ISSUES FOR DETERMINATION 6. The parties agree that the following issues remain in dispute:

(a) Did the applicant suffer primary psychological injury arising out of or in the course of her employment with the respondent as a result of bullying, harassment, intimidation, or unfair treatment (s 4 of the 1987 Act)?

(b) Was the primary psychological injury suffered by the applicant wholly or predominantly as a result of reasonable action taken by the respondent with respect of performance appraisal, discipline and/or transfer?

(c) In the event that there is a finding in favour of the applicant that she is

entitled to an award of weekly benefits, what is the extent of her incapacity for work?

PROCEDURE BEFORE THE COMMISSION 7. I am satisfied that the parties to the dispute understand the nature of the application and the

legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

8. The parties attended an arbitration hearing on 29 July and 9 September 2010 conducted via telephone conference. Mr W Carney of counsel appeared for the applicant briefed by Mr D Eggins. The applicant attended on a separate line. Mr D Saul of counsel appeared for the respondent briefed by Ms K Ralph.

EVIDENCE Documentary evidence 9. The following documents were in evidence before the Commission and taken into account in

making this determination:

(a) the Application and attached documents, and (b) Reply and attached documents.

Oral evidence 10. There was no application to adduce oral evidence or to cross-examine the applicant.

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OUTLINE OF THE APPLICANT’S CASE 11. The applicant’s statement in support of her claim is dated 28 April 2020 consisting of 106

numbered paragraphs which, with its 71 attachments, is 1063 pages long5.

12. The applicant’s case is that from about 2008, when Mr Atalay Bas was employed by the then Ashfield Council as Manager for the then Planning and Building Department, what had been a very peaceful and pleasant working environment entirely was changed into an unbearable work environment by the bullying, discrimination, harassment, abuse and public humiliation to which she was subjected to by Mr Bas. When this became unbearable, the applicant lodged her first verbal compliant on 10 August 2011. This was followed, according to the applicant, by Mr Bas issuing to her a first warning on 18 November 2011 in response to which Mrs Younan lodged a grievance on 10 February 2012. This produced a written response from Mr Bas on 12 April 2012, which the applicant alleges contains inaccurate information.

13. Mr Bas issued a second warning on 25 July 2012 to which the applicant did not respond

as she says that, because Mr Bas had himself responded to her first grievance dated 10 February 2012, she had lost confidence in the Council dealing fairly with the matter.

14. The applicant made further complaints in respect of the conduct of Mr Bas in November 2015

(written) and September 2016 (verbal), the latter of which produced a “Formal Verbal Warning” on 2 November 2016. Further warnings followed from Mr Bas on 7 and 21 December 2016 followed by a specific incident in March 2017 between Mr Bas and the applicant which caused the applicant go on sick leave for about two months as she was psychologically unwell, and at which time she was assessed by Dr G Papatheodorakis, occupational medicine and injury management consultant. On her return to work, Mrs Younan was relocated to the Leichardt Service Centre of IWC, which had come into being in May 2016 following the merger of the former Ashfield, Marrickville and Leichardt Councils.

15. The applicant worked for Mrs Cowie between May and December 2017 and then came

under the supervision of Mr Ian Betts following a restructure which took place in December 2017. She alleges that she was treated in an abusive and condescending manner by Mr Betts which triggered depressive memories from the incidents that had occurred while she worked under the supervision of Mr Bas, and which affected her memory, concentration, ability to work and her performance. Mr Betts had concerns about Mrs Younan’s work performance and commenced having weekly meetings with her to address this. Mrs Younan was subject to a number of warnings, culminating in a final warning dated 21 June 2018. She went on sick leave as from 25 June 2018 and has not returned to work. She claims that she has suffered psychological injury as a result of what occurred in the course of her employment from 2008 to June 2018.

OUTLINE OF THE RESPONDENT’S CASE

16. The respondent’s case is that whatever happened in the period from 2008 until 2017, when

the applicant was under the supervision of Mr Bas, did not cause her to suffer psychological injury, and that such injury was wholly or predominantly caused by the reasonable actions of the respondent in the period from when Mrs Younan came under the supervision of Mr Betts from December 2017. These actions were with respect to performance appraisal and discipline and therefore provide a defence the applicant’s claim.

17. Alternatively, if there is a finding that the applicant suffered psychological injury in the period from 2008 onwards when under the supervision of Mr Bas (for which there is no medical corroboration), the actions of the respondent through Mr Bas and other employees were reasonable with respect to performance appraisal and discipline.

5 Application p 2.

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18. The respondent wholly disputes that the actions of its employees, principally those of Mr Bas and Mr Betts, in any way constituted abuse, discrimination, bullying or harassment as alleged by the applicant.

19. The respondent alleges that the applicant demonstrated a pattern of behaviour that

whenever she was the subject to performance appraisal or objectively reasonable attempts to correct her performance, either from Mr Bas or Mr Betts, she refused to accept them. Mrs Younan has seen such appraisal or attempts as an attack on her personally and lodged grievance complaints with the respondent whenever she was the subject of performance appraisal or discipline. These complaints were investigated by the respondent and found to have no substance. The respondent alleges that the applicant falsely claims that there was a conspiracy to get rid of her from IWC’s employ.

SUBMISSIONS 20. The submissions of the parties are recorded in the transcript of 29 July 202 (T1) and

9 September 2020 (T2), a copy of which can be obtained on request. I will not repeat them in full. In summary, they are as follows.

Respondent 21. In view of the onus on it to make out its defence under s 11A of the 1987 Act, the respondent

proceeded first with its submissions.

22. The respondent relies on what the Court of Appeal stated from [52] in Northern NSW Local Health Network v Heggie6 in respect of its defence to the applicant’s claim under s 11A of the 1987 Act. That is, a broad view must be taken in respect of all, in that case “action with respect to discipline”, and that such broad view is equally applicable to action with respect to performance appraisal or transfer in respect of the applicant’s case before the Commission. The respondent submits that the applicant does not have to be rigorously performance appraised, so long as the Commission is satisfied that the actions of the respondent touch upon performance appraisal, discipline and transfer.

23. The respondent submits its actions in this case consist of a mixture of performance

appraisal, discipline and in some respects, transfer when the applicant was transferred from one council to another.

24. The respondent submits that the applicant’s complaints of bullying and harassment are

meaningless unless they are underpinned by specific evidence that the Commission would be satisfied could constitute such terms. The respondent notes that, acknowledging the onus of proof on it, that there must be medical evidence in respect of the issue of whether the actions of the respondent with respect of performance appraisal, discipline and transfer were wholly or predominantly causative of the applicant’s psychological condition7.

25. The respondent notes the evidence of Mr Betts into whose team the applicant was assigned

from December 2017. He outlines the applicant’s duties, his weekly meetings with Mrs Younan and the tendency of her during the meetings to stare out the window and generally stare blankly. These meetings were confirmed by Mr Betts via email, and notes taken by him. A serious issue was discussed with the applicant in respect of a particular property following a phone call that Mr Betts overheard between the applicant and a property owner on 22 March 2018. Other issues led to an exchange between the applicant and Mr Betts at the communal table between their desks in respect of a report produced by the applicant on 9 May 2018 on a straightforward tree development application. The applicant walked off from this exchange, returning 5–10 minutes later and requesting a private meeting with Mr Betts in which she took issue with the manner in which he had spoken to her.

6 [2013] NSWCA 255 (Heggie). 7 Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad).

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26. The respondent relies upon Mr Betts’ evidence of the subsequent meetings between him, other staff members of the respondent and the applicant leading up to the meeting of 21 June 2018, detailed in the statement of Mr Betts.

27. The respondent emphasises the important nature of the applicant’s work in assessing

development applications in a timely manner, and the effect of errors in the assessment of such applications on the property owner concerned, neighbours of that property owner and the reputation of the respondent when errors are made.

28. The respondent submits that, in accordance with Heggie, while perception or misperception

of real events by a worker if causative of psychological injury is sufficient to satisfy the issue of injury in accordance with s 4 of the 1987 Act, such subjective response by a worker is irrelevant to a s 11A defence. The actions of an employer must be looked at objectively when determining the reasonableness of its conduct.

29. The respondent refers to the contemporaneous material, in the form of file notes and

correspondence prepared by Mr Betts attached to the Reply, which it submits supports what he says in his statement as to the poor performance of the applicant and his attempts to improve such performance. Among this documentation for example is an Improvement Action Plan covering the period 29 May 2018 to 12 June 20188, signed by the applicant and Mr Betts on 14 June 2018. The respondent submits that one looks at that document and has regard to the meetings that took place between him, other staff members and the applicant, his criticisms of the applicant’s work are reasonable. Mr Betts was doing what he was employed to do, that is supervise the work of the respondent’s employees whose duty it is to assess development applications. The respondent notes that the reason for the applicant’s bitter complaints against Mr Betts and others that she was being unfairly targeted is that she was the only one making such errors requiring close performance management.

30. The respondent notes in particular the letter Mr Betts forwarded to the applicant on

7 May 20189 outlining the significant substandard nature of the applicant’s work. The respondent asks the rhetorical question, what else should a superior do when faced with the kind of performance inadequacy shown by the applicant in this case? The only way to deal with it is to draw the employee’s attention to the deficiencies, in a polite and firm way without being abusive, where necessary have support people around, guide the employee through what is requires and let her explain some of her concerns. All of this the respondent did through, principally, Mr Betts.

31. The respondent notes the formal warning dated 21 June 2018 issued to the applicant

following the meeting on that day, and that it was the third such formal warning. That is the date pleaded by the applicant as the date of injury, presumably according to the respondent, the first date from which the applicant claims incapacity. When the whole of the evidence leading up to 21 June 2018 is considered, the respondent submits that there can be little doubt that the events that culminated in the formal warning were wholly, or alternatively predominantly, causative of the applicant’s psychological injury.

32. The respondent notes that, in this case as in many others, performance appraisal starts to

meld with discipline “…and the two are a very thin line.10” However the elements of the s 11A defence are disjunctive, and it is of no consequence if what is relied upon by the respondent in this case is one or the other, or a mixture of such factors.

8 Reply p 172. 9 Reply p 179. 10 T1 p 26.10.

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33. The respondent submits that if there are blemishes in the manner in which it took action with respect to performance appraisal and/or discipline (although not admitted), in accordance with what Spigelman CJ held in Department of Education and Training v Sinclair11, those blemishes should not be enough to find that the defence has not been made out if the overall finding is that the actions were, objectively, reasonable.

34. The respondent then refers to the letter to the applicant from Rik Hart, General Manager of

IWC, dated 9 August 201812. This letter is in response to a “Grievance against unfair warning” (the 2018 grievance complaint) lodged by the applicant in respect of the formal warning she received dated 21 June 2018. The respondent submits that this is yet another example of the conduct of the applicant of, whenever she has been the subject of performance appraisal or warnings in the past, not accepting such appraisal or warning and immediately lodging a grievance complaint. The 2018 grievance complaint refers to, inter alia, the applicant’s previous allegations with respect to Mr Bas, which Mr Hart says were independently investigated and outcomes communicated to the applicant, and that the respondent would not be reinvestigating those matters. The respondent submits that there is no suggestion that the applicant suffered injury back at that time, in about 2012, and that the respondent acted properly in not reinvestigating those past complaints. The respondent submits that the 2018 grievance complaint is evidence of the applicant’s allegation that one of her superiors sought to influence another superior in the way that the applicant was managed. The respondent submits that the 2018 grievance is an attempt by the applicant to deflect what can only be seen as genuine criticism and genuine complaints about the manner in which she was performing her very serious role in the IWC.

35. The respondent then reviews the statement of Mr Bas dated 29 August 201813, and his performance management of the applicant from the time that he first became aware of issues with the applicant about a month after he commenced with the former Ashfield Council in June/July 2008. The first complaint he received about the applicant was from Amanda Fawkner about the applicant’s hours of work. The respondent noted the first warning issued to the applicant by Mr Bas on 18 November 2011, prior to which the applicant had been given regular feedback. This resulted in a grievance being lodged by the applicant on 10 February 2012. Subsequent work performance did not improve, according to Mr Bas. A second warning was issued following a meeting with Mr Bas on 1 June 2012, during which the applicant stormed out. Subsequently the applicant lodged another grievance against Mr Bas which was investigated by an external provider, and the allegations were not substantiated.

36. The respondent submits that the evidence of Jamie Erken (statement dated

6 September 201814) corroborates the evidence of Mr Bas, as does the contemporaneous evidentiary material attached to the Application and Reply, including the first warning dated 18 November 201115 and second warning dated 1 June 201216.

37. The respondent’s primary submission is that the applicant’s psychological injury was wholly

or predominantly caused by the reasonable action taken, principally by Mr Betts, in the period leading up to the third and final warning issued to the applicant on 21 June 2018. The matters as to what happened at the Ashfield Council are historical but give a very clear flavour of what Mr Betts and others had to deal with once the applicant was transferred to be under his supervision from December 2017 at IWC.

11 [2005] NSWCA 465 (Sinclair). 12 Reply p 187. 13 Reply p 22. 14 Reply p 49. 15 Application p 80. 16 Application p 81; Reply p 93.

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38. Alternatively, the respondent submits that if the finding is that the injury occurred over the previous six to eight years (unlikely due to the absence of evidence of medical consultations in that period), the events that led up to the issue of the first warning letter constitute performance appraisal and/or discipline.

39. The respondent submits that Dr Wotton, in his report dated 21 October 201917 finds the

applicant’s perceptions of how issues relating to her performance were managed were the predominant cause of her injury, and that this opinion is sufficient to support the respondent’s s 11A defence. It is not for the doctor to say whether the actions were in respect of performance appraisal or discipline, and that once that is determined there is enough evidence for the Commission to determine the reasonableness or otherwise of the actions.

40. On the issue of incapacity, the respondent submits that the applicant is not totally

incapacitated for work, and that, having regard to the criteria in s 32A of the 1987 Act to determine suitable employment, she could work in a number of other occupations that would not necessarily involve work that is highly motivational. She could perform non stressful work such as bookkeeping or invoicing that would not require her to meet performance schedules, timetables, or timeframes. She could also do lighter physical work such as cleaning or work within her physical capacity which would pay her on income of in excess of one thousand dollars a week.

Applicant

41. The applicant’s case is that she was, in effect, bullied or harassed at work over a long period

of time from when Mr Bas came to work at Ashfield Council. The initial problem with Mr Bas commenced from the time when Mr Bas noticed a tattoo on the applicant’s wrist, placed there in recognition of the applicant’s Coptic Christian Orthodox faith. The applicant found Mr Bas’s comments about the tattoo offensive, particularly when Mr Bas urged the applicant not to put pressure on her sons to have such a tattoo. This exchange is not challenged by Mr Bas, and it was from soon after this exchange that the applicant’s problems with Mr Bas commenced.

42. Another humiliating set of circumstances was when Mr Bas required the applicant to send him an email whenever she arrived at or left work. The applicant’s evidence is at variance with that of Mr Bas on this issue, which is to the effect that this requirement was imposed on the applicant for a short time only. This requirement of Mr Bas was surprising as there was a sign in register that he could have checked. The applicant submits that this conduct constitutes bullying, particularly when the applicant had worked for the respondent for a period of some 13 years.

43. The applicant also takes issue with the complaints made about her in respect of the number

of development applications (DAs) dealt with or approved by her. An analysis of the figures, provided in tables in her statement, reveals that her statistics were certainly not in the worst category, but more in the middle. That does not point to someone who was, year after year, doing a bad job as the warning letters would have one believe. These letters, according to the applicant, do not really change in the complaints recorded until the very last one, which seems to be a continuation of a whole series of complaints about her behaviour in 2016 to other people18.

17 Application p 1092. 18 T1 p 58.15-.20.

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44. The applicant takes particular exception to matters in the respondent’s response to her grievance dated 10 February 2012 in respect of the first warning notice given to her on 18 November 2011. This response was authored and signed by Mr Bas on 12 April 201219. The applicant’s evidence in her statement is that many of the criticisms of Mr Bas are not borne out by an examination of matters such as the number of DAs she dealt with compared with other planners or specialist planners employed by Ashfield Council, the average time taken to determination (noting that the NSW Environmental Planning and Assessment Act 1979 allows a period of 40 days for determination of a DA before an appeal to the Land and Environment Court is allowed, a limitation of which Mr Bas would have been aware), the lack of independence of Mr Bas in himself preparing the respondent’s response to the applicant’s grievance when he was the subject of many of the applicant’s grievance complaints and the allocation of three or four DAs to the applicant while she was on sick leave. These matters cast doubt on the veracity of Mr Bas’s response dated 12 April 2012.

45. The applicant’s counsel in submissions did not advocate the conspiracy theory that the

respondent asserts the applicant herself was putting forward in her evidence. He did submit that there was “…real talk of friction between Mr Bass [sic] and the applicant”20, commencing with the conversation about the Coptic Cross tattoo that Mr Bas had discussed with the applicant on an early property inspection which the two of them were attending. The applicant acknowledges that she did not make any complaint to anybody at the Ashfield Council about this matter.

46. The applicant submits that many of the criticisms made by Mr Bas in respect of her

performance are unjustified and gives detailed responses. She submits that Mr Bas, in his evidence to the Commission, does not address in any detail, the very detailed matters in her statement where she says that Mr Bas’s criticism of her work performance was unsatisfactory.

47. The applicant notes that she continued to work for a further four years between when the

warnings were given in 2011 and 2012, and 7 December 2016, when she received a further warning, in response to which she submitted a grievance to Mrs Richardson on 13 December 2016. The applicant asserts that she was at one stage informed by a person in HR that any complaints by her would not be considered if they were more that three or six months old. This is not dealt with by anyone other than the applicant herself.

48. The applicant submits that she was significantly affected by an incident on 23 March 2017,

when she was approached by Mr Bas and Mr Mushtaq and handed a DA file with an assessment report and associated conditions relating to a property in Summer Hill. This had been prepared by the applicant approximately seven weeks previously and was ready to be signed off once a very minor change, in respect of one of the conditions, was made. The applicant alleges that this DA had sat in Mr Bas’s in tray for seven weeks for review and signature by him, yet once the minor amendment was made by the applicant on 23 March 2017, Mr Bas insisted that the DA be dated that day. The applicant knew that this would adversely affect her statistics, as the seven weeks that the DA was sitting on Mr Bas’s desk could not be a fair measure of her performance. This incident caused the applicant to take stress leave for seven weeks21, and led to her assessment by Dr Papatheodorakis on 12 April 201722. Dr Papatheodorakis found the applicant’s current condition consistent with an Adjustment Disorder with Depressed and Anxious Mood and found her fit to resume duties in an alternative capacity in another area of the Ashfield Council under another manager/supervisor. The applicant was then transferred to the Leichardt section of the respondent’s operation.

19 Application p 344. 20 T1 p 62.10. 21 Application p 774. 22 Application p 85.

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49. The applicant submits that, apart from the evidence from Mr Bas, all of the respondent’s evidence postdates the period from when she was transferred to the Leichardt section of IWC.

50. The applicant submits that the second round of significant problems that the applicant experienced stemmed from the period from the end of 2017 when she came under the supervision of Mr Betts. There is no evidence from any witnesses on behalf of the respondent addressing the reason for her transfer to the Leichardt section of the respondent, that is, because of the psychological trauma she was suffering. There is nothing at all, either from the HR people or from senior management. The applicant submits that the respondent was aware of the previous problems she experienced previously when working with Mr Bas, but that no account was taken of these problems.

51. In summary, the applicant submits that the work performance improvement plans and

discussions in respect of those plans which took place from March 2018 and into May 2018 occurred after the applicant had suffered psychiatric injury in the period from about 2008 when she came under the supervision of Mr Bas23. As a result of what occurred during that time from 2008 onwards, Mrs Younan was diagnosed with a psychiatric injury by Dr Papatheodorakis in April 2017. Noting that injury is claimed from this earlier period, the applicant submits that the respondent has failed to make out its s 11A defence in respect of the actions of Mr Bas. Mr Bas has not, in his evidence, addressed many of the detailed matters relied upon by the applicant refuting his criticism of her, in particular in relation to the Coptic Cross tattoo incident, the unrealistic timeframes he placed on her to complete her work and his investigation of the first grievance lodged by her when the grievance was in respect of the conduct of Mr Bas himself24.

52. The applicant submits that, in view of the diagnosis of Dr Papatheodorakis in April 2017 that

she was suffering from a psychological condition and that she had expressed thoughts about self-harm, the performance management process put in place by Mr Betts should have been handled differently. In particular, at the very least, the meeting of 10 May 2018 should have been postponed25.

53. The applicant relies on the assessment of her by Dr Lucas Murphy contained in his report

dated 26 September 201826, in particular his diagnosis that she is suffering from a generalised anxiety disorder present since 200827, which dovetails with the time when Mr Bas commenced employment with the Ashfield Council. Dr Murphy’s opinion that the main contributing factor to the development of the applicant’s depressive episode is the letter of warning issued on 22 June 2018 is not to be accepted, as the doctor did not have a full history that the generalised anxiety disorder present from 2008 was work related, and he did not have access to the report of Dr Papatheodorakis dated 12 April 201728.

54. The applicant takes issue with the opinion of Dr Wotton in his report dated 21 October 2018

in so far as he finds that the applicant’s perceptions of the reasons for her performance appraisals are the predominant cause for the development of psychological injury (assuming that he is referring to what happened in 2018). The applicant submits that the perceptions of unfair treatment began from about 2008 when the applicant came under the supervision of Mr Bas. This submission is supported by the opinion of Dr Thomas Oldtree Clark in his report dated 13 March 201929.

23 T2 p 8.10-9.15. 24 T2 p 11.25-12.10. 25 T2 p 5.1-6.10. 26 Application p 1118. 27 Application p 1124. 28 T2 p 14.14-.25. 29 Application p 1128.

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55. On the issue of incapacity for work, the applicant submits that she is totally incapacitated for work. This is borne out by her experience after her transfer to the Leichardt section of IWC. The applicant accepts what Dr Wotton finds that she is unable to be employed because of the severity of her depression, cognitive changes, anhedonia, loss of self esteem and loss of confidence.

56. The applicant seeks a general order under s 60 of the 1987 Act.

57. The applicant submits that the whole person impairment (WPI) assessed by Dr Wotton, 19%,

should be accepted by the Commission and that there is therefore no need for referral of the matter to an Approved Medical Specialist (AMS) for assessment.

Respondent in Reply

58. The respondent submits that there is no medical evidence to support the proposition that the

applicant was injured as far back as 2010 as she claims. The respondent does not accept that the certificates of the applicant’s general practitioner, Dr Medhat Kirlous30 dated 25 March and 10 April 2017 (containing certification of work related stress) constitute the finding of a psychological injury as defined in s 11A(3) of the 1987 Act, relying on what Neilson J found in Stewart v New South Wales Police Service31. The respondent concedes the diagnosis of Dr Papatheodorakis in April 2017 of a psychological condition but submits that this was after the applicant had transferred to Leichardt Council. All of the complaints that might have been occurring before 2017 are not supported by medical evidence that suggests that there might have been an injury at that time. If there is a finding of injury in 2017, the s 11A defence extends back to that time, and it is supported by not only the medical evidence but the extensive lay evidence.

59. The respondent notes that the applicant was issued with warnings in 2012, further warnings in December 2016 and a third warning letter in June 2018 by a different manager. The respondent submits that Mr Bas handled himself as best as he could in dealing with the applicant, and the applicant’s performance had the same effect on Mr Betts when she was under his supervision.

60. The respondent emphasises the conspiracy theory that the applicant was herself putting

forward, that is, that the respondent through principally Mr Bas and Mr Betts, was trying to find an excuse to dispense with her services.. This applies, according to the respondent, to anyone who the applicant perceives is victimising or bullying her. The reality is however that the applicant was poorly performing her work.

61. In respect of the submission that Mr Bas was not the appropriate person to investigate the

first grievance lodged by the applicant, the respondent submits that there must firstly be a finding of injury at that time. If there is no such finding, the investigation by Mr Bas becomes irrelevant. On the other hand, if injury is found, the respondent submits that the contents of the letter dated 12 April 2012 must be examined to determine if the letter is forthright, clear and objective. The respondent submits that irrespective of who responded to the applicant’s grievance, the applicant would be dissatisfied. That is the tenor of her response to criticism.

62. The respondent submits that it is the totality of its actions that must be considered when

deciding whether on not its actions were reasonable.

30 Application pp 979 and 978. 31 [1998] NSWCC 57; 17 NSWCCR 202.

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63. The respondent reiterates its submission that the applicant is capable of performing suitable employment having regard to the definition of that term in s 32A of the 1987 Act. It does not suggest that she could return to her pre-injury employment, but notes the assessment of Dr Oldtree Clark that, while she was unable to return to her former employment, from a psychiatric perspective she has moderate impairment and places her in the psychiatric impairment rating scale (PIRS) class 3; can perform less than 20 hours per week in a different position, which requires less skill or is qualitatively different (eg less stressful).

64. The respondent rejects the applicant’s submission that, having regard to the diagnosis of

Dr Papatheodorakis, the applicant’s performance appraisal in May and June 2018 should have been handled differently. The applicant was asked at that time if she wanted to continue with the process, and she consented to do so.

FINDINGS AND REASONS Injury 65. In Attorney General’s Department v K32 Acting President Roche at [52], after a review of the

authorities, set out the principles in respect of the causation of psychological injury in the workplace as follows (authorities omitted):

“52. The following conclusions can be drawn from the above authorities:

‘(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;

(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;

(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;

(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;

(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’, 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.’”

32 [2010] NSWWCCOC 76 (A G v K).

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66. At [54] the Acting President said:

“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’, as Ms Smuts has submitted.”

67. In Hamad Deputy President Michael Snell observed at [78]:

“The Arbitrator at [62] said that ‘an event, or a series of events having a cumulative effect, can be causative of a psychiatric condition which does not become manifest until a later time’. This is frequently so.”

68. The applicant submits that she suffered injury as a result of events that occurred from the

time she came under the supervision of Mr Bas in 2008, and that she was diagnosed with a psychological injury by Dr Papatheodorakis on 12 April 2017. The respondent submits that there is no medical evidence to corroborate a finding that the applicant was injured in or after 2008 until the report of Dr Papatheodorakis in April 2017, and that if there is a finding of injury at that time, the actions of Mr Bas until that time were reasonable.

69. In her lengthy statement dated 28 April 2020 the applicant asserts that she had salary increases in the period 2006-2008 because of good performance reviews33, but she perceived a change in the attitude of Mr Bas to her from the time when there was discussion between Mr Bas and herself in respect a tattoo of an Egyptian Coptic Cross on her right wrist, referred to in [41] above. The applicant notes that there has been no response by Mr Bas in respect of this incident. It was after this that the first review of Mrs Younan’s performance by Mr Bas included comments that the quality of her reports required improvement, despite what had been previously indicated by Mr Sarin’s Performance Agreement and Review Documents34.

70. Thereafter the matters the applicant perceived to create a hostile working environment included:

(a) queries raised by Mr Bas as to the hours she kept, requiring her to

email him when she started and finished work The applicant asserts that this went on for years, until Mr Bas went on leave, with Mr Bas saying to the applicant before going on leave and instructing her to cease sending the emails “no one needs to know about this”35. Mr Bas says it was for a short time only;

(b) the failure of Mr Bas to recognise the good work she was doing36; (c) what led to the applicant making a “first verbal complaint” in respect

of the conduct of Mr Bas on 10 August 2011 which, according to Mrs Younan, prompted the issue of the first warning on 18 November 201137;

(d) the fact that Mr Bas himself responded to the first warning when it

concerned criticism of his actions in respect of the applicant38;

33 Application pp77-79. 34 Application p 8. 35 Application p 9 36 Application p 9. 37 Application pp 11 & 80. 38 Application pp 13 & 344.

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(e) the perception that Mr Bas unfairly interpreted her DA statistics39; (f) public humiliation in respect of the preliminary assessment of

proposed development procedures introduced by Mr Bas40; (g) matters leading up to a second written complaint made by the

applicant on 11 November 201541 and the response from Phil Sarin dated 18 December 201542;

(h) the third written/verbal complaint to Mr Sarin on 6 September 201643; (i) the formal Verbal Warning dated documented 2 November 2016 and

the two warning notices dated 7 and 21 December 201644 followed by the grievance that the applicant submitted to Ms Elizabeth Richardson on 13 December 2016, and

(j) an incident on 23 March 2017 in which both Mr Bas and Mr Mushtaq

were involved over a particular development in Summer Hill45.

71. Mr Bas addresses these issues in his statement dated 29 August 201846. He says that he first became aware of issues with the applicant about a month after he commenced when Amanda Faulkner approached him complaining about the hours the applicant worked. He noticed that the applicant’s hours did not conform with what she agreed she should be working and that when she was required to work on the counter, she would often be absent. He then commenced to view her assessment reports which he says were lacking in detail and basis for assessment determination. He became aware that Amanda was correcting the applicant’s reports, which became apparent when he began to check the applicant’s reports directly. When the applicant complained about Amanda, alleging that she was bullying and harassing her, Mr Bas took over the management of the applicant until Mr Shakeeb Mustaq commenced with the Council.

72. Mr Bas says that after a period of time, he managed the applicant for about two months and it became apparent that her reports needed substantial rework, that the accuracy of her reports was lacking, she did not follow set procedures and also, he did notice that she had issues starting work on time. He then arranged for the applicant to email her when she commenced and left work, a practice that he says went on “… a brief period of time.”

73. Mr Bas says that at that time he attempted to coach the applicant, but did not introduce a

performance management plan. By that time, Mr Mustaq had commenced and he took control of managing Mrs Younan. The applicant’s performance had not improved and the applicant complained to him that Mr Mustaq was unfair and was harassing and bullying her. That led to the first warning issued on 18 November 2011. Mr Bas says that the applicant resented and resisted assistance to her to improve her performance, and that following receipt of the first warning, she lodged the grievance on 10 February 2012, to which he was required to respond. He was unable to substantiate any of her allegations.

39 Application p 34. 40 Application p 20. 41 Application p 22. 42 Application p 663. 43 Application p 27. 44 Application pp 32 & 35. 45 Application p 37. 46 Reply p 22.

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74. Mr Bas says that the applicant continued to perform her normal duties, not lodging any complaints, and he then noticed a change in her behaviour, becoming moody and displaying a negative approach to her interactions with Mr Mustaq and himself. He then does refer to a HR meeting scheduled for 10 May 2012, prior to which the applicant was given a letter disclosing concerns as outlined in the first warning letter. The meeting eventually took place on 1 June 2012, following which the applicant was issued with a second letter of warning. The applicant stormed out of the meeting.

75. The applicant continued with her normal duties, but Mr Bas observed that she disconnected

from her team and was getting upset as she alleged that she was carrying out harder DA determinations, a matter denied by Mr Bas. He says that the applicant’s attendance record became inconsistent, and that she took sick leave after having a discussion in relation to her work performance.

76. Mr Bas goes on to give further evidence of a deteriorating relationship with the applicant, with

recommencement of performance management before the amalgamation of the three councils in May 2016.

77. After the amalgamation Mr Bas says that the applicant approached Elizabeth Richardson,

Group Manager Development Assessment and Regulatory Services and complained that she was being bullied by Mr Bas, and wanted Ms Richardson to intervene and confirm that the first warning was not justified. The applicant then went on stress leave and was absent for about a month. In order for her to return to work, IWC indicated to her that she would be removed from the Ashfield Team and be placed in the Leichardt Team under the management of Rachel Josie.

78. The foregoing summary of the evidence of the applicant and Mr Bas indicates a clear picture

of a deteriorating relationship between the applicant, Mr Bas and other work colleagues in the Ashfield Team. Mr Bas says that whilst he was her manager, the applicant was grossly underperforming in her role, provided poor customer service, incorrectly completed time sheets, did not follow procedures, did not compile [sic] with her agreed hours of work, undermined the team leader’s authority and intimidated and harassed the team leader and Manager Of Development Services.

79. The applicant has gone into great detail in her statement and attachments in respect of the

assertions of bullying, harassment and unfair treatment made by her. These are refuted by Mr Bas, and his assertion is that the applicant was basically underperforming in her role. The applicant submits that Mr Bas does not in his statement deal with many of the allegations that are levelled against him, particularly in relation to the Coptic Cross incident and the unrealistic time frames that he imposed upon her. The applicant submits that it could not be suggested that, particularly given that the respondent was prepared to accept the summary of the situation given by Dr Papatheodorakis, that Mr Bas in any way acted reasonably in any of the interactions he had with the applicant47. The evidence of the applicant and Mr Bas does confirm that the matters complained of were real and not external events, and, in accordance with A G v K the perception of those events can satisfy the test of injury arising out of or in the course of employment.

80. It does not matter that the applicant’s perception of events did not pass some qualitative test

based on an ‘objective test of reasonableness’, or that the applicant’s reaction to the events must have been ‘rational, reasonable or proportionate.’ It is a subjective test, and if psychological injury followed, it is open to the Commission to conclude that causation is established.

47 T2 p 11.15-12.10.

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81. I think that the applicant did perceive an offensive or hostile working environment during the period from 2008 from when she came under the supervision of Mr Bas. It originated in the incident when Mr Bas questioned the applicant over the Coptic Christian tattoo she had on her right wrist and is clearly evidenced by her reaction to the warnings issued to her and her lodgement of grievances in response to those warnings. There were two further warnings issued by Mr Bas to the applicant on 7 and 12 December 2016, and that period culminated in the incident of March 2017, when Mr Bas refused to amend the date of a DA assessed by Mrs Younan, which she says had been sitting in his in-tray for seven weeks. This was before the applicant transferred to the Leichardt section of IWC, not before as submitted by the respondent at [58] above.

82. The applicant consulted her general practitioner, Dr Medhat Kirlous, on 23 March and

10 April 201748. On both occasions, Dr Kirlous issued medical certificates, certifying Mr Sarkis Younan unfit for work due to “work related stress” from 23 March 2017 to 7 April 2017 and from 10 April 2017 until 13 April 2017.

83. The applicant saw Dr Papatheodorakis at the request of IWC on 12 April 2017. He took a

history of the applicant’s employment as a town planner over a period of 12 years and the difficulties she had in dealings with her manager at the workplace. The doctor recorded that the applicant felt that she had been singled out, victimised, harassed and bullied at various times, and most recently treated unfairly regarding her performance at the workplace, in that she did not attain relevant targets. Mrs Younan discussed with Dr Papatheodorakis multiple issues extending back several years, which culminates in her deteriorating mental status, worsened most recently three weeks previously. That is clearly a reference to the incident in March 2017 when Mr Bas refused to alter the date on a DA which the applicant says had been sitting in his in-tray for seven weeks. The doctor also recorded the applicant’s perception that her work performance worsened following lodgement of a complaint against her manager several years previously.

84. Dr Papatheodorakis said that:

“In summary, Ms Younan suffers from a psychological condition and this is allegedly secondary to dealings with her direct manager at the workplace.”

The doctor expressed the opinion that the applicant’s current condition was consistent with an Adjustment Disorder with Depressed and Anxious Mood. He then discussed the nature of an adjustment disorder and causation thereof, noting that it can be as a result of a single life stressor event or, inter alia, a continuous stressor such as perceived (mis) treatment at the workplace.

85. After a lengthy discussion with the applicant, Dr Papatheodorakis concluded:

(a) the applicant was currently not fit to work under the same manager/same

conditions; (b) she would be unable to resume work in her previous capacity in the

foreseeable future;

(c) she was nevertheless fit to resume her normal duties as a town planner if she worked in a different area of the council, that is, agreeable to be relocated to the Marrickville/Leichardt depots and not continue working in the Ashfield depot, and

(d) she was fit to resume duties in an alternative capacity in another area

of the same council (Ashfield) depot under another manager/supervisor.

48 Application pp 1080 & 1079.

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86. The applicant returned to work in the Leichardt section of IWC where she says she worked without incident until December 2017 when she came under the supervision of Mr Betts.

87. The applicant claims in the Application that she sustained injury as a result of the abuse, discrimination and harassment by her employer until 21 June 2018, her last date of employment (deemed date). At the arbitration hearing, the applicant claimed that she had suffered psychological injury by the time she transferred to the Leichardt section in May 2017, and this injury significantly affected her performance and concentration in that new role.

88. There is sufficient evidence to find that the applicant suffered from an Adjustment Disorder

with Depressed and Anxious Mood as diagnosed by Dr Papatheodorakis on 12 April 2017. The applicant alleges, as recorded by Dr Papatheodorakis, this was as a result of what had occurred at work over the period since she came under the supervision of Mr Bas in 2008. This finding is consistent with the opinion of Dr Norman Lucas who assessed the applicant on behalf of StateCover on 17 September 2018 and produced a report of 26 September 2018. Although the doctor does not refer to the diagnosis in the report of Dr Papatheodorakis dated 12 April 2017, he does say in answer to question [5] put to him and recorded in the report that the main contributing factor (i.e. more than 75%) to the development of the applicant’s depressive episode is the letter of warning issued on 22 [sic, 21] June 2018, and

“Ms Younan’s generalised anxiety disorder is a pre-existing condition that has been present since 2008.49”

In answer to the previous question [4] put to him in his report, Dr Lucas says that the chronology and content of Ms Younan’s anxiety and depressive symptoms centre on the letter of warning, and that she first sought help for her mental health four days later. In the context of the question, the doctor is referring to the third and final warning letter issued 21 June 2018. Dr Lucas does go on to say:

“This occurs on a background of several years of mistrust and a deteriorating relationship with her supervisor Mr Betts in the context of previous letters of warning and performance improvement plans.”

89. Dr Papatheodorakis said that the overall prognosis for adjustment disorder is favourable with

appropriate treatment, and that adjustment disorders generally occur within a short period of time following the stressors, and by definition, should not last longer than six months after the stressor or its consequences have ended. The doctor’s prognosis is consistent with what occurred thereafter in the course of the applicant’s employment with the respondent, that is, she transferred to the Leichardt section of the IWC.

90. What happened thereafter is referred to by the applicant at [11] and [12] of her statement dated 28 April 202050. She says that following a specific incident which took place between herself and Mr Bas in March 2017, which put her on stress/sick leave for about two months, she was relocated to the Leichardt Service Centre (LSC) in May 2017 in accordance with the recommendations of Dr Papatheodorakis. She accepted this transfer knowing that she would no longer be reporting to Mr Bas, or have anything to do with Mr Mushtaq. In the new arrangement the applicant reported to Mrs Cowie from May 2017 until the end of the year, during which time she says that there were no issues raised by Ms Cowie with respect to her performance. Further, she says that no issues were raised by Mr Reid, who had been reviewing her written correspondence from May 2017 until she went on leave on 25 June 2018. I do note however that the applicant appears to have had a number of issues with her work in the period during which she was reporting to Mrs Cowie. These are documented in “Notes of Adele Cowie dated 17 July 2017”51, covering the period from

49 Application p 1124. 50 Application p 5. 51 Reply p 98.

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17 July 2017 to 30 October 2017 in respect of a number of different properties referred to therein.

91. Mrs Younan says that following the new structure that took place in December 2017, she was placed under the supervision of Mr Betts, who, whilst initially was not aggressive, later started to treat her in an abusive and condescending manner, which triggered so many depressive memories of incidents that occurred while reporting to Mr Bas at Ashfield. Mr Betts denies this conduct. Mrs Younan says that the psychological injury she sustained as a result of the bullying to which she was subject to prior to her relocation to the LSC and which strongly affected her memory was made worse by Mr Betts’ aggression and this finally affected her performance.

92. I accept that the applicant suffered from a psychological injury as diagnosed by

Dr Papatheodorakis in April 2017. There is no contemporaneous medical evidence that the applicant suffered psychological injury prior to that date, and although she alleges that the injury was as a result of her perception of bullying and harassment by Mr Bas, it appears to have been triggered by the incident in March 2017, when Mr Bas refused to change the date on a DA assessed by the applicant which required a small correction before issue.

93. As noted above at [67], an event, or a series of events having a cumulative effect, can be

causative of a psychiatric condition which does not become manifest until a later time. Dr Papatheodorakis does not express an opinion on the causation of the applicant’s condition diagnosed by him, he just notes the applicant’s allegations. I accept that the psychological injury diagnosed by the doctor at that time was triggered by the March 2017 incident against the background of the deteriorating relationship the applicant had with Mr Bas. I think that it was the culmination of events that occurred in the workplace from 2008 when the applicant first came under the supervision of Mr Bas.

94. The reasonableness of the respondent’s action up until the diagnosis of injury by

Dr Papatheodorakis in April 2017 and thereafter will be considered hereunder. Section 11A defence Mr Bas 95. In Heggie Sackville AJA set out the following propositions consistent ith the statutory

language and the authorities that have construed s 11A(1) if the 1987 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.

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(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.

(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.

(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.” (emphasis in original)

96. The reasonableness of the actions of Mr Bas in support of the s 11A defence must be looked at objectively. His actions commenced about a month after he started with Ashfield Council in June/July 2008 when he received complaints from Amanda Faulkner, who was managing the applicant before Mr Bas arrived. The complaints concerned the applicant’s hours of work. Mr Bas noticed that the applicant had issues starting work on time and, notwithstanding that the Council maintained sign on registers, put in place “…for a brief period of time” a system whereby the applicant would email him when she started and finished work. The applicant says that this went on for a considerable period and was suspended when Mr Bas went on leave. It is apparent from attachment 12.1 to the applicant’s statement52 that this practice continued over the period from 2008 to 2010.

97. Mr Bas issued a First Warning Notice to the applicant on 18 November 201153. The applicant put in a grievance in respect of this Notice on 10 February 2012 to which Mr Bas responded in detail on 12 April 201254. The applicant says in her statement the allegations of excessive determination time were unfair and cites statistics in her statement in support of her allegation. She also says that this response should not have come from Mr Bas as it concerned complaints about his conduct.

98. Mr Bas issued a Second Warning Notice to the applicant on 25 July 201255 to which the

applicant did not respond as she says that she did not respond as she had lost confidence in the Council, as it allowed Mr Bas to respond to the first grievance.

99. On 11 November 2015, the applicant made a formal complaint against Mr Bass’s conduct.

That was externally investigated by Ms Sarah Nicita and was found unsubstantiated. In a letter dated 18 December 201556, Mr Phil Sarin, Director Planning and Environment, advised the applicant of the outcome of the investigation. In that letter Mr Sarin advised the applicant of the procedure to appeal the findings.

100. On 6 September 2016, the applicant made a verbal complaint to Mr Sarin. In response to this

the applicant received from Mr Bas what was described as a “Formal Verbal Warning” dated 2 November 201657. On 7 December 2016 Mr Bas issued the applicant a formal “First Warning” for what was described as not achieving tasks on time, excessive determination time and other matters. The applicant lodged a grievance against this warning on 13 December 2016, which was internally investigated by Ms Elizabeth Richardson, who was then Deputy General Development Manager Assets and Environment and found unsubstantiated.

52 Application p 139. 53 Application p 80. 54 Attachment 17.1 – Application p 344. 55 Application p 81. 56 Application p 663. 57 Application p 82.

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101. On 21 December 2016, Mr Bas issued another warning to the applicant. Relevantly, what

happened thereafter is the March 2017 incident referred to at [48] above. The applicant became upset when Mr Bas did not date the DA 23 March 2017, rather than the date seven weeks previously when she says that she gave it to him. Mr Bas does not address this incident in his statement. It occurred after the amalgamation of Ashfield, Marrickville and Leichardt Councils to form IWC.

102. The respondent acted in accordance with the recommendation of the doctor and reassigned

the applicant to work in LSC from May 2017. Notwithstanding the applicant’s evidence that from May to December 2017, there were no issues raised by Mrs Cowie in respect of her performance in that period, it is evident that there a were a number of issues with her work as noted in [90] above. Mrs Cowie lists issues from 17 July 2017 to 30 October 2017 (“Notes of Adele Cowie dated 17 July 2017”) including:

(a) sending out a wrong “stop-the-clock” letter when she should have sent out a

withdrawal letter; (b) proceeding to blame the Heritage Officer for the mistake; (c) having overlooked or forgotten an earlier conversation with Mrs Cowie about the

matter, leading her to believe that the applicant did not maintain good internal work management practices and was inclined to seek to blame others in an attempt to avoid responsibility;

(d) the return of a draft report multiple times in respect of an application that involved

a breach of a landscaped area; (e) spending time on the phone to an applicant to arrange a site inspection when the

inspection could have been done from the street; (f) taking excessive time on a site inspection, and (g) errors in correspondence, and in a report, in which the applicant had neglected to

delete half a dozen conditions which the Landscape Officer had advised should be deleted.

Mr Betts 103. From December 2017 onwards, Mr Betts made meticulous handwritten notes of issues with

the applicant’s work58, which formed the basis of his concern with such work and are reflected in his statement dated 29 August 2020. Having regard to that statement and those of Harjeet Atwal dated 31 August 201859, Joan Murphy dated 4 September 201860 and James Erken dated 4 September 201861, I do not accept that Mr Betts spoke to the applicant in an aggressive manner or that he later started to treat the applicant in an abusive or condescending manner. That may have been the applicant’s perception, perhaps stemming from her refusal to accept criticism of her work from as far back as 2011 when she was being supervised by Mr Bas, but on the evidence I do not find it to be the case. The evidence of Mr Atwal, Ms Murphy, Mr Erken and Mr Betts himself is all to the effect that Mr Betts was frustrated with the applicant’s work performance and that from March 2018 onwards, he was obliged to put in place a performance improvement plan to improve that performance.

58 From p Reply 101. 59 Reply p 30. 60 Reply p 43. 61 Reply p 49.

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104. In his statement, Mr Betts gives a history of his interaction with the applicant from May 2017 when she commenced working with IWC. He notes that Mrs Younan joined his team on 4 December 2017 at the commencement of the new structure where he became team leader. He says that he was aware and had been made aware of previous issues when the applicant was working at IWC and Ashfield Council.

105. Mr Betts recalled a number of issues with the applicant’s performance when she commenced

under his supervision, such as not being on top of controls or case law when discussing matters with her and/or after reviewing some of her reports and correspondence. He noticed multiple issues with the vast majority of her work. He discussed these with Acting Group Manager, Ryan Cole in January 2018 and after meeting with HR in early February discussed the issues with Joan Murphy, Ryan Cole and Jamie Erken. He lists the issues at [10] of his statement. Mr Betts was advised to collate evidence of the applicant’s work performance, and it is clear from his detailed notes that he did so. He compared the applicant’s reports and output with the records of other non-Senior Planner’s reviewed reports and output. He sent the applicant a list of around 90 applications that he completed in 2017 and said to her that she should use the reports as examples and a basis for her assessment, and that she was welcome to cut and paste from those reports and edit as required so that she should not have any problems. The applicant accepted this advice and did not raise any issues with that assistance.

106. Mr Betts had weekly meetings with the applicant and other meetings during the week to address her work performance. He said that during these meetings Mrs Younan had a tendency to stare out the window and generally stare blankly. He would therefore confirm the meetings via email of the discussions and take notes. Matters appear to have come to a head on 22 March 2019, when Mr Betts overheard a telephone conversation between the applicant and the owner of a property. During that conversation, Mr Betts realised that the applicant had not checked the zoning of the property under discussion, which caused Mr Betts to sign a letter she had prepared asking for erroneous information. The applicant was asked to break off the phone call and Mr Betts spoke to her in a displeased manner. The letter, according to Mr Betts, made the Council look inept and incompetent. This was confirmed in an email from Mr Betts to the applicant. After the meeting, the applicant approached Mr Betts saying she was going home sick and was not sure if she would attend work the following day. She did however do so.

107. The applicant did not respond to the email but met again with Mr Betts on 26 March 2018,

when she apologised for the error. At that stage said that she wanted to approach Jamie Erken to ask to be transferred back to the Ashfield DA team as being in the Leichardt division was impeding her job prospects of becoming a Senior Planner. She also said that she was having trouble understanding the Leichardt controls and that Ashfield controls were more straightforward. At [20] of his statement, Mr Betts sets out his reasons as to why the applicant was not at the level of a Senior Planner as she had not been able to perform in her current role. The application for transfer was refused by Mr Erken. Thereafter, the applicant was asked on 7 May 2018 to attend a meeting on 10 May to address her unsatisfactory job performance. She was given a letter on 7 May outlining the numerous issues with that performance. Mr Betts says that, prior to that date the applicant made no complaints that she was bullied in the workplace.

108. On 9 May 2018, Mr Betts spoke to the applicant about a report she had produced for a tree

development which was a straightforward application. She provided a substandard report which required extensive editing. Mr Betts spoke to the applicant at the communal table between their desks and raised concern with the quality of the report. He acknowledges that he spoke to her in a frustrated tone of voice but did not raise his voice. Mrs Younan’s reaction was that she walked off and then returned 5-10 minutes later and requested a meeting in private. At that meeting Mrs Younan raised issues with the way Mr Betts had spoken to her. Mr Betts asked why she was bringing this up now, and she said that he was speaking to her in a similar manner to that of other Team Leaders and Managers (at the former Ashfield Council), and that she thought that it would change when she came to

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Leichardt, but it had not. Mrs Younan appeared upset and shaking and said that she had been contemplating suicide and that it was only her faith in God that prevented her from acting on these thoughts. Mr Betts then said that this was the first time he had heard about these problems and questioned her as to why she was raising the matter at that stage. Mrs Younan did not respond to that question.

109. Mr Betts said that he had high expectations of his staff to carry out accurate and adequate assessments, and that he did not have any knowledge of her treatment at Ashfield. He said that the last thing he wanted was for Mrs Younan to be contemplating self-harm and apologised for any upset he had caused. He said that he does not treat her any differently from anyone else and that he speaks to all of his staff in a similar manner if they produce substandard work. He then advised her that her job performance would be discussed at the meeting on 10 May 2018.

110. After consulting with Joan Murphy from HR, Mr Betts again spoke to the applicant about the

self-harm matter and asked if she was OK and whether she wished to proceed with the meeting of 10 May 2018. Mrs Younan advised that she no longer had such thoughts, that she had had those at Ashfield, thanked Mr Betts for being a good person and advised that she was OK to proceed with the meeting. She also said that he (Mr Betts) overreacts with her and that he needed to be patient with her.

111. The meeting on 10 May 2018 was attended by the applicant, Mr Betts, Joan Murphy and

Jamie Erken. Each point of the letter of 7 May 2018 was discussed, which addressed numerous issues. These are set out at [25]-[29] of Mr Betts’s statement dated 29 August 2019. There was discussion about problems that the applicant was having with the Leichardt Development Control Plan 2013, of which Mr Betts was unaware. Joan Murphy asked the applicant “where do you think Council should go from here?” to which the applicant replied after a considerable pause that she was not sure. Ms Murphy advised the applicant that the matters would be discussed and that they would get back to her. After the applicant left the room, Ms Murphy instructed that Mrs Younan would have to be placed on a Performance Improvement Plan (PIP) as soon as possible. This was given to her on 22 May 2018.

112. The applicant attended a meeting with Mr Betts and Joan Murphy (who chaired the meeting)

on 22 May 2018. This was a follow up meeting to that of the meeting of 10 May 2018. The PIP was discussed and Mr Betts advised Mrs Younan what he expected from her. He says that the meeting was held in a normal voice. Ms Murphy askes Mrs Younan if she had any issues with the PIP, and she raised an issue about her ability to finalise two applications a week because of counter duty at the Ashfield Service Centre, which affected her ability to complete reports. Mrs Younan was advised that every non-Senior Planner had to do general enquiries once a week and that she could save her documents on a USB and continue her work at the Ashfield Service Centre on a computer there. That was the only issue raised and the applicant signed the PIP. Mr Betts then subsequently met with the applicant on a weekly basis when he would go through her performance.

113. On 25 May 2018, Mrs Younan made a request for transfer to Mr Erken which was denied.

This is confirmed in Mt Erken’s statement, with the reason being given that all development assessment officers employed by IWC need to have the ability to assess development applications under the various planning instruments applying to the Local Government Area. Mr Erken says that there was no malice or ill intent towards the applicant; it just did not benefit the team and their future vision.

114. Mr Betts then put in place a series of further meetings commencing on 29 May 2018. At that

meeting, Mrs Younan said that he spoke to her too harshly and that “there is something wrong here”. She said that Mr Betts was speaking to her differently, to which he says that he responded in a normal voice tone and that she was being performance managed. Mr Betts invited Mrs Younan to go and speak to other planners on how he speaks to them when they do not perform. She declined the invitation to have anyone else in the room.

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115. Further meetings ensued between Mr Betts and the applicant on 5 and 8 June 2018 when errors in respect of a DA for a particular property were discussed. At the second meeting in response to an accusation from the applicant that Mr Betts was “nit-picking”, he replied that she was causing a lot of grief for him and the Council generally. Soon afterwards, the applicant went home sick. Mr Betts then met with Group Manager Harjeet Atwal who offered assistance in reviewing the applicant’s work and offered to attend the third PIP meeting. Mr Betts said that because of [this] offer and the stress of managing Mrs Younan, he became upset.

116. The next meeting with the applicant and Mr Betts on 12 June 2018 was attended by

Mr Atwal. Mr Betts advised the applicant that her job performance was generally unsatisfactory and that she “seems to be in a state of paralysis post site inspection stage.” After the following meeting on 18 June 2018, Mr Betts handed the applicant a letter on 19 June inviting her to attend a meeting with HR on 21 June 2018. That took place and present at that meeting were the applicant, Joan Murphy, Rachel Josey (Acting Manager of Development Assessment, Jamie Erken having left the employment of IWC) and Mr Betts.

117. A number of issues were discussed at the meeting after which Rachel Josey advised the

applicant that she would be issued with another warning for workplace performance. She then accused Mr Betts of being “so unfair” to her. Mr Betts says that the applicant was angry but not emotional and attempted to leave the room. She was asked to sit back down while Ms Murphy, Ms Josey and Mr Betts left the room to discuss the matter. After that discussion outside the room Mr Betts did not return but says that Ms Murphy and Ms Josey returned to the meeting and issued the applicant with a letter of warning.

118. The applicant then removed her personal belongings from her desk. She attended a

conference at Campbelltown the following day and went on sick leave from 25 June 2018.

119. Joan Murphy, in her statement dated 4 September 2018, confirms that she was at the meetings of 10 and 22 May 2018 and confirms that the applicant was advised in the meeting of 22 May that she would be placed on a PIP. Thereafter, she attended the meeting of 21 June 2018. She confirms the evidence of Mr Betts as to what occurred at that meeting and adds that Mr Betts reminded her again, and was previously asked, if she ever had an issue with him, noting that it was only during that meeting of 21 June that such matter was raised. Ms Murphy says that Mr Betts became upset and did not return to the meeting after the adjournment. Ms Murphy says that she stayed in the room with Ms Josey and it was decided that a final warning would be issued to the applicant. This was conveyed to the applicant. At that juncture, the applicant said that the first and second warnings were false and that it took her 10 years to prove that. After Ms Josey left, Ms Murphy told the applicant that it was her third warning for similar offences and that the department was not happy with the standard of her work, and that if it did not improve it would lead to termination.

120. Harjeet Atwal has given a statement dated 31 August 201862 in which he confirms that he attended the meeting between the applicant and Mr Betts on 12 June 2018. He says that Mr Betts spoke to Mrs Younan in a professional manner when addressing the issues that were discussed previously, reminding her that certain work tasks were agreed to be completed and that she had not been able to comply with that request. He asked her calmly why she had not been able to complete these tasks, to which Mrs Younan responded that she was trying and would continue to try. There was further discussion as to what could be done to assist her, and Mr Betts raised concerns about errors in her DA assessment. At one stage, Mrs Younan asked to speak to Mt Atwal individually and Mr Betts left the room. She then said that she had no complaints against Mr Betts, and that he was very helpful with her. She also said that she did not understand the Leichardt controls and wanted to return to work

62 Reply p 30.

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at Ashfield, and that she had gone through a fair bit and was allegedly bullied by her managers. This evidence corroborates the evidence of Ms Murphy that it was only at the meeting of 21 June 2018 that Mrs Younan first raised any issue with Mr Betts, or how he spoke to her.

121. Ms Murphy was provided with a further grievance complaint in mid July 2018 which she passed on to the Industrial Relations Manager.

122. This summarises the relevant matters leading up to the departure of the applicant from her

employment on 21 June 2018.

123. The applicant alleges that Mr Betts treated her in an abusive and condescending manner which triggered depressive memories of incidents which occurred while reporting to Mr Bas at Ashfield. She also alleges aggression on the part of Mr Betts which, along with the previous bullying alleged by Mr Bas, affected her performance. I do not accept this to be the case. Apart from the evidence of Mr Betts which I accept, both Ms Murphy and Mr Atwal give evidence that Mr Betts did not treat the applicant in any way other than in a professional manner and that the applicant did not raise any suggestion of an issue with him until the meeting of 21 June 2018. It is understandable that the applicant would have been upset at undergoing performance management, but Mr Betts was only trying to do his job in managing the performance of the applicant as her Team Leader, and attempting to improve her substandard performance which he inherited after the restructure on 4 December 2017.

124. Further, I do not accept the applicant’s submission that the respondent’s treatment of the

applicant from December 2017 should have been different from what occurred or coloured by the fact of the diagnosis of Dr Papatheodorakis in April 2017. Mr Betts was unaware of the allegations of the applicant as to the way she had been treated at the Ashfield Council until its merger with IWC in May 2016 and thereafter until March 2017 when she went on stress leave and saw Dr Papatheodorakis. In any event, as noted above at [90], the respondent accepted the recommendations of the doctor and transferred the applicant away from the Ashfield depot. Dr Papatheodorakis found that the applicant was fit to resume her normal duties in an alternative area of the same council under another manager. Having regard to the favourable prognosis of the doctor, the respondent was entitled to assume that this was the appropriate course of action for the applicant.

125. My finding is that the actions of the respondent through Mr Betts from December 2017

onwards were reasonable.

126. That leaves consideration of the actions of Mr Bas. The respondent submits that if there is no finding of injury prior to March 2017, the reasonableness or otherwise of his actions is not relevant. I have found that the applicant sustained injury on 23 March 2017 as diagnosed by Dr Papatheodorakis in April 2017 when Mr Bas refused to date a DA which had been amended on that day and that, according to the applicant, had been on his desk for seven weeks. There is no evidence from Mr Bas on this point and I accept what the applicant says.

127. However, viewed as a whole, if it is suggested that the applicant suffered injury from 2008

onwards when she first came under the supervision of Mr Betts, I think that the actions of Mr Bas with respect to performance appraisal and discipline from 2011 onwards when he issued the applicant with her first warning were reasonable. This is particularly so when one looks at the history of the applicant’s employment with the respondent subsequent to the transfer to the Leichardt section of IWC in May 2017. The standard of the applicant’s work did not improve, as is evident from the notes made by Adele Cowie covering the period from 17 July 2017 to 30 October 2017 (see [90] above), and from the evidence of Mr Betts.

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128. During the period that the applicant was under the supervision of Mr Bas she consistently refused to accept any criticism of her work and lodged grievances in response to a number of the warnings issued by him, none of which were substantiated on investigation. These included an external investigation carried out by Ms Sarah Nicita in response to the grievance complaint lodged by the applicant on 11 November 201563, and the grievance lodged by the applicant addressed to Ms Elizabeth Richardson dated 13 December 2016 and her response dated 23 March 201764. Further I do not consider it unreasonable that Mr Bas investigated the first grievance lodged by the applicant lodged in respect of his conduct in November 2011. Subsequent grievances were not investigated by him.

129. The pattern of the applicant’s behaviour in response to criticism of her performance

continued beyond 21 June 2018 when she lodged a complaint with Mr Rik Hart on 8 July 2018 to which he responded on 9 August 201865. After a thorough review of the applicant’s complaints, Mr Hart concluded, based on his findings, that the warning issued to Mrs Younan in June 2018 would not be overturned and was to remain.

130. The respondent submits, and I accept, that the whole of the conduct relied upon by the

applicant as giving rise to the psychological injury suffered by the applicant must be considered. This is consistent with what Spigelman CJ said at [96] in Department of Education and Training v Sinclair66 in respect of actions, in that case, with respect to discipline:

“Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.”

131. The applicant’s claim is in respect of the period of employment up until 21 June 2018 as

giving rise to the injury, and this is consistent with the medical evidence of Dr Lucas, who found that the main contributing factor to the development of the depressive episode was the letter of warning issued on 22 [sic, 21] June 2018, and also the evidence of Dr Wotton, who found that the applicant gradually developed anxiety and depression as a result of a series of performance appraisals and being placed on a PIP. This opinion is based on the history recorded by him of events which occurred in the whole period of her employment up until June 2018 when she was issued with a final warning, including the meticulously documented observations of Mr Betts who he notes was the applicant’s supervisor from 6 December 2017 to 22 June 2018. It is also consistent with the history recorded by Dr Oldtree Clark in his report dated 13 March 2019 and his opinion that the applicant’s employment is the substantial contributing factor to her psychiatric injury, and there is no evidence of other cause.

132. Dr Oldtree Clark diagnoses the applicant as suffering from a Major Depressive Disorder, the criteria for which may be continuously present for two years. He does comment on the diagnosis of Dr Papatheodorakis as follows:

“Her Occupational Physician thought she had an Adjustment Disorder but this has been going on too long to be labelled as such. She has the defined characteristics of a Persistent Depressive Disorder.”67

63 Application p 663 – letter 18 December 2015 to applicant. 64 Application pp 763 and 768. 65 Application pp 876 and 882. 66 [2005] NSWCA 465. 67 Application p 1131.

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133. The respondent has discharged the onus on it to show that the whole or predominant cause of the psychological injury sustained by the applicant was the action taken by the respondent over the period of the applicant’s employment up until 21 June 2018 with respect to performance appraisal, transfer and discipline. I have found such action to be reasonable.

134. There will be an award for the respondent. SUMMARY 135. The respondent sustained psychological injury arising out of or in the course of her

employment over the period from 2008 until 21 June 2018.

136. The whole or predominant cause of such injury was the reasonable action taken by the respondent with respect to performance appraisal, transfer and discipline.

137. Award for the respondent.