Attorney General's Department v K

The Evidence 42Detective Sergeant Miller, Commander of Tenprints, provided a statement in the proceedings in which he stated that he was responsible for the supervision and administration of Tenprint Fingerprint Form Processing for the Respondent. 43Det. Sgt. Miller described the nature of fingerprint technology as rapidly evolving thereby requiring the Respondent to develop training packages and constantly training staff. Training in some programs is delivered by the training unit although there are some self-training packages. 44Det. Sgt. Miller described the work undertaken in Tenprints and Latents as "a different tabulation on exactly the same program" albeit there are certain onscreen tools required to be used in Latents to enhance, contrast, colour and so on. Staff are rotated between the sections on a regular basis to keep their skills set up to date. 45Det. Sgt. Miller was absent performing other relieving duties at the time of the incident but was aware of it and stated that he had telephoned the Appellant, on a number of occasions in or about October 2011, to find out how he was and assured him that his workplace conditions would be respected and accommodated. 46Det. Sgt. Miller gave evidence that workplace assessment is a continuing institutional process as a number of officers had experienced neck and back injuries over the years. The Department, as a result, introduced ergonomic designer chairs and height adjustable electronically adjustable tables in order to address the problem. 47Detective Sergeant Tony Bush tendered a statement in the proceedings in which he advised that he was, at the relevant time, Team Leader in the Tenprint Section 48Det. Sgt. Bush said that he heard the Appellant, on a number of occasions, complain about the lack of formal training in the use of WorkMate - a computerised system to compare fingerprints which he was already using. Det. Sgt. Bush said that, as a result of those complaints, he approached Leading Senior Constable Murray in Latents to prepare and conduct formal training in the use of WorkMate for staff attached to Tenprints. He then took steps to have the training approved by senior management. At that point, Inspector Sinclair decided that a 3-month rotation ought to occur with staff also receiving training in DIMS, Exhibits & Forensic Information system (EFIMS) and other recording systems used in Fingerprint Operations to assist them to better perform their everyday duties including Court briefs. 49Det. Sgt. Bush stated that he had a conversation with the Appellant about the rotation and specifically about the time limitation set on shifts in Latents. Det. Sgt. Bush said that, as a result of that conversation, he approached Inspector Sinclair and obtained agreement that the Appellant could work the shift hours required in the Latents Section and then complete the remainder of his hours in Tenprints. 50Det. Sgt. Bush stated that he had a further conversation with the Appellant at which time he attempted to negotiate with the latter that he undertake the rotation for a period of four weeks (a roster period) but it appeared that the Appellant had spoken to other persons and noted in his notebook that the training did not require that amount of time to complete. 51Det. Sgt. Bush explained that the Respondent had used a holistic approach to the training which had been devised - it was aimed at obtaining cross-skills and was designed to provide a better understanding of the whole system and how the various programs integrated with the Fingerprint experts' everyday work. He pointed out that a few hours of training, as envisaged by the Appellant, would serve to merely provide an overview of the programs and would be less beneficial. 52Det. Sgt. Bush recalled that the meeting with the Appellant lasted about 30 minutes and no agreement could be reached as to the benefits of, or timeframe for, the training. He described the Appellant as "highly animated" during their argument with hands waving around and voice raised at times. During cross-examination, he described the Appellant as "probably frustrated .. trying to get his point across to me". 53Det. Sgt. Bush acknowledged that the email circulated regarding the rotation did not state a duration for the rotation but he had in his mind the fact that Inspector Sinclair had said it would be for a period of three months. 54Det. Sgt. Bush recalled that the Appellant proceeded on sick leave two days after their conversation, which would have been 23 September 2011. 55Detective Sergeant Turner tendered a statement in the proceedings in which he stated that, at the relevant time, he was Acting Section Commander of the Tenprints section. He stated that he had been aware for some time that the Appellant was informally complaining that the Command was not training people adequately in DIMS, Workmate and maybe FSIMS and commenting that staff were expected to absorb training in systems "by osmosis". Det. Sgt. Turner explained that DIMS and FSIMS are rarely, if ever, used in Tenprints and are almost exclusively used in the Latents Section. The WorkMate Program is used in Tenprints approximately once a week to once a fortnight in the preparation of Court briefs by Fingerprint experts. Nevertheless, it is a very simple program that does not require much training. 56Det. Sgt. Turner pointed out that the Appellant could not work his 12 hour shifts in Latents because there is a workplace limitation, owing to health and safety requirements, to work not more than 10-hour shifts in that section. In addition, organisationally, the Appellant was needed for at least four hours a day in Tenprints. 57The Appellant gave evidence that the restrictions imposed by the 15 October 2003 WorkCover Certificate were on-going to manage/mitigate his condition and that fact was known, since that time, by the Forensic Services Group Command, Rehabilitation Unit and Hurt on Duty Unit. 58The Appellant stated that it was as a result of those restrictions that the duties he was provided with in the Tenprint Section involved comparing fingerprints transmitted via "Live Scan" computer technology, processing mailed fingerprint validations, data entry, telephone enquiries, retrieving hardcopy fingerprints from folders, and giving evidence in court and court preparation, when required. The Appellant noted that when Dr A Oertel was asked to respond to the question as to whether he would be able to return to travelling to work five days per week, confirmed, in a report dated 17 June 2005, the ongoing need for the Appellant to work 12 hour shifts, stating that "twelve-hour shifts should be the normal duration of shifts as this reduces travelling time and aggravation of back pain" with the projected time frame for achievement of return to full hours being "6-12 months". 59The Appellant stated that he received written confirmation from Mr Peter Driscoll, Manager, Restricted Duties Co-Ordination Unit, dated 6 December 2005, that his suitability complied with the definition of the Restricted Duties Policy and therefore he would be redeployed on Permanent Restricted Duties, Fingerprint Analysis, Criminal Identification Specialist Branch as a result of the lumber spine condition. 60The Appellant stated that he filed a subsequent Claim for Hurt on Duty Benefits form on 2 July 2009 for aggravation of the lower back injury and neck pain sustained as a result of moving his head and neck from side to side in a repetitive action whilst comparing tenprints and latent photographs. The claim was approved by Mr Wayne Layt, Claims Manager, Hurt on Duty Section. The Appellant was advised, on 17 August 2010, that the injury sustained on 6 June 2009, was classified as Hurt on Duty. His restrictions were confirmed to be: (a)rostered to perform no less than 12 hour shifts; (b)to travel a maximum of 3 hours per day, 4 days per week; (c)not to lift more than within his limits; (d)not to perform more than 1 hour of latent fingerprint comparison per shift; (e)not to perform operational police duties 61The Appellant confirmed in his written evidence that, in early August 2011, whilst working in Tenprints, he forwarded an email to Det. Sgt. Bush seeking training in DIMS and WorkMate and PowerPoint Presentation systems that he required at times to fulfil his duties either as team leader or as a senior experienced fingerprint expert. In his opinion, the training involved a small number of hours and related to court presentation requirements as required by all experts operating in all the sections. 62On 18 August 2011, Det. Sgt. Bush forwarded an email to staff, including himself, seeking that any experts interested in nominating for a rotation to Latents lodge an EOI as soon as possible as the Rosters Clerk, Ms Carmel Zammit, required the names of people rotating by 23 August in order to prepare the roster for the month commencing 18 September 2011. The email informed Officers that the decision to rotate expert staff from Tenprints to Latents was made after hearing of staff dissatisfaction with the lack of training with new systems such as Workmate and DIMS. It was felt that a normal rotation would help to alleviate the experts' concerns about their lack of training and knowledge of the new systems that had been implemented within Fingerprint Operations. Finally, the Officers were advised that if no EOIs were received, then a random selection would be made. 63No EOIs were received. The Appellant discovered, in an email from Det. Sgt. Bush dated 18 August 2011, that he had been selected by Inspector Sinclair to be the first cab off the rank and the transfer to the Latents section was to be for a period of up to six months, if not longer. He contended that it was contrary to what he had been advised previously. 64The Appellant stated that, shortly after, and without any prior consultation, Ms Zammit issued a new roster which spelt out that, commencing from 18 September 2011, he would be transferring to the Latents Section on 9.5 hour shifts and not 12 hour shifts as required by WorkCover. The Appellant said that 12 hour shifts were extremely important to him and he made enquiries with the Rosters Clerk immediately after release of the new roster. He said he spoke to Acting Commander Mitchell Turner and Det. Sgt Bush reminding them of his medical restrictions. 65The Appellant reported that the proposed transfer and the discussions around it had caused him considerable stress which exacerbated his current recognised injuries. Feeling disturbed and anxious about what he considered to be a lack of duty of care in relation to the WorkCover certificate stipulations and his rehabilitation requirements, the Appellant took a number of actions. He attended on his General Practitioner, Dr Hanif, on 23 August 2011. He contacted the Police Association (the Association) on or about 24 August 2011. The Association intervened and ensured that he continued to work 12 hour shifts. He also contacted Ms Heasman, Rehabilitation Unit and the Hurt on Duty Unit, on or about 24 August 2011, because he believed that the Commander was not complying with his duty of care obligations towards him by ensuring that he continued to perform 12 hour shifts. 66The Appellant reported that, during the course of August 2011 to September 2011, he suffered psychological injury in the form of ADMADM which exacerbated existing injuries recognised as ongoing and requiring rehabilitation. He attributed the psychological injury to, firstly, the actions of Det. Sgts. Bush and Turner and Inspector Sinclair in relation to changes in working hours and transfers in positions within the NSW Police Force Fingerprints decision and, secondly, the vague instructions in relation to the work. 67The Appellant said he contacted Dr Hanif on 6 September 2011 complaining of being stressed and anxious. She provided a report on the same day pointing out that - .... The on-going talk, rumour and innuendo about Mr Shorrock possibly reducing his 12 hour shifts has upset him greatly and caused him anxiety. The current duties and hours Mr Shorrock performs.... allows for his on-going rehabilitation needs... It is therefore preferable for Mr Shorrock's physical and mental state that he continues duties he is in this present time in the Tenprint Section and not in any other section that would exacerbate and aggravate his current back and neck related problems... 68There was still no formal agreement in place as to the 12 hour shifts nor had any formal workplace assessment been undertaken in relation to Latents at the time the new roster commenced on 18 September 2011. The Appellant contended that both failures were in contravention of the WorkCover restrictions. 69The Appellant confirmed, nevertheless, that he was not required to take up duties with the Latents Section on 18 September 2011 as proposed in the roster. 70The Appellant said he made enquiries on 21 September 2011 from numerous trainers and supervisors, including from Crime Scene Officer T Fayle, Detective Leading Senior Constable Didonato, Sergeant Lewis, Mr L Gordon and Detective Leading Senior Constable Watson, as to how long the DIMS training would take. He said he was advised it would only take one to two hours at most to complete that training. 71The Appellant said he had a conversation with Det. Sgt. Bush on 22 September 2011 in relation to the discrepancies in the time required for the DIMS training. The Appellant contended that the timeframe of the rotation, being 8-12 hours in Latents over a 2 month period, was contrary to what he had been told. During that conversation he was advised that Inspector Sinclair had agreed to let the Appellant work 12 hour shifts with 8 of those being in Latents and 4 in Tenprint. The Appellant contended that the numerous discrepancies, lack of adherence to medical restrictions and lack of workplace assessment, were attempts to discriminate against him. 72The Appellant said that, also on 22 September 2011, he discussed what had occurred with Detective Senior Constable Wake and then, when he arrived home later that day, he rang work and spoke about it to Detective Leading Senior Constable Searles. He told the latter about the anxiety he was experiencing as a result. He said he had been unable to sleep that night as he kept going over in his mind what had occurred while he was lying in bed. 73The Appellant stated that when he arrived at work on 23 September 2011 he spoke with Det. Sgt. Turner about his grievances regarding the DIMS training, transfer to the Latents section and lack of workplace assessment. He said that during the conversation he had become overly distressed and anxious. He said he broke down a number of times in front of Sergeant Turner and had to go home. He said he suffered a psychological injury as a result. Det. Sgt. Turner submitted an Incident Notification Form in which he reported: Months previously, D/S/C SHORROCK sent an email to Tenprint Supervisors identifying that he needed/wanted training in the DIMS & WorkMate programmes. While WorkMate is only occasionally used in Tenprints and then only to complete a Court Brief, it is used daily in Latents for Fingerprint Comparisons. DIMS is not, however, ever used in Tenprints, it is used exclusively in Latents. Consequently, D/S/C SHORROCK has been informed of the Commands intention to transfer him temporarily to Latents, in order to address the training needs which D/S/C SHORROCK himself identified. Since being notified of the Commands intention, D/S/C SHORROCK has been increasingly resistant to the move, claiming problems with work hours (12 hour shifts are not worked in Latents, however, the Command has expressed approval for D/S/C SHORROCK to perform 8 hours in Latents and 4 hours in Tenprints), travel difficulties to and from work (however, D/S/C SHORROCK has had no problem attending the workplace when overtime has been on offer in the very recent past), workplace agreements (no more than 1 hour work of Latent Fingerprint comparison per rostered shift - even though the WorkMate programme - one of the very programmes D./S./C SHORROCK sought to be trained in - supersedes the old "Henry Glass" kind of Latent Fingerprint Identification and does not differ in any appreciable way from the Tenprint work he currently performs. A Workplace Assessment is currently being sought and organised in order to establish this) and Return to Work Plans will not allow him to attend Latents in order to receive training in the systems he himself [requested]. . The Appellant argued that - It was incorrect to say that DIMS is not used in Tenprints as he was aware of numerous instances where DIMS was used in that section; Although he had only worked 12 hours overtime in the whole of the 2011 calendar year and the last time he worked overtime was for approximately 4 hours in April 2011, it was still incorrect to state that there was a restriction on him working overtime; and The workplace assessment should have been completed prior to the proposed transfer. The first notification he received regarding the workplace assessment was an email from Sergeant Turner on 24 February 2012 advising that a workplace assessment had been completed. 74The Appellant said he consulted Dr Hanif on 23 September 2011 complaining of "emotional anxiety, tearfulness, sleep disturbance with early morning waking and irritability". He said he was unfit for work because he was unhappy, distressed, teary, very anxious, stressed and broke down on 22 and 23 September 2011 due to the issues at work resulting in him suffering from "anxiety and anxiety-related symptoms". He obtained a WorkCover medical certificate certifying him unfit to work from 23 September 2011 to 7 October 2011. 75The Appellant consulted Mr G Pankhurst, Police Psychologist, in late September 2011/early October 2011. 76On 7 October 2011 Dr Hanif issued him with another certificate for the period 7 October 2011 to 21 October 2011 inclusive and also referred him to a Consultant Clinical Psychologist, Mr S Borenstein, who he commenced to consult on the same day and on six subsequent occasions. Mr Borenstein prepared and forwarded a number of reports to Dr Hanif: 07 October 2011 18 October 2011 04 November 2011 21 November 2011 12 December 2011 20 January 2012 77Following the session with Mr Borenstein on 18 October 2011, it was recommended, in consultation with Dr Hanif, that the Appellant return to work on a program which would allow a return to normal duties. He commenced by working a 4-hour day, three days a week; then six hours per day, 3 days per week; then 8 hours per day, three days per week; and, finally, 12 hours per day, three days per week. Despite some regression during the 2nd week of the program, Mr Borenstein determined the Appellant was fit to return to normal duties on 21 November 2011. 78The Appellant said that on 1 November 2011 he submitted a Claim for Hurt on Duty Benefits form to the Respondent for a 'psychological' injury for which, he claimed, his employment was a substantial contributing factor and which eventually rendered him unfit for full operational duties. The Appellant contended that the Respondent's failure to adhere to WorkCover requirements by attempting to impose the transfers in September 2011 had been the cause of his psychological injury. 79The Appellant stated that his symptoms had improved to the extent that he was able to return to work and was certified as fit for suitable duties by: Dr P Choueifati from 22 October 2011 to 18 November 2011; Dr Hanif from 18 November 2011 to 25 November 2011; Dr Choueifati from 26 November 2011 to 12 December 2011. Dr Choueifati from 13 December 2011 to 21 December 2011. 80Dr Hanif provided a written report on 21 December 2011 in which she stated that the Appellant was suffering from ADMADM. She relevantly stated: 3. I was able to identify a workplace incident that occurred to Mr Shorrock that caused his psychological condition. Over a period of the 22nd and 23rd of September 2011 (and some months prior to these dates) Mr Shorrock was in discussions/arguements with Acting Sergeants in the Tenprint Section. Mr Shorrock was told that he would be moving from the Tenprint Section to another section for an initial period first mentioned for 6 months and the reason would be due to training him for DIMS procedures. Mr Shorrock made enquiries from Senior Trainers and found out that training for DIMS would take only about one hour in total. Further, that when Mr Shorrock told his Command about the existing Negotiated agreements/Work Cover restrictions/Return to work agreements made with Mr Shorrock since 2005 and prior to that due to his on-going problems with his back and neck, his Command ignored these current agreements. He felt that he had been bullied by the two Acting Sergeants and the Inspector involved with this matter... .... 5. Mr Shorrock indicated to me on numerous occasions that there are no factors outside of work that has caused his current condition. Mr Shorrock has indicted to me that there are other work related matters that have happened prior to this incident that may have contributed to his current condition. There are; 1. The sudden closer of Hurstville Fingerprint Crime Scene Unit to which he was stationed and the transfer of all Fingerprint Staff positions back to Parramatta. 2. The immediate transfer of Mr Shorrock from Lake Illawarra Fingerprint work to Fingerprint Operations, Parramatta. 81The Appellant stated that he was certified as fit for pre-injury duties by Dr Hanif on 20 January 2012 as his symptoms had resolved. 82The Appellant also consulted Mr Borenstein on 20 January 2012. In his report dated 22 January 2012, Mr Borenstein stated: I diagnosed Mr Shorrock to be suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood, the result of worsening pain to his back and neck, accepted as HOD, feeling unsettled and micromanaged by new management directives and being ordered to work in areas outside the restrictions previously approved. Such changes activated mood instability such that two weeks prior to his initial consultation, Mr Shorrock broke down in front of his senior officer. .... When seen on 20 January 2012, representing his sixth treatment session, I recommended Mr Shorrock be considered for suitable training, has missed out on, namely in D.I.M.S. and PowerPoint Presentation training with regards to illustrative charts for court purposes. ... 83The Appellant tendered copies of medical reports and recommendations in relation to the incident and his state of mind. In essence, the medical reports and recommendations indicated the psychological injury suffered by the Appellant and their relation to him being on duty. 84The Appellant pointed out that he had various discussions with a number of persons, including the Injury Management Advisor, Rehabilitation Officer and others in the Command as to the need for an assessment. He pointed out that it was necessary because the duties in the Latents section were different to those in the Tenprints section, mainly because, for the majority of the time, he was required to be in a sedentary position sitting for long periods of time with little movement doing Latent comparison/Nafis work. He was ultimately notified of the assessment by email - some five months after his transfer and at his insistence. The assessment was completed on or about 22 February 2012. 85The Appellant commenced with the Latents section, Volume Crime Analysis Unit, Fingerprint Operations, Identification Services Branch In March 2012. His duties included transferring photos from DIMS system to computer systems, searching the National Automated Fingerprint Identification System and identifying fingerprints with those on databases to detect possible suspects; searching fingerprints; comparing fingerprints on WorkMate and manual systems; data entry; and court related matters including preparation of court statements (DIMS and WorkMate) and giving evidence in court. The Appellant recalled that on his first day in the Latents section he was called into Inspector Sinclair's office and told that "Your skills are wasted in Tenprints, you are to stay in Latents for the 12 hour shifts". 86The Commissioner, on 30 November 2012, declined to approve the Appellant's application for the absence from duty to be classified as hurt on duty so that he could recover his bank of sick leave entitlements for future use. His pre-injury salary had been paid from his accrued sick leave. The Appellant lodged a Notice of Appeal from that decision. 87The Appellant pointed out that he has received adequate DIMS training from colleagues, however, to date, he has not received any formalised Workmate and/or PowerPoint presentation training and was not confident in the former's uses and functionality. 88The Appellant argued that he was unable to apply for a Leading Senior Constable position because persons holding such a position are required to be fully operational and his medical restrictions prevented him from doing so. In addition, Detective Sergeant Turner's comments were incorrect that FSIMS and DIMS are rarely, if ever, used in Tenprints. He argued that FSIMS (now EFIMS) and DIMS were used in Tenprints. 89In relation to the statement of Detective Sergeant Bush, the Appellant argued that he had not received any formalised WorkMate training and was therefore not confident in its uses and functionality; he had not worked the split shift of 8 hours in Latents and 4 hours in Tenprints; and he had no trouble communicating with Det. Sgt. Bush. 90In relation to the statement of Senior Sergeant Miller, the Appellant pointed out that he was not motivated to perform work because the Command was attempting to change his working restrictions, did not conduct a workplace assessment and failed in its duty of care. In addition, he pointed out that his workplace restrictions were only met after he contacted the Police Association regarding his ongoing need to perform 12 hour shifts and his insistence that a workplace assessment be undertaken. He stated that he was now accepting of the change because he never had a problem with moving with Latents providing his work restrictions were properly adhered to. The Appellant disagreed with the evidence given by Senior Sergeant Miller that there was no reason for the Appellant to be upset given that no punitive measures or breach of his workplace restrictions were ever suggested and he had been consulted about the whole process. 91The Appellant said in cross-examination that the issue with 9.5 hour shifts directly related to the issue of having to work 4 days a week rather than 3 days a week at 12 hours per shift, as that would have increased the time spent travelling by car. 92The Appellant reported that he was ignored by Det. Sgts. Bush and Turner in that they did not give proper weight and consideration as expected of the Appellant in relation to adherence to WorkCover restrictions. 93The Appellant said that he has not spoken directly to Inspector Sinclair in relation to the matter. All communication and correspondence was forwarded to the Inspector via Det. Sgt. Bush. 94The Appellant was adamant that the proposed transfer to Latents and the subsequent conversations with Det. Sgts. Bush and Turner caused his psychological injury. Firstly, the conditions of the transfer were not strictly in accordance with WorkCover requirements, particularly in relation to the 12 hour shift requirement. Secondly, the conversations had the effect of causing him anxiety and stress. 95Although his current rosters indicate that he is to spend 8 hours in Latents and 4 hours in Tenprints, the Appellant has, in practice, been working 12 hour shifts in Latents in accordance with WorkCover restrictions.

Relevant Legislative Provisions 96Sections 11A of Part 2 of the Workers Compensation Act 1987 (the WC Act) provides: SECTION 11A NO COMPENSATION PAYABLE FOR PSYCHOLOGICAL INJURY CAUSED BY REASONABLE ACTIONS OF EMPLOYER 11A(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. 97Regulation 98 of the Police Regulation 2000 states:

Sick leave for police officers appointed before 1.1.95 (1) This clause applies to police officers appointed before 1 January 1995 who are contributors to the Police Superannuation Fund. (2) Any such police officer who is absent from duty because of infirmity of body or mind is to be allowed full pay for the whole of the period of the absence if the Commissioner so approves: (a) if the absence from duty is occasioned by infirmity arising from a wound or injury received in the actual execution of the duty of his or her office, or (b) if the absence from duty is the result of an injury (within the meaning of the Workers Compensation Act 1987) for which compensation would be payable (if the officer were a worker under that Act) under section 10 or 11 of that Act. (3) A police officer is not to be allowed sick pay pursuant to this clause if the infirmity, wound or injury arises from his or her own misconduct.

THE SUBMISSIONS The submissions of the parties are summarised below. 98The Appellant submitted that, as the Respondent chose to rely on section 11A of the WC Act rather than the Sick Leave provisions of the Regulation, the evidentiary onus fell on the Respondent. It was pointed out that it was problematic for the Appellant to make a submission in that regard without the Respondent first identifying which qualifiers under section 11 A(1) it was relying on. 99The Respondent maintained that the period of absence (23 September 2011 to 21 October 2012) was not caused by the Appellant being hurt on duty. 100The Respondent pointed out that Det. Sgt. Turner attested to the fact that the roll out/transfer programs designed to provide training in Fingerprint programs was a continual process within the Fingerprint Operations to up-skill the staff. 101It was emphasised that the subject training had not targeted the Appellant specifically. It was noted that it was the Appellant who had initiated the subject of training by forwarding an email to his superior, Det. Sgt. Bush, seeking training in three particular programs - DIMS, WorkMate and PowerPoint. 102When the Applicant's email request for training was received by Det. Sgt. Bush, it drew attention to the fact that, although the Appellant was one of their experts, he had, because of his medical restrictions, missed out on training in programs undertaken in other departments. The email sparked conversations up the chain of command. Det. Sgt. Bush gave evidence that the enquiry and assessment for rotation that it generated resulted in a broader training program than envisaged by the Appellant. It was acknowledged that it was important that a rotation program be devised in order that experts, like the Appellant, would have the benefit of programs run for other departments. The decision to implement three month rotational training in various programs was decided by Inspector Sinclair after considering the circumstances. 103As a result Det. Sgt. Bush forwarded an email to 25 experts (including the Appellant) in the Tenprints Department seeking EOIs for the first rotation. The email drew attention to the fact that if no EOI was received, then an expert would be nominated by the Respondent. The Respondent pointed out that, on the facts, a reasonable person can see it as being part of protocol/procedure and a larger process that was to be rolled across Fingerprint Operations. 104In the absence of any EOI, it was left to the Respondent to nominate a member of that Department to commence the rotation. There was no evidence as to how that nomination procedure occurred save that the Appellant was the only person who had sought the training. He was selected for the first rotation. 105A roster was posted many weeks in advance of its commencement. Det. Sgt. Bush conceded that it was an oversight by the Respondent that the proposed transfer did not specify that the rotation was for a particular duration, namely three months. 106The Respondent stressed that the only complaint the Appellant had about the roster involved the requirement to work a 9.5 hour shift. The Respondent pointed out that, according to the Appellant's own evidence, he raised his objection with the Rosters Clerk initially thinking it was a typographical error. When he realised that it was not her error, he raised it up the chain of command citing his medical restrictions. 107The Respondent contended that the WorkCover restrictions continued to be respected and adhered to during the interim. When it was brought to the attention of the appropriate Command that the roster was contrary to the Appellant's work restraints, it was rectified immediately to comply. It provided the Appellant with 8 hours in Latents and 4 hours in Tenprints. 108The Respondent emphasised that, in reality, the roster was amended prior to its implementation and the Appellant was never required to work the 9.5 hour shift. It was submitted that the manner in which the re-rostering was amended, so that it fitted with the work constraints, was reasonable in the circumstances. 109Although the Respondent did not admit that any psychological injury occurred, it submitted that, if any was sustained, then it was a by-product of reasonable action taken by the Respondent in providing training which was requested by the Appellant and with respect to provision of employment benefits. The action taken by NSW Police, in temporarily rotating the Appellant so that he could participate in specific training and re-skilling, was in no way discriminatory, or focused solely on the Appellant. 110The Respondent noted the contention that the Appellant's psychological injury was predominantly or wholly caused by Det. Sgts. Bush and Turner's failure to react to the Appellant's enquiries. The Respondent submitted that the 'failure' to take action immediately in relation to the matter was reasonable action taken by the employer in the circumstances. That is, the proper protocol was undertaken in relation to WorkCover requirements. 111The Respondent submitted that the proposed temporary transfer or rotation of the Appellant was reasonable in the circumstances envisaged by s 11A of the WC Act. It was concluded that, on that basis, the appeal must fail. 112In summary, the Respondent submitted that -

• the fact that the Appellant suffered a psychological injury was not in dispute - it was neither admitted nor denied;
• the actions taken by the Respondent were reasonable in the circumstances;
• the decision to implement a rotation program was for a broader spectrum of experts and not targeted at the Appellant alone; and
• the discussions that took place to remedy the error in the roster were in line with procedure. 113The Appellant submitted that, at all material times, he suffered from a personal injury, arising out of or in the course of his employment, which incapacitated him for his duties and for which his employment was a substantial contributing factor. 114It was pointed out that the clinical notes obtained from Dr Hanif were of assistance in that they: were contemporaneous in nature and had been created without the benefit of hindsight; indicated that they Appellant had consulted her on 23 August 2011, within days of the EOIs being sought, and reported to her his concerns about a potential change in his working arrangements; and indicated that the ideology of the disease were the events of 22 and 23 September and some months prior to those dates. 115The Appellant submitted that the Respondent's conduct in transferring him was unreasonable for the following reasons: * the training, in the Appellant's opinion, would take only 1 - 2 hours to complete and a transfer in those circumstances was unnecessary; * the Respondent did not have any, or any proper, regard to the Appellant's workplace restrictions due to previous injuries he sustained to his neck and back; and * the Respondent failed to undertake a workplace assessment before the transfer to ensure the duties the Appellant would be completing in the Latents Section were appropriate, having regard to his previous work-related injuries. 116The Appellant submitted that the evidence established the Respondent's concurrent knowledge of the physical restrictions which had resulted from his recognised injuries, and despite that, decided to select the Appellant for the rotation. It was noted that the Appellant had not submitted an EOI in the rotation and had not volunteered for it yet he was selected as the first participant in the rotation. 117It was submitted that it can be inferred, from the absence of evidence from Ms Zammit and Inspector Sinclair (the one person who knew what was going on), that the actions taken by the employer were unreasonable in the circumstances, thereby invalidating the Respondent's claim under s11A. In the absence of any evidence from the maker of the critical decisions, the Respondent cannot demonstrate, to the satisfaction of the Commission, that its action was reasonable. 118The Appellant stated that, with respect to s11A, the list for which psychological injury is not compensable is not exhaustive. 119The Appellant submitted that a significant factor in the chain of causation was the earlier accepted injury. That injury, it was submitted, cannot be wholly or predominantly caused by action, reasonable or otherwise, taken by the Respondent in the weeks leading up to the deemed date of injury upon which the Appellant relied. His ADMADM resulted initially from his physical injuries and later, from the events between 18 August 2011 and 23 September 2011. It was therefore "difficult to demonstrate ... that his injury was wholly or predominantly caused by any particular event, let alone any reasonable action on the part of the employer". 120The Appellant argued that while it may be considered reasonable for a Command to order and direct training of its staff, it was not a subject that invoked the operation of s11A of the Act which refers to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits. 121The Commission was reminded that the Respondent had not relied on "transfer" as constituting the movement from Tenprint to Latents. In relation to "employment benefits to workers", it was submitted that the terms suggests entitlements such as salary, leave and so on and there was no authority to suggest that training may be considered to fall within that heading. 122The Appellant argued against the proposition that it was all a misunderstanding and therefore the injury caused was not compensable. Both Dr Hanif and Mr Borenstein noted that the Appellant believed that he was either bullied or targeted. The Appellant relied on the conclusions summarised by the Acting President from a number of authorities cited (including State Transit Authority of New South Wales v Chemler [2007] NSWCA 249) in Attorney General's Department v K [2010] NSWWCCPD 76 (21 July 2010). 123The Appellant relied on the diagnostic criteria for an ADMADM which include: A psychological response to an identifiable stressor or stressors that results in the development of clinically significant emotional or behavioural symptoms. The symptoms must develop within 3 months after the onset of the stressor(s). The clinical significance of the reaction is indicated either by marked distress that is in excess of what would be expected given the nature of the stressor or by significant impairment in social or occupational (academic) functioning. A reaction to a stressor that might be considered normal or expectable can still qualify for a diagnosis of Adjustment Disorder if the reaction is sufficiently severe to cause significant impairment. An adjustment disorder may be diagnosed in the presence of another Axis I or Axis II Disorder if the latter does not account for the pattern or symptoms that have occurred in response to the stressor. By definition, an Adjustment Disorder may resolve within 6 months of the termination of the stressor (or its consequences). However the symptoms may persist for a prolonged period (ie longer than 6 months) if they occur in response to a chronic stressor (eg a chronic, disabling general medical condition) or a stressor that has endured consequences (eg the financial and emotional difficulties resulting from a divorce). The stressor may be a single event or there may be multiple stressors. Stressors may be recurrent or continuous. Stressors may affect a single individual, an entire family or community. Some stressors may accompany specific developmental events. Adding mixed anxiety and depressed mood, should be used when the predominant manifestation is a combination of depression and anxiety. 124The Appellant stated that he did suffer a psychological injury arising out of, or in the course of, his employment. The Appellant pointed out that the Respondent had not discharged the onus by satisfying the Commission that the actions it took were reasonable and therefore it had no defence available to it under section 11A of the WC Act. It was concluded that, on that basis, therefore, the Commission ought to allow the appeal. 125The Appellant's written evidence may be summarised as follows: The Respondent did not provide any contradictory medical evidence to the evidence provided by the Appellant from both his treating practitioner and his psychologist to the effect that he was suffering from an adjustment disorder with mixed anxiety and depressed mood related to workplace events. There were established WorkCover restrictions in relation to the Appellant. He was on permanently restricted duties: + Appellant to work no less than 12 hour shifts + No more than 4 days a week; A workplace assessment should have been undertaken to determine the suitability of the workplace for the Appellant in view of his ongoing physical injuries; The Appellant was not getting the proper training required in the use of new technologies and softwares currently used in the course of duty; A rotation program was introduced partly as a result of the Appellant's ongoing enquiries and issues; The rotation program was longer and vague in its description, contrary to the Appellant's understanding of the time the training would take (months as opposed to hours); The rotation program effectively reduced the Appellant's work shifts from 12 hours in Tenprints to 9.5 hours in Latents; No workplace assessment was carried out in relation to the work in Latents given the Appellant's restrictions prior to the roster being finalised; The reduction in shift hours, whether perceived or actual, and the lack of workplace assessment, resulted in non-compliance with the Appellant's WorkCover restrictions; That the above actions and behaviour of the Detective Sergeants and Inspector was perceived to be bullying against the Appellant, resulting in psychological injury in the form of ADMADM; That, as a result, the Appellant took sick leave shortly after commencement of the new roster; That a workplace assessment was only carried out after the sick leave was taken; and That the sick leave should be considered injured on duty and eligible to be claimed due to injury being resultant from employer.

CONSIDERATION 126The Respondent relied on the statutory defence contained in s 11A of the WC Act in that the various acts by the Respondent were reasonable and therefore the injury caused to the Appellant is not compensable. 127The employer bore the evidentiary onus in a s 11A defence (Attorney General's Department v K.) of proving that any of the elements of that section applied to the facts of the appeal, including whether the relevant conduct fell within one of the nominated categories. Furthermore, in order for the Respondent to discharge that onus, it also needed to prove that its conduct was reasonable. 128I accept the submission of the Appellant that the first step in the process is to identify an injury. The only medical evidence before the Commission is that produced on behalf of the Appellant. Both Dr Hanif and Mr Borenstein agree that at the relevant time the Appellant was suffering from ADMADM symptoms or depressed mood, in other words, a psychological injury. 129The question of whether his psychological injury is compensable is determined by a consideration of whether it was highly or predominantly caused by reasonable action taken, or proposed to be taken, by the Respondent. 130Section 11A of the WC Act relates to 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 works or provision of employment benefits to workers". The email of 18 August 2011 did not use any of those terms. It referred to "rotation" of the experts in order to provide training. In my view the rotation is better described as a temporary "transfer" which would invoke the provisions of Section 11A. In fact, it has been described as a transfer by the Appellant in his evidence before the Commission and recognised as such by his treating practitioner, Dr Hanif, in her report dated 23 September 2011. 131The evidence from the Respondent's witnesses was to the effect that the Appellant had complained on a number of occasions about the lack of formal training in the use of WorkMate. In early August 2011, he forwarded an email to Det Sgt Bush formally seeking training in a number of systems. Those complaints precipitated an approach to Inspector Sinclair to approve a training program for Tenprint staff. The Appellant was already working with the Workmate program. He had made his own enquiries and determined that the training he required could be achieved in a number of hours. Nevertheless, Inspector Sinclair determined, as was his right, to provide detailed training in the relevant recording systems to assist staff better perform their duties. In the absence of any expressions of interest to commence the rotation, the Appellant was selected to be first cab off the rank. I do not consider there to be anything sinister about that selection nor do I consider that decision to be "targeting" the Appellant. It made sense that the staff member who initiated the request should be rotated first. It is obvious, from the evidence, that the Appellant did not agree with the time period determined for the training. 132The evidence before the Commission is that there is a workplace limitation confining work to not more than 10 hours per shift in Latents. The Appellants return to work restrictions required him to work no less than 12-hour shifts. The Appellant became anxious when the Rosters clerk put out a roster indicating that he would be not be working 12 hour shifts in Latents. It is noted that the roster was not to commence prior to 18 September 2011. The timeline indicates that the Appellant: Attended on Dr Hanif on 23 August 2011 concerned about the potential change in his working arrangements. Dr Hanif recorded: Mr Shorrock looks very disturbed and anxious, worried that all the years of hard work trying to alleviate his back and neck pain and to continue to work at the same time is going to cause regression.... On 24 August 2011, he sought the assistance of the Police Association because nothing had been done to allay his concerns. On his evidence, the Police Association intervened and ensured that the Appellant continued to work 12 hour shifts. Contacted Ms Heasman, Rehabilitation Unit and the Hurt on Duty Unit, on or about 24 August 2011 to alert her to the impending breach of the Respondent's duty of care towards him. 133There is no evidence before the Commission that the Respondent took any further action to enforce his transfer to Latents on 9.5 hour shifts following his approaches to the above, particularly following his approach to the Police Association. The timeline indicates that the Appellant: Attended on Dr Hanif on 6 September 2011 who recorded that: ..... The on-going talk, rumour and innuendo about Mr Shorrock possibly reducing his 12 hour shifts has upset him greatly and caused him anxiety.... It is therefore preferable for Mr Shorrock's physical and mental state that he continues duties he is in this present time - in the Tenprint Section and not in any other section that would exacerbate and aggravate his current back and neck related problems, due to a change in the type of duties or a reduction in his on-going need to work 12 hour shifts. 134There was no evidence before the Commission of on-going talk rumour or innuendo apart from the discussions initiated by the Appellant to determine how much training time was required. The evidence before the Commission indicates that the work involved the same department; a different tabulation on exactly the same program; a department which had already undergone workplace assessment and continued to be monitored in that regard; same ergonomic designer chairs and height adjustable electronically adjustable tables. The only difference was the fact that Latents had a time limit of 10 hour shifts imposed on it. 135It is noted that the proposed roster was not effected in relation to the Appellant on 18 September 2011 and he continued to work his 12-hour shifts in Tenprints. 136Nevertheless, the Appellant continued to agitate the issue. On his own evidence, on 21 September 2011, he made enquiries from a number of trainers and supervisors and determined that only a few hours were required for the training he had requested. With respect, the amount of time and detail required to be invested in training for staff is a management prerogative and is not a matter to be determined by individual staff members. 137Also on his own evidence, the Appellant said that he met with Det. Sgt. Bush on 22 September 2011 to argue about the duration of the training. Det. Sgt. Bush, in cross-examination, described the Appellant at the very least to have been "animated" and "probably frustrated" as he attempted to get his point across. Det. Sgt. Bush confirmed to the Appellant at that meeting that Inspector Sinclair had agreed to allow the Appellant to work 12 hour shifts - 8 hours in Latents and the remaining 4 hours in Tenprints. The Appellant recalled the following conversation: Bush: Mr Sinclair has agreed to allow you to work 12 hour shifts and is aware of your situation. He will let you work 8 hours in Latents then 4 hours in Tenprints. [emphasis added]. Shorrock: For about 10 full years I have entered into workplace negotiations with the Department/me/Doctor etc allowing me to work in Tenprints in a negotiated agreement which encompasses not only the 12 hour restriction but others also. Bush: I thought the major thing was the 12 hour requirement. Shorrock: That and all the other restrictions and workplace agreements. I asked numerous people and they said DIMS training would take somewhere between 5 minutes and 2 hours only. Some trainers and Sergeants have never had DIMS training. I am being discriminated and picked on because you want me to go to Latents for two months to train on DIMS when there (sic) have never been trained. Bush: Sergeant Forsythe is preparing a DIMS training course at the moment. Shorrock: When Sergeant Forsythe works out how long it takes and it is a formalised DIMS training program, then by all means allow me to do the training but not before as I believe and it is obvious that I am just being picked on. Bush: I am just doing what Inspector Sinclair wants. 138In other words, the issue troubling the Appellant, that is, compliance with the requirement to work not less than 12 hour shifts, had been resolved by 22 September 2011. 139The Appellant gave evidence that they had to go through a chain of command. He also gave evidence that he felt that his objections had been ignored by Det. Sgts. Bush and Turner. Those matters were addressed in cross-examination as follows: Petrolo: You agree that you immediately went and spoke to Mitchell Turner and Sergeant Bush? Shorrock: I would have spoken to them, yes. On numerous occasions. Q: When that roster first came out you spoke to them? A: Yes. Q: In paragraph 13 you say that your comments to them regarding these issues were ignored? A: Yes, I said that. Yes. Q: That's not true, is it? A: What -if you want me to clarify what I meant, what that means to me is that I wasn't - the problems that I had with going on a reduced hours to affect my restrictions wasn't being addressed so as far as being ignored - technically they wouldn't have ignored me, but from my point of view they didn't give it the credence and the weight that I was giving it at the time in relation to my workplace restriction. That's what I meant by ignore it, all I can do is just give them that information, which I did and say I've got this, this, this and this in place and because nothing came back in the affirmative, to keep my restriction, honour my restrictions as 12 hours, from my point of view I say that they ignored me, in that respect. Q: Right. Because isn't it the case that Sergeant Bush actually said to you that he needed to go and speak to Inspector Sinclair about it, on your behalf? A: I don't recall that conversation at all. All I recall that Tony Bush said to me was that during one height of the argument I was having with him was that Mr Sinclair's making, you know, doing - paraphrasing, Mr Sinclair's telling me to do these things, or words to that effect, so my indication from that was that Mr Sinclair was making the decisions, being in charge of Fingerprint Operations, and Tony Bushy, or Sergeant Bush, was just acting on the direction given to him from Mr Sinclair. Q: Right. and so if you raised something with Sergeant Bush with respect to your work conditions then it's probable that he wouldn't be able to rectify it immediately? A: That's incorrect. He was acting Commander of the Tenprint Section. Q: Well you just gave evidence that you understood that these decisions were coming from Inspector Sinclair? A: Yes but the subordinates can still make decisions. it depends - I don't know what discussions Mr Sinclair had with Mr Bush. I don't know - I don't know for example how adamant that Mr Sinclair was - don't forget during all this that was going on I have not spoken to Mr Sinclair. Once. Not one has he asked me to come into his office and asked, from my point of view, and I find that very strange, being the Commander of the Fingerprint Section, when he's got one of his subordinates which has a major problem and he doesn't want to speak to me. Q: And you've never written to Inspector Sinclair have you? A: We have to go through chain of command and it's drummed through us, to go through chain of command.... Q: But the evidence you just gave is that there's a chain of command and Inspector Sinclair is a higher rank than Sergeant Bush, correct? A: Yes...... Q: Sergeant Bush said to you that these directions were coming from Inspector Sinclair? A: He said I'm just doing what Mr Sinclair told me to do. 140The Appellant gave evidence that he could not sleep that night thinking about the attempts to discriminate against him due to the lack of adherence to medical restrictions and lack of workplace assessment. The medical restrictions had been adhered to by the Respondent once the matter was raised by the Appellant in that the proposed roster was never implemented. Whilst the evidence indicates that there was a workplace assessment undertaken on or about 24 February 2012, the uncontradicted evidence before the Commission was to the effect that both the Latents and Fingerprints sections are within the Fingerprint department. Experts working in both sections utilise the same database on the same computer system in the same floor and in the same location. As others had also experienced similar neck and back injuries in the past, the department is equipped with ergonomic designer chairs and height adjustable electronically adjustable tables. The uncontradicted evidence of Det. Sgt Miller also indicates that workplace assessment is a continuing institutional process. 141The Appellant met with Det. Sgt. Turner on 23 September 2011. The Appellant broke down during a conversation with Sergeant Turner on 23 September 2011 causing him to once again consult Dr Hanif who recorded: Looks unhappy, distressed, teary, couldn't talk for a while due to high emotions. As a result of that meeting, Det. Sgt. Turner submitted an Incident Notification Form (paragraph 73 above). Although the Appellant commented on some of the comments contained in that Form in his evidence, he but did not contradict the following contents: - that he has been increasingly resistant to the move citing his shift hours; and - It was confirmed again that the Command had given express approval for him to perform 8 hours in Latents and 4 hours in Tenprints. 142The Appellant consulted Dr Hanif on 23 September 2011 and obtained a WorkCover medical certificate for the period 23 September 2011 - 7 October 2011. During another consultation on 7 October 2011, the Appellant obtained a further WorkCover medical certificate for the period 7 October 2011 - 21 October 2011. There was a gradual return to work from 22 October 2011 as a result of consultation between Dr Hanif and Mr Borenstein. 143A report from Mr Borenstein to Dr Hanif, dated 7 October 2011, was tendered in evidence by the Appellant. He diagnosed the Appellant as suffering from ADMADM which he attributed to being a "direct result of chronic pain to back and neck, which is accepted as HOD. Chriss is feeling unsettled the result of new management directives and being ordered to work in areas outside his comfort zone, which in turn has activated mood instability..." 144Mr Borenstein reported on advice he had been provided with by the Appellant:: Over the last nine years Criss has felt the increased pressures of work. Recently with the introduction of new management, his work restrictions have been overlooked. He was forced to work eight hour shifts which have meant a further five hours travelling time to work, which would have impacted on his chronic back and neck injury, resulting in increased pain with symptoms of depression and anxiety. ... That is grossly incorrect. The proposed new roster was never implemented and he did not incur any additional travelling time. 145Mr Borenstein also reported: Criss, with the assistance of the Police Association, objected. He was told he could in fact work twelve hour shifts, "they put me in one section for eight hours, and then four hours in another section, it's just unworkable". Criss feels targeted. He requested further training, and taken out of the section he quite enjoyed. He now feels displaced and uncertain with regards to his work future. He aspires to return to work as a Fingerprint expert. Once again, the advice he gave to his psychologist was grossly incorrect. Both Latents and Tenprints are in the same department in the same room. There was no evidence before the Commission that it would have been unworkable. He was aware at that point in time, as the evidence showed, that the rotation would have been for the period of the roster - one month. He was also aware that the training was merely to up skill the experts. There was absolutely no discussion about not returning to his position. 146Although there is no contrary medical evidence before the Commission, in view of the above, I am not satisfied that the diagnosis was based on fact. 147Mr Borenstein provided a further report, dated 22 January 2012, in which he, interestingly, recommended that the Appellant be considered for suitable training he had missed out on - namely in DIMS and PowerPoint Presentation training. 148I am satisfied that the Respondent reacted to complaints from the Appellant that he required up skilling; As was his right, Inspector Sinclair chose to approve the training for all staff (approximately 10 experts including the Appellant) - not just in one aspect but in a number of programs; in the absence of any EOI, the Appellant was selected for training first which, in my view of the evidence was not targeting the Appellant but acknowledging the fact that it was he who initiated the request for additional training; the Respondent was in error in overlooking the fact that he needed to work 12 hour shifts but immediately it was brought up, and particularly by the Police Association, action was taken to ensure that he continued on 12-hour shifts; and an accommodation was made for him to work 8 hours in Latents and 4 hours in Tenprints however the Appellant continued to argue but this time about the duration of the training having conducted his own investigations. I have already indicated that what and how much training is provided to staff is a management prerogative. 149I am satisfied that the Respondent has discharged the onus and established that the Appellant's psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to a temporary transfer.

ORDERS 150Matter IRC 149 of 2013 is hereby dismissed.

COMMISSIONER DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 July 2014