1. The respondent's evidence includes a "Support Timeline" which is not dated or signed, which indicates that the applicant commenced her employment and orientation on 7 October 2019[1].
2. During orientation it was identified that there were significant gaps in the applicant's ability to pick up on how to work in the role and take on feedback/guidance around visits, report writing, documentation and recommendations.
3. It was noted that the applicant arrived late to orientation on one day and had only later explained that her friend had passed away. Feedback was given that the applicant was highly anxious and very shaky in conversation.
4. According to file notes written by "H Dowse", after returning from orientation in Melbourne there were multiple instances where the applicant's mentor had asked her to complete tasks and the applicant had declined. The applicant was observed to use her personal phone whilst with clients and to have administered eyedrops in front of a client's family member. The applicant was noted to have talked in an abrupt tone of voice to staff when on visits. The applicant's mentor had asked her to soften the way she communicated and the applicant disagreed.
5. Reference was made to an incident where the applicant had her "daughter" on loudspeaker to interpret for a client. The applicant was noted to have stated to her mentor and others that the mentor could have stopped her and that she did not think she did anything wrong and felt she had not made any breaches to privacy.
6. On 1 November 2019, the applicant was asked to use an application to practice writing up notes and reports. The applicant said she would not do so as she had done this during orientation in Melbourne. Despite encouragement, she still refused.
7. Between 18 and 29 November 2019, concerns were raised regarding the applicant's ability to assess risk in the triage process. Significant issues with time management were noted. According to the document, despite supports being offered, there had been no improvement in time management and there had been instances where the applicant had stated that she had finished a task when in fact she had not.
8. It was noted that the applicant had been observed speaking negatively about her mentor to another staff member in relation to the incident where she had used her "daughter" on the phone to interpret. In a discussion with the applicant's team leader about the matter, the applicant had denied this and went to leave the room before the discussion was over. The applicant was noted to be shaky and short in her response.
9. It was noted that the applicant was yet to complete a phone shift. Arrangements were made for the applicant to do this but when the time came she did not log in for the shift. The applicant was asked to login and responded that she was completing a service activity. The applicant was asked to save that and log into the phones. Over five minutes later, the applicant was still not logged in. On further questioning, the applicant said she did not know how to login.
10. The document referred to incomplete notes and reports having been discovered in the week beginning 2 December 2019. It had been noted that during a visit to a client, the applicant was highly anxious and distressed because she had gotten lost and was late. It was reported that the applicant needed to watch her tone of voice as it was bit authoritative at times.
11. Issues with incomplete reports were noted again in the week beginning 9 December 2019, including a report that the applicant had said her mentor had seen but the mentor had denied this.
12. Reference was made to the applicant arriving at work over an hour late without informing her team leader that she had an appointment.
13. On 15 December 2019, it was noted that the applicant remained unable to write reports and take on feedback. The applicant was noted to be taking extensive time to complete triages and providing extensive information in an illogical format to her team leader when discussing cases.

1. A number of emails from Ms McCaskie addressed to the applicant are in evidence in relation to incomplete work. An email sent on 6 January 2020 noted that there had been a number of emails with spelling and formatting issues along with two emails that were sent with no content or incorrect dates. The applicant was asked to ensure that all emails were checked and double checked before sending.

1. A letter dated 17 December 2019 from Ms McCaskie to the applicant noted that the applicant was in the probation period of her contract. The applicant was required to attend a meeting to discuss and review her progress to date on 20 December 2019. A number of "issues/concerns" were identified including a failure to adhere to the respondent's mission statement of "serving with passion", "communicating well" and "valuing teamwork and sharing responsibility". Reference was also made to inappropriate and unprofessional behaviour in regard to privacy and failure to complete tasks/duties within set timeframes and meet KPIs. It was noted that feedback on the applicant's performance had been provided on numerous occasions.
2. The applicant was provided with the details for the Employee Assistance Program.

1. A record of a support plan discussion dated 20 December 2019 indicated that a discussion was held between the applicant, Ms McCaskie and Damien Lisney to develop a support plan with strategies to assist the applicant to manage her caseload and improve work performance. The issues identified as being of concern included reports not being available in a timely manner, the content of reports, documentation of on-site visit notes and post visit emails not being completed in accordance with guidelines, time management and follow through on requests and adherence to the respondent's "Mission in Action" policy.
2. The record documented that the support plan would be in place for four weeks and would be reviewed at the end of the four week period.
3. Notes of the meeting indicated that the applicant advised that she loved the role and felt she was good at it but some things weren't fair and she felt she was under the microscope. The applicant felt undermined and as if there were questions about her honesty.
4. Ms McCaskie was recorded to have indicated to the applicant that considerable accommodations had been made to her workload. Concern was expressed that the applicant was not meeting the requirements of her role. Asked what the applicant felt were the barriers to her success, the applicant admitted struggling with logging onto phones but indicated that she did not feel that Ms McCaskie liked her and was second-guessing her work. The applicant suggested there should be a booklet with examples of phrases and recommendations.
5. The applicant was advised that a coaching plan was to be put in place to provide the applicant with an opportunity to perform in her role. The applicant was to attend meetings on Mondays and Fridays and encouraged to ask questions if she was unsure of her duties, policies and procedures. It was reinforced that the organisation had key performance indicators (KPIs) and was caring for vulnerable people. At the end of the meeting, it appeared the applicant was upset. Mr Lisney asked the applicant if she wished to go home but the applicant insisted she had a task to complete.
6. According to the notes, during the meeting Ms McCaskie and Mr Lisney asked open-ended questions and gave the applicant opportunity to respond. The conversation had to be redirected numerous times to keep the applicant on topic. The applicant owned some points but generally communicated in a defensive manner.
7. A file note of a meeting between the applicant and Colm Cunningham on 23 December 2019 recorded a discussion in relation to an incident report. The note suggests that the incident report completed by the applicant lacked detail and was misleading. It was noted that the applicant had been visibly distressed in the office that morning. The applicant was offered the Employee Assistance Program leaflet but indicated she had a personal support in place. The applicant indicated that she could not afford to fail in the role and would be homeless in three weeks if she lost her job. The applicant said she wished she had not left her last role.
8. Mr Cunningham indicated that he was aware that the applicant had been late for a meeting that day. The applicant gave multiple reasons for this. Mr Cunningham indicated that the applicant needed to work on her humility to receive feedback. The applicant indicated she did receive feedback well but Mr Cunningham said a number of sources had indicated otherwise.
9. The applicant raised issues around trust and others not telling the truth. Asked for examples, the applicant raised some concerns about her mentor. When Mr Cunningham indicated that this would be discussed with the mentor, the applicant appeared concerned and talked about how amazing the mentor was. The applicant also raised issues with Ms McCaskie trusting her and gave an example of when the applicant was asked if her mentor had reviewed report. The applicant expressed concern that her past mistakes were constantly being brought up.
10. A record of a support plan discussion on 27 December 2019 between the applicant and Rebecca Mazzone noted that the applicant had not completed a report as she had been asked to prioritise another report. The applicant was to complete the report by close of business that day. The applicant was noted to have suggested that reports could take up to four hours particularly in tricky cases. Ms Mazzone explained that a report should take approximately one and a half hours. Asked if she had undertaken report writing training, the applicant was unsure. The applicant expressed concern that her reports were being reviewed by different people and this could be a challenge as different feedback was being given. The applicant was advised to refer to the language guide and report writing tips.
11. A record of a support plan discussion on 30 December 2019 noted that the applicant had not met the deadline for a report. It was noted that the applicant was carrying a lower caseload. Notes were also made with regard to some missing detail and documentation.
12. A support plan discussion was held on 3 January 2020 in which Ms Mazzone again indicated that timeframes on cases had not been met. Ms Mazzone acknowledged that the applicant had achieved some tasks but not within agreed timeframes.

1. A letter to the applicant from Ms McCaskie dated 6 January 2020 invited the applicant to a meeting to discuss her probationary period on 7 January 2020. The applicant was advised that she was entitled to bring a support person to the meeting and was provided with the details of the Employee Assistance Program.

1. A letter to the applicant dated 9 January 2020 from Andrew Haszard, Head of Operations, noted that the applicant's employment was subject to a six-month probationary period intended to determine how the applicant was performing in the role.
2. The letter stated that during the applicant's employment there had been a number of discussions about the applicant's ability to meet the requirements of her role. The applicant had been provided with significant support, including a performance coaching support plan and adjustments to her workload.
3. A review of the applicant's performance had been undertaken and it had been decided to terminate the applicant's employment during probation. The applicant was provided with the details of the Employee Assistance Program.

1. The respondent relies on a written statement signed by Morag Keegan on 3 February 2020.
2. Ms Keegan said the applicant's duties were similar to her own.
3. Ms Keegan said the training provided by the respondent was very good. There was an initial orientation, processes and policies and mentors were assigned for as long as required. Team leaders were approachable and there was access to advisors to check-in and review progress. Ms Keegan said she was asked to be the applicant's mentor.
4. Ms Keegan said she found the applicant to be up and down and said she appeared "really, really nervous". Ms Keegan said she took the applicant aside and tried to reassure her that they would work as a team. The applicant seemed stressed when she came in each day.
5. Ms Keegan said she found, even from the beginning, when she gave feedback to the applicant she would say "I don't need to do that" or "that's not right". The applicant did not appear to respond well to feedback or take it on board. The applicant appeared to be annoyed when Ms Keegan tried to give her feedback in relation to phone calls saying, "what else could you possibly advise?". At other times, the applicant would say she had already covered certain training in orientation and did not need to do things again. In November 2019, Ms Keegan recommended the applicant use a training tool on the system, to which the applicant responded that she would not as there was no point.
6. Ms Keegan said that in the beginning she may have been a little overwhelming to the applicant as she felt the team was just so great. They had a cup of tea at one point when the applicant was nervous and she told her she didn't need to be nervous due to all the support available.
7. Although the applicant felt that Ms Keegan did not have time for her, Ms Keegan said that she checked in on the applicant every day and stayed back to help her. Only on one occasion did Ms Keegan have to leave earlier than the applicant but other people were available and she had spoken to them about being available to assist the applicant.
8. When going through her cases, the applicant would always say everything was okay and on track but Ms Keegan would later find reports that were late or at the last minute the applicant would say she could not get something done in time.
9. Ms Keegan said she tried to be positive and see the good side of the applicant and felt sure she was giving sufficient support.
10. Ms Keegan recalled the applicant's first patient visits in November 2019 during which the applicant was observed texting or on the phone in front of the client. The applicant also applied eyedrops during a visit. Ms Keegan suggested afterwards that this was inappropriate and she could have stepped out. The applicant's response was, "so why didn't you tell me then?"
11. Ms Keegan described another incident on the same day when the applicant used her son's girlfriend to translate for a Russian client. Ms Keegan stated that the applicant had earlier told her there was some form of tragedy in the family and she was keeping her eye on the phone. The applicant had said something about her daughter on the phone and Ms Keegan thought this was the call the applicant had been waiting for so said yes go ahead. When Ms Keegan indicated that they had to discuss a breach of privacy due to the phone call after the visit, the applicant told Ms Keegan she was wrong and was very annoyed with her.
12. Ms Keegan said that she was sometimes asked to review the applicant's reports before they were submitted. Ms Keegan recalled making some suggestions to a report but when it went for review none of her suggestions were included. There was another report which the applicant said Ms Keegan had checked but she had not.
13. At one stage, Ms Keegan wrote out a list of how the applicant's week should run and put it up on the wall. Ms Keegan noted that the applicant did not take notes when she was giving feedback. Ms Keegan provided links to resources and examples of her own reports to assist the applicant.
14. Ms Keegan said she found dealing with the applicant exhausting. Others were noticing that the applicant was not coping. Ms Keegan said she did wonder whether someone else might be a more suitable mentor.
15. Ms Keegan expressed the view that the applicant's performance was well below what was required and not comparable to others in the role. The applicant's caseload was quite low and she just wasn't focused. Ms Keegan described the applicant as labile and often quite teary. The applicant would not listen to Ms Keegan's suggestions.

1. The applicant's team leader, Helen McCaskie, signed a written statement on 3 February 2020.
2. Ms McCaskie noted that the applicant underwent a comprehensive training program commencing with a four day orientation. The applicant was assigned a trained mentor and received an orientation booklet. As a new starter, the applicant shadowed an experienced consultant, reviewed processes and got support from team leaders at least on a weekly but often on a daily basis. Advisors were available to assist in reviewing and discussing cases.
3. Ms McCaskie said she found the applicant to be very anxious, uncertain and shaky at times. The applicant had difficulty following requests or what had been agreed and discussed. The applicant did not take feedback very well, frequently blaming others.
4. When discussing issues, the applicant would go off on tangents. The applicant was often late for meetings and this restricted the time available to support her. The applicant regularly made formatting, spelling or grammatical errors, which were important although not the prime concerns discussed with her. Ms McCaskie would meet with the applicant weekly and ask her to think about the gaps in her training so she could be supported. On no occasion was the applicant able to identify anything specific.
5. Ms McCaskie identified that the applicant required extra support and approached the consultant advisors. They indicated they had already provided considerable support. Ms McCaskie then appointed Debbie Maddicks to be a central point of contact to support the applicant rather than have her approach a number of staff.
6. In a weekly catch up on 16 December 2019, it was identified that there were big gaps in every case which would ultimately impact on client service and company reputation. The issues went beyond simply formatting or spelling but were, for example, mixing up clients that were being triaged.
7. Ms McCaskie said that when she commenced as team leader, the applicant had been employed for about four or five weeks. The applicant was starting to carry her own caseload in order to gain experience. Ms McCaskie also asked her to complete shifts on the phone to improve her experience but the applicant commented that the phone shifts could have been allocated to her colleagues as they had more capacity. Ms McCaskie advised the applicant that some consultants were carrying over 20 cases. Ms McCaskie also highlighted the importance of the applicant gaining experience on the phones and said that there were people to support her while she learned the phone role.
8. Ms McCaskie disagreed that she focused only on the negatives as it was not her nature. Ms McCaskie recalled discussing some of the applicant's notes in a positive way. The gaps in the applicant's work were, however, so significant that these were the primary focus at each catch up.
9. Ms McCaskie denied ever accusing the applicant of lying although there were instances where the applicant had said things which Ms McCaskie found out to be incorrect.
10. Ms McCaskie said she and Damien Lisney met with the applicant to advise her of the support plan on 20 December 2019. There were several catch ups prior to the meeting and on each occasion there was a gap in the applicant's performance. Sometimes the applicant would get up to leave the room without realising the meeting was still going.
11. On 21 December 2019, a zoom conference with the applicant, Rebecca Mazzone and Ms McCaskie had been arranged to follow up on the support plan actions before Ms McCaskie went on leave. This was an important meeting due to commence at 9.00am. At 9.10am the applicant asked another consultant to message Ms McCaskie to advise she had been delayed. Ms McCaskie and Ms Mazzone had another meeting at 9.30am which had to be pushed back due to the delay. After emailing the applicant that the meeting needed to proceed, the applicant could not logon and became very flustered.
12. Ms McCaskie said that when she returned to work on 6 January 2020, she met with the applicant who advised that she was going well and was up to date. There were, however, still gaps present and Ms McCaskie did not see any improvement in the applicant's performance at all. Ms McCaskie showed the applicant two emails that had been sent on 31 December 2019 with no content. The applicant was not aware how this had occurred and was not aware that she had sent blank emails. Ms McCaskie found it difficult to support a person who had no insight into her errors.
13. Ms McCaskie had significant concerns about the impact the applicant was having on Ms Keegan's team. Ms Keegan was very professional and kept everything confidential but was very uncomfortable with the situation. The applicant's caseload was less than others and Ms McCaskie did not believe that any were overly complex. Ms McCaskie provided the applicant with mainly lower-level cases and mainly based on location. The applicant would not have received any cases in her first few weeks.
14. Ms McCaskie denied instructing the applicant to complete a particular task by 3.00pm then assigning her work on the phone so she could not complete the task. Ms McCaskie did recall asking the applicant once to go on the phone for an hour or so when she had some overdue reports that needed to be completed.
15. Ms McCaskie said that while sometimes circumstances could delay a report, the instance where a facility received an influx of residents due to a bushfire crisis should not have affected the timing of the report as the clock started after the visit was completed.
16. On 6 January 2020, the decision was made, in conjunction with Andrew Haszard, to terminate the applicant's employment. The meeting was scheduled to be held on 7 January 2020 but postponed as the applicant called in sick that day. The meeting was not rescheduled as notification of the workers compensation claim was received. The termination letter was sent and emailed to the applicant on 9 January 2020.
17. Ms McCaskie expressed the belief that she had given the applicant every opportunity and support. They were lenient and flexible with regard to the applicant's workload and letting her focus on report writing. The applicant did not appear to retain the training she had been provided. Further errors in the applicant's work had been noted since her termination including an email sent to a wrong facility for a client and a missing letter.
18. Ms McCaskie received feedback that the applicant was oddly frazzled at times and that staff were terrified of the applicant's driving. When one asked to get out of the car earlier than the destination, the applicant reportedly said, "you will not tell me what to do, you will get out when I say so."

1. Mr Damien Lisney, a human resources partner employed by the respondent, provided a statement which was signed on 3 February 2020. Mr Lisney said he first met the applicant when she was placed on a support plan.
2. Mr Lisney said the respondent provided a comprehensive induction program and then allocated mentors. Each new employee was given a book which included an area for the consultant and their team leader to sign off on milestones for each week and month. Consultants had access to Microsoft Teams which allowed them to chat with other team members for advice and guidance.
3. Mr Lisney said that during the meeting on 20 December 2019, the applicant was very defensive, curt and gave reasons as to why she did things a certain way. Mr Lisney had to ask her to sit down as she was standing up to leave when the meeting was not complete.
4. Mr Lisney described an occasion when the applicant used an Uber to attend a client at a cost of over $300 instead of a fleet vehicle available for that purpose. When the applicant was asked if she understood the policy, it took around 10 minutes to get a clear answer from the applicant. The applicant admitted she understood the policy but had forgotten how to complete the process.
5. Mr Lisney said that the applicant was provided with a support plan on 20 December 2019. Mr Lisney was not aware if Debbie Maddicks went on leave suddenly but said Ms Mazzone remained available to assist the applicant.
6. Mr Lisney said he had been advised by Ms McCaskie that the applicant's caseload was nowhere near the volume of other consultants and no more complex than others. Each case had its own complexities as they dealt with clients with dementia and different behaviours.
7. As an organisation working under a government contract, the respondent was required to meet certain KPIs regarding reporting, deliverables and milestones. The applicant was given appropriate training on these KPIs but over a period of time had difficulty adhering to them.
8. Mr Lisney said that the organisation had quite an ageing workforce and there was no age requirement for the role.
9. After additional issues with the applicant's performance, it was decided to terminate the applicant's employment while she remained under probation.

1. Mr Colm Cunningham, Director, provided a written statement on 30 January 2020.
2. Mr Cunningham recalled his first interaction with the applicant at the orientation. There were approximately 10 people in the room and he asked each person to introduce themselves. Most people took about one minute to do this. The applicant spoke for about 10 minutes, about her work history including volunteer work for the Rural Fire Service and noted that she had been through personal bereavements in her past. Mr Cunningham had to encourage the applicant on three occasions to conclude her introduction.
3. Mr Cunningham said Ms McCaskie was very experienced, detailed and process-oriented. Mr Cunningham said the applicant often did not look happy and was hard to engage with.
4. Mr Cunningham said two incidents had been brought to his attention including the incident where the applicant used her son's girlfriend to translate for a Russian client by telephone. This was reported as a breach of privacy by the applicant's mentor and logged in the risk management system.
5. The second incident occurred when the applicant lodged an incident report regarding a client punching her. Mr Cunningham said he went to see the applicant the next day to offer assistance and check that she was okay. The applicant seemed distressed and Mr Cunningham had observed the applicant moving around the office speaking to others about her job. When Mr Cunningham spoke to her about the incident, the applicant changed the story and said she had not been punched. Mr Cunningham still offered support but the applicant was very quick to say she had her own support. Mr Cunningham spoke with the applicant about her struggling with parts of the role, noting that others in her cohort were covering more cases. Mr Cunningham advised the applicant to work with her manager on the things that were holding back her performance.
6. The applicant apparently saw this as an escalation and said she would be homeless if she lost the job. The applicant said people kept bringing up the past. The applicant made some accusations about her mentor, Ms Keegan, suggesting that she was nervous, did not want to be a mentor and was too unwell to work with the applicant. When Mr Cunningham suggested that they gather some more information on this and sit down with the applicant's managers, the applicant then said that Ms Keegan had been the best mentor. There was no consistency in what the applicant was saying.
7. Mr Cunningham said he had discussed Ms Keegan's skill set with Ms Maddicks, who said she had personally trained Ms Keegan as a mentor, that she had previously been employed as an educator and knew the respondent's processes very well.
8. Mr Cunningham said there was a clear plan for staff during their orientation. The applicant would have had a lower caseload than other experienced consultants. The orientation program specified how many visits new staff were to attend with other staff and their mentor. As a new starter the applicant should not have been given complex cases and would normally be allocated simpler matters. The applicant had not raised the complexity of any of her cases with Mr Cunningham.
9. Mr Cunningham expressed the belief that adequate support for the applicant was in place from the time she was put on a support program. Although Ms Maddicks was sick for a day over Christmas as she had lost her voice, Ms Mazzone was available throughout the Christmas period, as was another experienced consultant. Ms Mazzone met with the applicant on a number of occasions during this period in accordance with the support plan.
10. Mr Cunningham said that approximately halfway through the probation period it was apparent that the applicant's inability to grasp certain parts of the role was not normal and that her capabilities were causing the applicant and her colleagues a degree of stress. It was decided to terminate the applicant's employment whilst under probation.

1. Clinical records from The Madison Medical Practice St Ives include a consultation on 7 January 2020 recorded as follows:

Work as a Dementia consultant in the Dementia support worker

First time when she went to see a client with her mentor

Then Karen offered her mentor that Karen's Daughter-in-law in UK speaks Russian

after finishing the assessment karen's mentor mentioned her that karen breached the confidentiality of the patient and

They are also giving her very hard time in other areas of job

three children all educated and finishing graduation

Now she thinks she can not cope with the job she is having

Longstanding follow up she had with Ophthalmologist for her eyes

After many treatment and trial finally got bit better last year

1. Dr Skarbek's clinical notes show that she first consulted the applicant on 3 August 2018.
2. A referral to Dr Skarbek from general practitioner, Dr Victor Shawpan, sought an opinion for "worsening chronic anxiety". The applicant had been seeing a counsellor without much help. The applicant's current medications at the time were said to include Pristiq 100mg tablets once daily.
3. The applicant continued to consult Dr Skarbek for the remainder of 2018 and again in January, February, May, June, July and August 2019.
4. A handwritten consultation note on 29 June 2019 referred to workplace stressors, bullying, sidelining and unfair treatment and the possibility of the workers compensation claim. Work stresses were noted again on 6 August 2019. On the same date, the applicant was given a repeat prescription for Pristiq 100mg tablets to be taken once in the morning.
5. On 18 October 2019, Dr Skarbek was noted that the applicant was now employed by the respondent. A further consultation was held on 13 December 2019 and then again on 8 January 2020.
6. Dr Skarbek issued a State Insurance Regulatory Authority (SIRA) Certificate of capacity on 8 January 2020 for a work injury described as a major depressive illness with anxious mood due to workplace micromanagement, bullying and harassment. Pre-existing conditions of anxiety and depression were disclosed.
7. Dr Skarbek prepared a report for the insurer on 20 March 2020 in which she diagnosed the applicant with a major depressive disorder with anxious distress. Dr Skarbek stated:

"Ms Briggs commenced employment with Hammondcare as a client service advisor on October 21, 2019. Her mental state at that stage was stable there was no evidence of depressive symptoms. There was a history of excessive work scrutiny such as with minor grammatical errors in reports, repeated negative feedback over these minor details, micromanagement and unrealistic deadlines and workload.

Ms Briggs also feels that she was discriminated against due to her age and prior history of mental illness, particularly in conversations with the manager, Mr Cunningham, which was the final stressor to her mental state."

1. Dr Skarbek said there were no other significant new or current stressors in the applicant's life. Her workplace stressors, bullying and harassment were described as a "prominent cause" of her current presentation.
2. Dr Skarbek said that the applicant had a history of major depressive illness which was in "total remission" prior to the workplace injury.
3. On 5 May 2020, Dr Skarbek prepared a further report for the respondent's insurer responding to an earlier medico-legal report prepared by Dr Doron Samuell. Dr Skarbek said she had assessed the applicant prior to her employment with the respondent, during her employment and then after leaving her employment. Dr Skarbek gave the opinion that the applicant did not have a diagnosable depressive illness as defined by Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V) at the commencement of her employment. The applicant developed a relapse of depressive illness while still employed by the respondent as a result of workplace bullying and micromanagement

1. The applicant relies on a medico-legal report prepared by consultant psychiatrist, Dr Martin Allan, dated 26 May 2021.
2. Dr Allan took a history that the applicant was subjected to workplace bullying and micromanagement by Ms McCaskie. Despite meeting her targets, the applicant was told that her reports were late. On 20 December 2019, the applicant was provided with a letter and asked to attend a meeting. She was not offered the opportunity to bring a support person. During this meeting various performance issues were raised. The applicant was terminated from her position on 9 January 2020.
3. Dr Allan noted that the applicant had a pre-existing psychological illness dating back to 2014 around the time of a separation in a relationship. The applicant had maintained psychiatric support with Dr Skarbek, however, prior to the workplace injury, her major depressive disorder had been in a state of remission. The applicant was prescribed Pristiq 100mg daily.
4. Dr Allan referred to the various allegations in the applicant's statement evidence and said the applicant reaffirmed her difficulties and examination.
5. Dr Allan commented:

"Ms Briggs had experienced a prior major depressive disorder diagnosis. In the long term, she had been managed by sporadic contact with her psychiatrist, Dr Scarbeck, and in addition was prescribed Pristiq at 50 mg daily, after her workplace injury occurred this was increased to 100 mg daily. Ms Briggs describes coping well with her depression and essentially having a state of remission from her major depressive disorder. Although occasional life stressors may have occurred, I do not find in her history any evidence of any relapse of her condition over the years prior to her time working at HammondCare. The circumstances of HammondCare show her to be under repeated scrutiny to an excessive degree from Ms McCaskie."

1. Dr Allan referred to the applicant's allegations regarding her reports and excessive workload as well as the incidents with the Russian interpreting and use of eyedrops. Dr Allan gave the opinion:

"It is this collection of reasons which culminated in the disciplinary process of a four week period of observation being put in place over a period when staff would be absent and there would be less days of work due to the Christmas and New Year period, where her depressive disorder had clearly declined. I feel her major depressive disorder, which had been stable, was exacerbated in the weeks after Helen McCaskie taking over the management of Ms Briggs and prior to any management issues being raised against her on a formal basis on 20 December.

It is unclear as to why a four week period of observation for what could otherwise be regarded as a 'performance improvement' period was not allowed to see out its course. She was not given four weeks, she was given approximately two. This causes her continuing excessive distress and focuses her ruminative worry about how she was treated in the workplace. She remains frustrated and embittered by what had occurred there. Despite no longer being in that environment, she continues to suffer from the exacerbation of her pre-existing major depressive disorder."

1. Dr Allan said that the applicant's work situation was the main contributing factor to the exacerbation of her pre-existing major depressive disorder. The exacerbation predated the "disciplinary matters" of late December 2019.
2. Dr Allan made an assessment of 17% whole person impairment with no deduction for pre-existing condition or abnormality.
3. Dr Allan prepared a supplementary report on 31 May 2023 in which he was asked to respond to an opinion expressed by an independent medical expert qualified by the respondent, Dr Tanveer Ahmed. Dr Allan commented:

"Dr Ahmed did not within his report refer to the aspects of her history which I have referred to in mine. Dr Tanveer Ahmed does not clearly address the timeline of having recovered from her pre-existing depression and then returning to see Dr Skarbek during the period of her employment prior to any performance management issues arising. I respectfully disagree with Dr Ahmed's findings. I do not feel they take on board the totality of the difficulties experienced by Ms Briggs. Although Dr Ahmed regarded the condition as being 'predominantly caused by action taken by the employer with respect to transfer, demotion, promotion or performance appraisal' this appears to disregard any other issues such as those I have referred to above. These other issues have not clearly been referred to by Dr Ahmed. It is unclear to me if Dr Ahmed was aware of these issues occurring in her workplace."

1. With regard to the effect of the applicant's pre-existing condition, Dr Allan said:

"Her pre-existing condition did not impede her ability to work. She had a pre-existing major depressive disorder but appears to have made an excellent recovery from this and was not experiencing impairment as a result of that depression prior to the work related exacerbation of her major depressive disorder occurring."

"In my opinion the main contributing factor to the exacerbation of the pre-existing major depressive disorder was the circumstances of her workplace which I outlined in my initial report and those issues predated the performance management issues arising. Furthermore once matters were raised she was given minimal amount of time to address these and it is unclear why she was given such a brief time to address any issues."

1. Dr Allan prepared a further supplementary report on 21 June 2023 following a re-examination of the applicant. Dr Allan commented on the applicant's progress since his last review and gave an opinion as to the applicant's capacity to engage in work.

1. The respondent relies on a medico-legal report prepared by psychiatrist, Dr Tanveer Ahmed, dated 12 November 2021.
2. Dr Ahmed took a history of the applicant finding the mentor she was assigned quite problematic. The applicant was having technical issues with her computer and did not feel adequately supported. There were some performance issues but the applicant felt she was making rapid improvements. The applicant did not feel she was given adequate feedback regarding any criticism of her reports. Ms McCaskie had an interrogatory style when speaking to her. After working for the respondent for seven weeks, the applicant was let go. The applicant noted that she had gone through quite a few checks and balances prior to being employed and should have been given more of a go. The applicant said: "I want them to know what they did was wrong".
3. Dr Ahmed noted that the applicant reported loss of self-esteem, difficulties with sleep and appetite and had become quite withdrawn. The applicant returned to her old psychiatrist, Dr Skarbek and her antidepressant dose of Pristiq was increased to 100mg.
4. Dr Ahmed diagnosed a persistent depressive disorder which he considered a recurrence of a pre-existing illness. Dr Ahmed noted that the applicant was on the path to recovery and looking for work, although she still had some underlying symptoms.
5. Dr Ahmed agreed that the applicant had suffered an aggravation of a pre-existing depressive disorder and that employment was a key contributor to a psychological injury, stating:

"She thought she had shown clear improvement and was terminated, in her mind, unfairly. This was the key contributor to a worsening of her psychological distress."

1. Asked whether the injury was predominantly caused by action taken by the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or the provision of employment benefits, Dr Ahmed responded:

"Yes, the condition is predominantly caused by action taken by the employer with respect to transfer, demotion, promotion or performance appraisal. Ms Briggs was functioning psychologically reasonably well up until she was terminated. This was when she declined. Her antidepressant was increased soon afterwards through her psychiatrist, Dr Skarbek."

1. Dr Ahmed assessed the applicant as having 13% whole person impairment following a 10% deduction for pre-existing condition.

1. Psychiatrist, Dr Doran Samuell, had prepared and independent medicolegal report for the respondent on 15 April 2020. That report is relied on for the purposes of the history recorded only.
2. Dr Samuell recorded that prior to the commencement of employment with the respondent, the applicant had been on Newstart for a long time and had been employed as a case manager and client service advisor with Just Better Care.
3. The applicant reported that she had been seeing her psychiatrist, Dr Skarbek, on and off since 2014 in relation to interpersonal difficulties. The applicant recalled seeing Dr Skarbek about the workplace issues from around mid November 2019. The applicant reported that she had been taking Pristiq 100mg for some time prior to her employment with the respondent.
4. With regard to the injury, the applicant reported that she initially had a good leader. Shortly after a new manager, Ms McCaskie, started the applicant felt as though she was being excluded. Ms McCaskie was a lot younger than the other manager and would stand with her back to the applicant and talk to everyone else.
5. The applicant referred to an incident where she had been running late after a medical appointment. The applicant had told Ms McCaskie that she would stay back. At 5.35pm she was called on Zoom to see where she was.
6. The applicant reported that the incident involving the Russian client was brought up many times.
7. The applicant said she was accused of not doing as many cases as her peers, however, her cases were complex and time-consuming. One matter involving a suicidal client needed escalation.
8. The applicant referred to the incident where Ms Keegan had reviewed a report and advised the applicant to make some changes. It was later disputed that Ms Keegan had formally reviewed the report.
9. The applicant reported that during her time with the respondent she never got one compliment other than from an advisor in Melbourne.
10. The applicant reported that she was given a support plan in a meeting with Ms McCaskie and Human Resources. The applicant felt that she was being managed out of the business. They brought up the issue of the applicant's caseload and an inadequate competence on reports. The applicant said that she was subsequently dismissed after Christmas without warning.
11. The applicant said her computer was set up differently to others. The computer had complex software and it was hard to learn the system as efficiently as the others. Her manager went through her emails and in two of them there was no content. The manager found grammatical errors in a couple of reviewed reports. The applicant was subsequently given a letter telling her she was required to attend the meeting the following day and should bring a support person. The applicant went home feeling shocked and sick and never returned.
12. Asked when her emotional symptoms began, the applicant responded that they had gotten worse since leaving.

1. The respondent conceded that Dr Ahmed had found that the applicant had sustained an injury in the nature of an aggravation of a pre-existing psychological condition. The respondent relied upon a defence pursuant to s 11A(1) of the 1987 Act, alleging that the whole or predominant cause of the injury was reasonable action with respect to performance appraisal, discipline or dismissal. The respondent referred to the broad approach to the definition of discipline in Kushwaha v Queanbeyan City Council.[2]
2. The respondent observed that its business involved complex and sensitive work, providing services to vulnerable patients.
3. The applicant had been employed under a contract which provided for a probationary period. This was said to be a relevant consideration in considering the reasonableness of the respondent's actions.
4. The respondent submitted that the applicant had provided her perspective on the evaluation of the adequacy of her performance. Looked at objectively, there would appear to have been communication issues between the applicant and the respondent. The respondent submitted that the applicant's subjective perceptions were not, however, consistent with the objective character of the relevant events. It was apparent that the applicant had considerable difficulties managing time. A degree of rigour was required of the applicant's job. Action was taken by the respondent to bring the applicant's performance up to the required standard despite the subjective emotional response from the applicant.
5. The respondent's records revealed issues with the applicant arriving late without communication or apology, there were gaps in her ability and she displayed difficulty accepting feedback. There was an apparent unwillingness to repeat what was covered in the orientation or to practice certain tasks. The applicant was observed to have inappropriately used eyedrops during a meeting with a client.
6. The respondent submitted that its actions were not objectively characterised as nitpicking or overly pedantic. Rather they reflected the problems with the applicant's performance. These were matters worthy of feedback and guidance. The respondent's approach was legitimate.
7. The respondent's evidence established that allowances were made to accommodate the applicant and she was given a lighter caseload. There continued to be concerns regarding time management and the applicant indicating that she had finished a task when she had not. While the applicant had interpreted that she was being accused of lying, Ms McCaskie described the incident involving a report having been reviewed by Ms Keegan as a miscommunication. Viewed objectively, the respondent had provided correction and advice as to what was expected.
8. The applicant was observed to have spoken negatively about her mentor. It was reasonable to provide feedback to the applicant with regard to her language and workplace interactions. The applicant had been advised to watch the tone in her voice. While these were mild criticisms, the applicant took them to heart. The evidence from the respondent's witnesses was that the applicant was defensive when provided with feedback about her professional conduct.
9. The respondent's evidence clearly identified the supports that had been provided to the applicant to assist her with her performance. No improvement had been noted by December 2019.
10. The email correspondence attached to the Reply was expressed in the most polite of terms. The approach taken by the respondent was not objectively heavy-handed but more appropriately described as invitations expressed in polite terms.
11. The respondent submitted that what was "reasonable" could vary from case to case according to the circumstances. In a workplace environment involving considerable risk, the worker's performance might need to be more carefully monitored to ensure that errors did not occur. That was the framework within which the respondent's actions ought to be considered.
12. The respondent submitted that the letter directing the applicant to attend a support plan meeting noted that the applicant was on probation. The purpose of the meeting was clearly set out and the attendees named. The topics for discussion were clearly set out and the applicant was provided advice with regard to the Employee Assistance Program. The support plan discussion was recorded. The respondent's records were impeccable and did not disclose anything unreasonable.
13. During the support plan meeting, the applicant was observed to be curt and to have failed to acknowledge the gaps in her performance.
14. In the subsequent support plan meetings, it was recorded that the applicant continued to fail to meet deadlines.
15. Eventually, the applicant was provided with a letter to attend a meeting to which she was invited to bring a support person and again advised of the Employee Assistance Program. The applicant never attended that meeting.
16. Although the applicant believed that she was "under a microscope", the respondent's witness evidence set out a different perspective on the issues with the applicant's performance and the training and mentoring provided to her. The respondent's witnesses described trying to listen to and reassure the applicant. The applicant attended regular catch ups and her colleagues stayed back to assist her. Despite the support provided to the applicant, there was no improvement in her performance. The applicant accused others of doing things incorrectly. There was a lack of recognition from the applicant about the issues identified with her performance in the feedback given to her.
17. At the support plan meeting, the applicant was given four weeks to improve her performance. At every meeting thereafter there were gaps in her performance. It was determined that the applicant had not met standards required to pass probation. The applicant continued to make errors including sending two blank emails. The decision to terminate the applicant's employment during the probation was reasonable.
18. The respondent submitted that Dr Skarbek was very supportive of the applicant's subjective responses to her experiences in the workplace. Dr Ahmed did not, however, consider that the applicant's version of events was objectively supported.

1. The applicant submitted that the respondent had failed to adequately discharge its onus under s 11A(1) of the 1987 Act.
2. The index to the Reply indicated that the Support Timeline or chronology was dated 15 December 2020, which suggested it was prepared 12 months after the events in question. It was not apparent when or for what purpose the document came into existence. The author of the document was not identified. The document was not mentioned in the factual investigation report obtained by the respondent or a list of documents gathered by the investigator. The document appeared to have been prepared after the fact. No source documents had been provided to verify its contents. The document was one on which the Commission would place little, if any, weight. The applicant submitted that the fact that someone had gone out of their way to create the document 12 months later spoke directly to the attitude taken by the respondent to the applicant.
3. The applicant submitted that although Dr Ahmed was aware of Dr Skarbek's treatment of the applicant, he did not refer to her report to the insurer. It was not just the termination of the applicant's employment but events leading up to the termination which were causative of the applicant's psychological injury. Ms McCaskie's statement suggested that a decision had already been made to terminate the applicant's employment well before she was invited to the meeting on 7 January 2020.
4. Dr Allan took a history that the applicant had returned to see Dr Skarbek well before issues with her performance were raised. This circumstance was also not addressed by Dr Ahmed. This confirmed for Dr Allan that the applicant's psychological condition was deteriorating well prior to issues with her performance having been raised.
5. The applicant drew attention to the differences in her and Ms Keegan's statement evidence with regard to the incident involving the Russian-speaking client. The applicant submitted that the most reasonable inference was that Ms Keegan later realised there was a privacy breach. Ms Keegan failed to take responsibility for her own mistake and sought to place blame on the applicant. This event was said to be significant in the timeline of causative events and was referred to in all of the medical reports and statements. The Commission would not be satisfied that the respondent's actions with regard to this particular event were reasonable.
6. The applicant referred to the letter dated 17 December 2019 inviting her to a support plan meeting. The applicant was not offered the opportunity to have a support person present. The applicant submitted that she was under a reasonable apprehension that she would be given four weeks to address the issues raised by the support plan. Those four weeks occurred over the Christmas period. The applicant had been asked to work with Ms Maddicks but in fact several different people were giving her different feedback. It appeared from the evidence that from the very first day, the respondent was out to reprimand the applicant. By 6 January 2020, a decision had already been made to terminate her employment.
7. The applicant's evidence was that her reports were nitpicked. The applicant referred to the incident in which she was noted to have used eyedrops during a meeting. Dr Allan observed that the applicant had done this in an unobtrusive and quick way due to a medical condition. This was not a consideration taken into account by the respondent's witnesses. Reprimanding the applicant in those circumstances was not reasonable.
8. Ms Keegan appeared to concede that her mentoring of the applicant may have been 'overwhelming'. This was a concession that she was over managing the applicant.
9. The applicant submitted that Commission would not be satisfied that the relevant actions were reasonable.

1. The respondent submitted that it was hard to know what Ms Keegan meant when she said she was "overwhelming" the applicant. Ms Keegan held the same rank as the applicant and was clearly doing her best to be supportive and as positive as she could.
2. The applicant was required to be performance managed even from the commencement of the orientation. The applicant was observed to have arrived late to orientation. Performance issues were raised from the very first day and continued during the whole period of the applicant's employment.

1. Section 9 of the 1987 Act provides that a worker who has received an "injury" shall receive compensation from the worker's employer in accordance with the Act. The term "injury" is relevantly defined in s 4 as it applies to this case as:

(a) means personal injury arising out of or in the course of employment,

(b) includes a disease injury, which means:

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and

(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers' Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined."

1. "Psychological injury" is further defined in s 11A(3) of the 1987 Act:

"(3) A psychological injury is an injury (as defined in s 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system."

1. A psychological injury which meets the statutory definitions will not be compensable if a defence pursuant to s 11(A)(1) of the 1987 Act is made out:

"(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."

1. Sub-section 11(A)(1) is a disentitling provision and an employer who wishes to rely upon it carries the onus of establishing that defence.[3]
2. In Northern NSW Local Health Network v Heggie[4], Sackville AJA considered a number of authorities dealing with s 11A(1) and distilled the following propositions:

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

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

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

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

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

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

(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."

1. In Manly Pacific International Hotel v Doyle,[5] Fitzgerald JA (Mason P agreeing) said that:

"... the whole or predominant cause of [the worker's] psychological injury within the meaning of subs 11A(1) is a question of fact and degree, which involves consideration of all the factors which produced [the worker's] condition."

1. There is no dispute between the parties in this case that the applicant sustained a psychological injury in the course of her employment with the respondent in the nature of an aggravation of a pre-existing condition.
2. The applicant disclosed a pre-existing psychological condition in her statement evidence. The applicant said that she had been taking an antidepressant medication, Pristiq, and seeing a psychiatrist, Dr Skarbek "on and off" over a few years prior to the commencement of her employment with the respondent.
3. Dr Skarbek's clinical records show that she first consulted the applicant in 2018 for worsening, chronic anxiety. The applicant was noted at that time to be taking Pristiq 100mg once daily. The applicant continued to consult Dr Skarbek on a number of occasions during the second half of 2018 and the first half of 2019.
4. Dr Skarbek's clinical notes suggest that the applicant had experienced difficulties in another workplace shortly prior to the commencement of her employment with the respondent. Although Dr Skarbek indicated in her report for the insurer on 20 March 2020 that the applicant's previous depressive illness was in "total remission" prior to the current workplace injury, this is somewhat difficult to reconcile with the clinical notes in evidence.
5. The evidence before the Commission indicates that from an early point in her employment with the respondent, the applicant exhibited outward signs of psychological difficulties. As early as the orientation, the applicant was noted in the respondent's evidence to be very anxious and "shaky" in conversation. Ms Keegan said she found the applicant to be "up and down" and that the applicant appeared stressed when she came in each day. A similar observation was made by Mr Cunningham.
6. The treating evidence does, however, record a clear deterioration in the applicant's condition and new depressive symptoms by 7 January 2020. The general practitioner's records on that date noted that the applicant was very upset and emotional and cried throughout the consultation. The applicant reported that she had cried the whole previous night. The applicant referred to being in trouble when she used her daughter in law to interpret for a Russian speaking client. The applicant mentioned that her mentor had told her that she had breached confidentiality and a complaint was made. It was noted that the applicant was given a very hard time in other areas of her job and had been bullied very badly.
7. The applicant also returned to see Dr Skarbek on 8 January 2020. Dr Skarbek gave her insight as to events contributing to the applicant's deterioration in the report dated 20 March 2020. Dr Skarbek referred to excessive work scrutiny in relation to minor grammatical errors in reports, repeated negative feedback over minor details, micromanagement and unrealistic deadlines and workload. The applicant had also expressed a belief that she was discriminated against due to her age and prior history of mental illness, particularly in conversation with Mr Cunningham.
8. The applicant's medico-legal expert, Dr Allan, also considered that the applicant's injury was due to a collection of reasons including micromanagement, excessive workload, the incidents involving the Russian interpreting and use of eyedrops, culminating in the support plan process and dismissal. Dr Allan expressed the view that the applicant's major depressive disorder was exacerbated in the weeks after Helen McCaskie took over as the applicant's team leader and prior to the performance issues being raised on a formal basis on 20 December 2019.
9. Dr Ahmed, on the other hand, considered that the predominant cause of the deterioration in the applicant's condition was the termination of her employment. Dr Ahmed described this as the key contributor to a worsening of the applicant's psychological distress, commenting that the applicant had been functioning psychologically reasonably well up until that point.
10. After reviewing the evidence in its totality, I agree that the aggravation of the applicant's psychological condition was multifactorial. I accept that the applicant's psychological condition declined due to a number of incidents involving what she perceived as unfair criticism, micromanagement, excessive workload, bullying or discrimination. It should be noted, however, that in order for a psychological injury to satisfy the requirements of s 4 of the 1987 Act it is not necessary for the applicant's perception of events to be objectively reasonable or accurate as long as there were real events which were perceived as hostile and which contributed to the deterioration of her psychological condition.
11. For the purposes of s 11A(1), it is necessary to consider whether the whole or predominant cause of the injury was reasonable management action of the relevant kind.
12. I am satisfied that, temporally, the first reports of an injury in the treating evidence from the applicant's general practitioner and Dr Skarbek coincided with the applicant being invited to a meeting on 7 January 2020 at which her probation was to be discussed. It was from this point that the applicant became incapacitated as a result of the injury. It is clear that this was a significant event.
13. I am also satisfied that the formal implementation of the support plan was also a significant event. The respondent's witness evidence described the applicant as being in obvious psychological distress during the meeting on 20 December 2020, so much so that Mr Lisney thought she might need to leave work early. The applicant was also observed by Mr Cunningham to be distressed in the days that followed.
14. As noted above, Dr Allan considered that a deterioration in the applicant's psychological condition had already occurred well prior to these events.
15. I accept that the applicant did see Dr Skarbek on 13 December 2019, however, the notes on that date do not reveal any material deterioration of the applicant's condition. It was noted that the applicant was at a new job and the orientation went well. There was, however, reference to the Russian interpreting incident.
16. Dr Skarbek had also seen the applicant on 18 October 2019, however, those notes only refer to the fact that the applicant had started a new job with the respondent.
17. The fact that the applicant consulted Dr Skarbek on these earlier dates does not of itself satisfy me that there was any deterioration in the applicant's condition at that stage given the applicant had already consulted Dr Skarbek on seven other occasions that year.
18. There is no other contemporaneous treating evidence documenting an aggravation, exacerbation or deterioration of the applicant's condition prior to 7 January 2019.
19. It is also difficult to discern in the respondent's witness evidence any aggravation, exacerbation or deterioration of the applicant's condition at an earlier stage. Although outward signs of psychological symptoms were observed by the respondent's witnesses during the course of the applicant's employment, these were noted to be present from the start.
20. Dr Allan's view as to the timing of the aggravation of the applicant's condition was heavily influenced by the history taken by him of the applicant's pre-existing condition being in remission prior to the commencement of her employment with the respondent. Dr Allan said he could not find in the applicant's history evidence of any relapse of her condition over the years prior to her time working at HammondCare. Dr Allan appears to have been under the impression that the applicant first returned to see Dr Skarbek sometime after Ms McCaskie began as the applicant's team leader.
21. I am not satisfied that Dr Allan's history is consistent with the referral of the applicant to Dr Skarbek in 2018, her continuing prescription of Pristiq at 100mg, the regular consultations with Dr Skarbek in the year prior to the commencement of the applicant's employment with the respondent, the reference in Dr Skarbek's notes to significant stressors immediately prior to the commencement of employment with the respondent, or the evidence of the respondent's witnesses that the applicant was exhibiting outward signs of psychological difficulty from the commencement of her employment.
22. Dr Ahmed's opinion is, in my view, more consistent with the treating evidence. I do, however, share the applicant's concern that Dr Ahmed has not demonstrated a clear weighing of the other contributing factors in coming to his conclusion. All of the medical evidence points to a contribution from a range of events throughout the course of the applicant's employment.
23. The respondent's submissions suggested that the employer's management of the applicant's performance throughout the period of her employment fell within the ambit of "discipline" or "performance appraisal", particularly having regard to the fact that the applicant remained in the probationary period of her contract.
24. In Kushwaha v Queanbeyan City Council, to which the respondent referred, Neilson J held that the employer's process of drawing the worker's unsatisfactory work performance to her attention, asking her to improve her performance and suggesting ways of doing so and of offering assistance in training was "discipline":

"It can be seen, therefore, that the primary meaning of 'discipline' is learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of punishment, chastisement is secondary to the primary meaning although this word is often used in this sense in popular speech. It is this narrow meaning which weighed on my mind in Bottles' case. However, the word used in an Act of Parliament must be given its full meaning, unless the context otherwise requires. Such a context does not appear to me to be called for in the interpretation of s 11A(1).

In Bottles' case I pointed out at [51] that neither Counsel had drawn my attention to any particular industrial statute or industrial award that referred to 'performance appraisal'. In evidence in the current matter is an exhibit from the Local Government (State) Award 1995. Clause 27 is headed 'Disciplinary Procedures'. Subclause (i) provides:

Where an employee's work performance or conduct is considered to be unsatisfactory, the employee shall be informed in the first instance of the nature of the unsatisfactory performance or conduct and of the required standard to be achieved, by the employee's immediate supervisor or other appropriate officer or nominee of council.

Unsatisfactory work performance or conduct shall include, but not be limited to, neglect of duties, breach of discipline, absenteeism and non-compliance with safety standards. A written record shall be kept on the appropriate file of such initial warning. The employee shall be entitled to sight and sign such written record and add any notations regarding the contents of such record.

It can be seen that unsatisfactory work performance, including neglect of duty, falls under 'discipline' in the Award governing the applicant's employment.

I have no hesitation in finding that the process adopted by the respondent, of drawing the applicant's unsatisfactory work performance to her attention, in asking her to improve that performance, of suggesting ways that could achieve that end, of offering assistance and or training was 'discipline' using the wider sense of that word. Accordingly, the respondent has made out a defence under s 11A."

1. This meaning of "discipline" was approved by Candy ADP in ISS Property Services Pty Ltd v Milovanovic.[6]. In that case, reprimands about standard of work were held to come within the primary meaning of "discipline".
2. More recently, however, concerns have been raised as to the correctness of this approach. In Webb v State of New South Wales,[7] Wood DP commented on the application of Kushwaha in light of more recent authority on the correct approach to statutory interpretation. In particular, Wood DP referred to the comments of Snell ADP in Mascaro v Inner West Council:[8]

"It is unnecessary, for current purposes, to deal with whether Kushwaha contains too broad a definition of 'discipline'. The approach in Kushwaha essentially relied on a consideration of dictionary definitions of 'discipline'. Some more recent authorities have cast doubt on this approach. The parties' submissions do not deal with this broader issue in any detail, but direct themselves to whether the factual situation at hand can be appropriately characterised as 'discipline'. Applying the clear meaning of the text, in my view the Arbitrator did not err, in his conclusion at [95]-[96] of his reasons, that the Council's relevant actions were 'with respect to discipline'. This outcome does not depend on the term 'discipline' being given a broad meaning consistent with the decision in Kushwaha."

1. Deputy President Wood noted that in Soutar v The Commissioner of Police,[9] Nielsen J acknowledged that in his decision in Kushwaha, he may have taken too broad an approach. His Honour observed:

"In my view, the facts of this matter are wholly analogous to those in Kushwaha. Accepting, as I did in Kushwaha, that offering support and training to a worker in order to have the worker improve his or her work performance or to do his or her job properly was discipline, then in the current matter there was invoked a disciplinary process. My only concern is that perhaps I approached the matter too broadly in Kushwaha."

1. Reference was also made to George Weston Foods Ltd v Bogdanoski[10] where Roche DP also expressed doubt about the correctness of Kushwaha, but noted:

"While there are general allegations that Ms Bogdanoski did not accept feedback on her work or actions, that falls well short of establishing that the feedback was discipline under s 11A, or that the feedback was the whole or predominant cause of the psychological injury. Merely telling a worker how to carry out his or her work, that is, giving lawful instructions, is not performance appraisal (Bottle v Wieland Consumables Pty Ltd [1999] NSWCC 32; 19 NSWCCR 135 at [33]). Nor is it discipline."

1. In Bottle v Wieland Consumables Pty Ltd, Neilson J referred to the decision of Geraghty J in Irwin v Director General of School Education (unreported, 18 June 1998, No 14068 of 1997) where the meaning of the expression "performance appraisal" was considered:

"It is important to consider the meaning of the term 'performance appraisal'. The respondent submitted that it should receive its ordinary street meaning, that it is not a term of art. But it seems to me to be a rather precious and precise expression. It is framed within the context of other processes, of crises[sic] points in a worker's life. It is placed in the context of processes like 'transfer', 'demotion', 'promotion', 'retrenchment or dismissal' of workers. It must be seen in this context. Furthermore, performance appraisal in any work situation is a process, an established process involving various steps. Perhaps it will involve the completion of questionnaires and forms. It requires discussion between various parties about performance, written appraisal, sometime even self-appraisal, maybe even a score. It is a process in which parties are engaged and knowingly engaged.

Performance appraisal is not a vague, continuing, informal process which begins on the first day of employment although, in a sense, we can say that we are continually under scrutiny and being appraised in somewhat the same way as students in a classroom are being scrutinised on a day to day basis. But 'performance appraisal' is somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited, discrete process, with a recognised procedure through which the parties move in order to establish an employee's efficiency and performance."

1. Applying the authority in Irwin, Nielsen J found:

"What was happening in this case was that the applicant was making mistakes in the doing of the work. None of us is perfect. All persons make mistakes from time to time in the doing of their work. It is not uncommon in any industrial situation. Mistakes have to be corrected and, furthermore, often need to be drawn to a person's attention before they can be corrected. If this persists it is not uncommon for any employer to give directions to a worker to improve his or her performance. It is submitted by the respondent that this amounts to 'performance appraisal'.

Uninstructed by authority I would not be able to accede to that submission. The first thing to say about the words 'performance appraisal' is that it is unfortunate that Parliament should use a noun to qualify a noun. I assume Parliament intends to mean by 'performance appraisal' - 'appraisal of performance'. According to the Oxford English Dictionary, 2nd edition, `appraisal' has two meanings. `Appraisal' is the art of appraising something - literally, it means `the setting of a price'; figuratively, it means `the estimating of the worth' of a thing. The appraisal of performance must be estimating the worth or putting a value upon the work being performed by an employee. It appears to me to refer to part of the process of fixing an employee's salary or remuneration."

1. Having regard to these authorities, I am not satisfied that it is appropriate to characterise all of the relevant events in this case as coming within the ambit of discipline or performance appraisal. In particular, I am not satisfied that all of the day-to-day instructions or feedback given to the applicant prior to the implementation of the formal support plan extended beyond the scope of ordinary directions with regard to the performance of the applicant's work. I am also not satisfied that the mere fact that the applicant remained in her probationary period is sufficient to bring each of those events within the meaning of discipline or performance appraisal as those terms are used in s 11A(1) of the 1987 Act.
2. I do accept that some of the events are of a different character. In particular, I am satisfied that the respondent's actions in response to the use of the applicant's daughter-in-law as a Russian interpreter may be characterised as action with respect to discipline. Following this event, Ms Keegan advised the applicant that her actions involved a breach of privacy. It is apparent that Ms Keegan reported the incident to Mr Cunningham and the matter was logged in the risk management system. Inappropriate or unprofessional behaviour with respect to privacy was also identified in the letter dated 17 December 2019 directing the applicant to attend a meeting with Ms McCaskie and Mr Lisney.
3. I also accept that the implementation of the formal support plan and the regular reviews or meetings between the applicant and Ms McCaskie and Ms Mazzone under the support plan constituted action with respect to performance appraisal.
4. It is uncontroversial that the letter inviting the applicant to a meeting on 7 January 2020 and the termination of the applicant's employment constituted action taken or proposed to be taken with respect to dismissal.
5. I am also satisfied that these particular events, in combination, while not the whole cause of the applicant's injury, were the predominant cause of the injury.
6. The Russian interpreting incident featured prominently in the history provided by the applicant to her general practitioner, the clinical notes of Dr Skarbek, the applicant's own evidence and the histories provided to each of the medicolegal experts.
7. The respondent's evidence pertaining to the meeting on 20 December 2019 and the applicant's interactions in the workplace following that event demonstrates a clear deterioration or intensification of the psychological symptoms that had previously been observed by the applicant's colleagues.
8. I am satisfied that the letter inviting the applicant to a meeting on 7 January 2020 triggered a decompensation and incapacity for work which prompted the applicant to seek medical attention from her general practitioner and consult Dr Skarbek.
9. For these reasons, I find that the predominant cause of the applicant's injury was action taken or proposed to be taken by or on behalf of the respondent with respect to discipline, performance appraisal and/or dismissal. The question that remains is whether these actions were 'reasonable'.
10. The test of reasonableness in s 11A(1) is an objective one.[11] In Commissioner of Police v Minahan[12] Foster AJA (Sheller and Santow JJA agreeing) cited with approval a passage from an unreported decision of Geraghty J in Irwin v Director-General of School Education:[13]

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

1. In the decision of Van Vliet v Landscape Enterprises Pty Ltd,[14] Phillips P observed:

"The concept of reasonableness in s 11A(1) does not, with respect, require a counsel of perfection. It requires, consistent with the authorities (Heggie, Irwin), that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not.

The Member found that the termination was imperfect, but in the circumstances reasonable.[132] In terms of the Member's fact finding, there is no error in this approach. The Member correctly considered all of the circumstances of the case, as the authorities require, in reaching a view about the reasonableness of the process adopted by the respondent. The member quite correctly noted the flexibility of the content of the obligation pertaining to procedural fairness,[133] which stood in contradistinction to the inflexible approach urged upon the member by the appellant. In so doing the Member was involved in no error."

1. The respondent's actions with respect to the Russian interpreting incident were criticised by the applicant as unreasonable. The applicant submitted that the evidence suggested that Ms Keegan only later realised there was a privacy breach after the client meeting concluded. Ms Keegan failed to take responsibility for her own mistake in failing to stop the phone call and put blame on the applicant. In her statement, the applicant said that the phone call lasted approximately 10 to 15 minutes and she could not understand why Ms Keegan did not stop the call or tell her to hang up at the time.
2. Ms Keegan's evidence puts the incident in the context of the applicant having told her earlier that day that there was a family tragedy and that she was keeping her eye on her phone as a result. When the applicant mentioned something about calling her daughter in law on the phone, Ms Keegan thought this was the call the applicant had been waiting for and so told her to go ahead.
3. While it is fair to say that Ms Keegan could have asked the applicant to end the call earlier, the evidence does establish that Ms Keegan was employed at the same level as the applicant. Accepting that Ms Keegan only later realised that there had been a breach of privacy, I find that it was objectively reasonable for her to raise this with the applicant in her role as mentor and report it having regard to the respondent's statutory obligations. I am also satisfied that it was reasonable for the matter to be logged in the risk management system as described in Mr Cunningham's evidence.
4. The evidence establishes that the applicant was counselled with regard to the breach of privacy. The breach was also identified formally as a matter in respect of which the applicant required support, together with other issues, under the support plan developed in December 2019. I am not satisfied that the respondent's approach to the issue was heavy handed or excessive. While it was unfortunate that the incident was allowed to occur, I am satisfied that the respondent's actions with respect to the incident were objectively reasonable.
5. The applicant's criticisms of the decision to place her on a formal support plan in December 2019 appear to centre on her view that she had been performing adequately in all the circumstances and that the feedback and criticisms she had received with regard to her work were unfair, excessive and constituted micromanagement. The applicant also referred to the absence of any indication in the letter dated 17 December 2019 that she could bring a support person to the meeting.
6. I accept that it may have been preferable for the respondent to advise the applicant that she could bring a support person to the meeting, particularly having regard to the fact that psychological symptoms had been exhibited by the applicant in the workplace previously. I am not satisfied, however, that the failure to do so was unreasonable. The applicant was advised of the availability of the Employee Assistance Program in recognition of the fact that the meeting could be stressful or upsetting. The applicant was advised who would be in attendance at the meeting. The applicant was given advance notice of the issues to be discussed. I am also satisfied on the evidence that the applicant was well aware of the respondent's concerns with regard to her performance given that she had received regular feedback and instruction in that regard leading up to the support plan.
7. I have taken into account the applicant's submission that the chronology or 'Support Timeline' attached to the Reply should be given little weight given that its author, the date on which it was prepared and the purpose for which it was prepared were not apparent. I accept that the source material including the file notes referenced in the document are not before the Commission. The contents of the document are, however, entirely consistent with the respondent's witness evidence, the email correspondence, the records relating to the support plan and indeed the applicant's own evidence.
8. The applicant has characterised the concerns raised in relation to her performance as nitpicking, micromanagement, harassment or bullying. The respondent's evidence does, however, establish that as an agency working under a government contract, certain KPIs had to be met to ensure an appropriate standard of service was provided to the respondent's vulnerable clients.
9. While minor errors with regard to spelling and grammar and the sending of blank emails were noted, these were not the only or the primary concerns raised with the applicant. The primary issue appeared to be the applicant's ongoing inability to complete her reports, notes and emails in timely fashion and in accordance with guidelines. The manner in which the applicant communicated with her colleagues and clients was also a matter raised as a concern.
10. The respondent's evidence indicates that the applicant was well trained and supported from the commencement of her employment. The applicant attended an orientation program and was supported with a booklet, trained mentor, regular meetings with her team leader and a means of seeking informal support and feedback from her colleagues or advisors as required.
11. While I am satisfied that the volume and frequency of the performance feedback was considerable, I am not satisfied that it was unwarranted or unreasonable. A large number of performance issues are documented in the respondent's evidence.
12. The emails, file notes and discussion records together with the respondent's statement evidence suggests that feedback was provided to the applicant in a supportive way. The applicant was given direction as to what was required to demonstrate improvement.
13. The applicant expressed concern that different people had given her different feedback with regard to her reports. While I accept that this may have caused the applicant a degree of confusion and was perhaps undesirable, I am not satisfied that this was "unreasonable".
14. The applicant also indicated that she felt unsupported following the implementation of the support plan due to Ms Maddicks taking unexpected leave. It is clear, however, from the file notes and discussion records that the applicant continued to be supported by Ms Mazzone over the Christmas period.
15. The applicant raised other concerns including her computer being set up differently to others, having a complex caseload and being asked to do other tasks such as sitting on the phone lines which prevented her from completing her reports on time. Having considered the totality of the evidence, however, I am not satisfied that these challenges rendered the respondent's actions with regard to the support plan unreasonable. The respondent's evidence indicated that many of its cases involved complexities having regard to the very nature of the respondent's work. The respondent's evidence also indicated that the applicant was carrying a considerably lighter workload than her fellow consultants and one which took account of her status as a new starter.
16. While I have taken into account the applicant's rights and concerns, I am satisfied that the decision to implement a support plan and the manner in which it was implemented were objectively reasonable.
17. I am also satisfied that the respondent's actions with respect to the proposed dismissal were reasonable. Although it may have been preferable for the full four week support plan to be implemented, the discussion records demonstrate that the applicant failed to meet expectations at each of the meetings held under the plan. It is relevant that the applicant remained in her probationary period. The applicant's employment contract allowed for her employment to be terminated at short notice during this period. The respondent clearly had reasonable concerns with regard to the applicant's ability to fulfil the requirements of her role for a long time prior to the implementation of the support plan. I am satisfied that the respondent made reasonable efforts to support the applicant to meet expectations both before and during the period of the support plan. The respondent's evidence suggested that the applicant's difficulties were negatively affecting others in her team, and placing the organisation at risk of failing to meet its own performance obligations.
18. The letter inviting the applicant to a meeting to discuss her probationary period on 7 January 2020 advised the applicant that she was entitled to bring a support person to the meeting. The applicant was provided with the details of the Employee Assistance Program. The meeting was postponed at the applicant's request after she called in sick.
19. The applicant consulted her general practitioner and Dr Skarbek and obtained a SIRA Certificate of Capacity in respect of the injury before the termination was effected.
20. For the reasons given above, I am satisfied that the respondent has discharged its onus under s 11A(1) of the 1987 Act. I accept that the applicant's injury was predominantly caused by reasonable action taken or proposed to be taken by or on behalf of her employer with respect to performance appraisal, discipline and/or dismissal. The injury is not compensable. As a result, there will be an award for the respondent.

[1] In the document itself there is a reference to orientation having commenced on 20 May 2019, although this appears to be an error.

[2] [2002] NSWCC 25; (2002) 23 NSWCCR 339 at [151].

[3] Pirie v Franklins Ltd [2001] NSWCC 167; Department of Education and Training v Sinclair [2005] NSWCA 465.

[4] [2013] NSWCA 255.

[5] [1999] NSWCA 465.

[7] [2019] NSWWCCPD 50.

[8] [2018] NSWWCCPD 29.

[9] [2006] NSWDC 95.

[10] [2011] NSWWCCPD 62.

[11] Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.

[12] [2003] NSWCA 239.

[14] [2022] NSWPICPD 49.