3 July 2024 based upon her psychological condition. The request was not opposed, and the amendment was consistent with the material relied upon by the applicant in the proceedings. Leave was granted accordingly.

1. The primary issue in dispute is whether the respondent has established a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act).

1. The following documents were in evidence before the Commission, without objection, and considered in making this determination:

(a) ARD and attached documents;

(b) Reply with attachments from the respondent (Reply);

(c) Application to Lodge Additional Documents (ALAD) lodged by the respondent on

28 February 2025;

(d) Wages Schedule lodged by the respondent on 28 February 2025;

(e) ALAD lodged by the applicant applicant on 3 March 2025, and

(f) Wages Schedule lodged by the applicant on 3 March 2025.

1. The was no objection to any of the documents lodged by the parties and they were all received into evidence.
2. There was no application to call oral evidence or cross-examine any witness at the hearing.

1. It is undisputed the applicant has a psychological injury for the purposes of s 4 of the Workers Compensation Act 1987 (1987 Act) and that it arose from acts by the respondent in the course of employment.
2. Section 11A(1) of the 1987 Act provides:

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

1. An employer that seeks to make out a defence pursuant to s 11A carries the onus of establishing that defence: Pirie v Franklins Limited [2001] NSWCC 167. "Wholly" and "predominantly" are separate concepts and a finding of one or the other must be considered. That has been determined to mean "mainly or principally caused": Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130. The test of causation to be applied is that of a common-sense evaluation of the causal chain, as referred to by Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.
2. There are two requirements in s 11A and both need to be satisfied for the defence to succeed. That is, the conduct relied on by the employer must be the whole or predominant cause of the applicant's injury and that conduct must be reasonable.
3. According to Geraghty J in Irwin v Director General of Education NSWCC 14068/97,

"... The test of 'reasonableness' is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness."

1. In Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss CCJ said:

"In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was affected."

1. In Jackson v Work Directions Australia Pty Ltd [1998] NSWCC 45, Armitage J said that "only if the employer's action in all the circumstances was fair could it be said to be reasonable". Reasonableness is also to be assessed with regard to fairness in the circumstances of a case, including anything that occurred before or after particular action: Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454.
2. The respondent contends that matters related to discipline and transfer were the cause of the applicant's psychological condition and those matters were reasonable action for the purposes of s 11A of the 1987 Act.
3. A meeting of senior staff at ATSIHWS, including its executive director Mr Peter Shine, took place on 18 March 2024 when the participants attended by MS Teams. The meeting was electronically recorded. During the meeting, Mr Shine referred to the applicant in a way that she contends was derogatory. The applicant became aware of the comment about her by Mr Shine at the meeting. On 19 March 2024, the applicant viewed the recording of the meeting. She claims the reference to her by Mr Shine is the primary cause of her psychological condition and that other related events at work, described as "bullying and harassment", also contributed.
4. On 4 April 2024 the applicant was offered, and accepted, the role of acting Integrated Team Care (ITC) Manager while a recruitment was underway to fill the permanent position. She subsequently applied for the substantive role on 19 April 2024 and was interviewed by a panel, that included Mr Shine, on 6 May 2024. It is the applicant's evidence that at the conclusion of the job interview Mr Shine said that she was the "preferred candidate" for the role. The applicant continued to act in the role after the job interview.
5. These events all occurred in circumstances where the applicant was the subject of a misconduct investigation for which she received formal notice on 5 March 2024. It is that investigation, and the consequences of it, that the respondent relies upon as the real cause of the applicant's psychological condition.

1. The applicant qualified Professor David Mitchell, consultant psychiatrist, to conduct an examination and provide a report, which he did on 18 September 2024. He considered the applicant was:[1]

"... suffering from Depression and in additional pre-existing diagnosis of Post Traumatic Stress disorder (PTSD). She meets the DSM-V criteria for both. The Depression, which appears to be work related is confirmed..."

1. Professor Mitchell considered that the applicant's knowledge of the comments made by Mr Shine on 18 March 2024 was relevant to her condition. In response to the query "Do you consider the Teams Meeting incident to be a substantial contributing factor to the onset and/or development of [the applicant's] psychological condition?", Professor Mitchell responded "Yes".[2] He provided the same response to his "opinion on the effect Mr Shine's behaviour had on [the applicant's] mental health", specifically whether he considered "this to be a substantial contributing factor to the onset and/or development of [the applicant's] psychological condition". His overall summary was that:[3]

"It appears that as a consequence of the workplace incident Ms Dotti has spiralled into a deep depression that is complicated by a sense that the work issues have not resolved and that process has not been just and equitable. Another important aspect to this case is the cultural lens, Ms Dotti is an Aboriginal women and should be afforded cultural safety. The RANZCP describes cultural safety in its position statement #105 as the need to consider that 'systemic inequities are present in Australia and New Zealand due to colonisation, socioeconomic and political realities have contributed to discrimination and racism'. This applies to the health system but more broadly Ms Dotti's workplace. In short, the extent of the shame and humiliation that Ms Dotti suffered is likely to both precipitate and aggravate her depression. Ms Dotti does not seem to have been afforded cultural support and the initial investigation into misconduct may not accounted for cultural circumstances."

1. It seems however that Professor Mitchell was given an inaccurate description of an important event. The applicant apparently told Professor Mitchell that she had formally applied for the position as ITC Manager and "was advised that she was successful" but:[4]

"Subsequently she was advised by email she was not successful and that her secondment was over as a consequence of the investigation into the alleged misconduct."

1. There is no evidence, including from the applicant, that she was ever "advised that she was successful" in her application for the ITC Manager role. Her own evidence is that Mr Shine told the applicant following the job interview for the position that she was "the preferred applicant". There is an important distinction between being a preferred applicant and the successful candidate for a job. It is evident from her statement the applicant understood Mr Shine referred to her being "preferred". That is, it was his (and presumably the interview panel's) preference for her to be placed in the role after interviews were conducted, but it was not confirmed. That subtle but important difference was apparently not made clear to Professor Mitchell and he made findings based upon that incorrect assumption.
2. In relation to Professor Mitchell's report more broadly, it does not sufficiently address the other aspects of the applicant's workplace circumstances, such as the impact of the misconduct investigation or its outcomes. There is also insufficient reasoning provided for his ultimate findings about causation, where he simply responded 'yes' to questions without providing a detailed basis for the conclusions. The overall content and summary provided by Professor Mitchel is noted, however the given the deficiencies in the report, that of Dr Verere Bateran is preferred.

1. The respondent obtained a report dated 13 August 2024 from Dr Verere Bateran, consultant psychiatrist, who was informed by the applicant as to her having been the "preferred candidate".[5] Dr Bateran is accepted to have had a more accurate history of the applicant's actual workplace circumstances. She considered the applicant suffered a "diagnosable primary psychological injury" and that:[6]

"...work-related stressors are the substantial contributing factor to her injury as they precede the development of her symptoms and were exacerbated following the loss of a potential new role as confirmed ITC manager."

1. Dr Bateran concluded that the applicant's:[7]

"...psychological injury was predominantly caused by the alleged promise of a substantive role which was subsequently removed following the outcome of the formal investigation process. It is this author's opinion that Ms Dotti's perceived injustice that she be offered the interim role, be allowed to interview and be advised that she was the preferred candidate for the substantive role whilst an investigative process was in lieu, was the predominant cause of her injury."

1. The opinion of Dr Bateran is consistent with the applicant's own reporting history as contained in the clinical records of her treating general practitioner (GP) as well as her notification of injury description.

1. During a consultation with Dr May Ling Ho, GP, on 18 March 2024 the applicant reported having "issues with manager", being "upset" and that she "had a complaint from a previous colleague". It was highlighted by the applicant in submissions that the timing of that consultation was such that she was not yet aware of the comments made by Mr Shine in the Teams meeting on the same date. There was no reference to the commentary by Mr Shine in the applicant's subsequent consultation with Dr Ho on 30 April 2024. On 31 May 2024 the applicant told Dr Ho that she was "still waiting for confirmation of her job at RNSH" when it was recorded that her mood was stable.
2. According to Dr Ho's notes, the applicant was "very upset" during their consultation of 2 July 2024 as the applicant "did not get job". She had been "accused of ? bullying" and was "now back at food services". Dr Ho recorded at that time the applicant "wants to go on Work Cover" and reason for the consultation was "stress due to work issue".[8] This is evidence that indicates the applicant was upset that she was not successful in obtaining the manager job in which she had been acting.
3. The applicant further consulted Dr Ho on 3 July 2024 when she was recorded as being "upset and distressed" having been "accused of misconduct" and:[9]

"Manager signed a form for partner to go to Dental Clinic before she left for another job.

[The applicant] was accused of signing the form even though previous manager said she signed it.

Was acting manager until she was accused of misconduct.

Has recording of manager belittling her in a meeting.

1. The GP notes suggest the applicant was upset and distressed about the being accused of misconduct, the investigation and then being required to return to her original job. The "recording", which is presumably reference to the 18 March 2024 commentary by Mr Shine, appears to have been a secondary matter during the applicant's consultation with Dr Ho on 3 July 2024.
2. On 26 July 2024 the applicant was recorded by Dr Ho as being "very stressed" and "not working at present". She was apparently "not being paid while investigation is going on" and "insurance has not yet accepted liability".
3. While it is accepted that GP notes are made and kept for treatment purposes, and therefore do not contain a full record of all relevant matters, they nonetheless provide a contemporaneous history of events and refer to patient concerns at a specific point in time. There is no reason in this matter for the content of the clinical notes to be disregarded.

1. The applicant submitted an undated notification of injury report to the respondent on or around 4 July 2024. In that form the injury is stated to be "mental health, bullying, false claims that have affected my family relationship mentally, emotionally and financially and my career".[10] She refers to events on various dates.
2. In relation to 8 March 2024 the applicant described being "very upset, Anxious, scared and mentally affected as I have never had allegations in all my years of work put against me" and of having "no cultural support from any staff member including management" in relation to being notified about the misconduct investigation. It is clear she considered herself to have been immediately affected by the misconduct investigation, which was well before she became aware of the comments by Mr Shine.
3. Reference is made to 25 March 2024 and the applicant being "upset and shaken up" about the comments by Mr Shine during the recorded 18 March 2024 Teams meeting. She goes on to describe accepting the acting ITC Manager role, applying for the substantive job, being interviewed and told she was the preferred applicant.
4. The description for 2 July 2024 and following is that:[11]

"After I was given an email from my response back to the report from HR was done in June. I was told by someone who I have never met Fiona Carmichael that my job is terminated immediately and to return to my HealthShare position and my final day is 28th June in the ATSIHS NSLHD. This caused my [sic] so much anxiety and fear the unknown and my patients as they have still not been told as of 04/07/24 [emphasis in original] that I have been dismissed over allegations that I don't think were appropriately looked at from a cultural view and that Ruby clearly stated she knew it was a relative of mine and that is why I got her to sign it and I made her aware. If I had anything to hide why would she know?

This has caused myself and my family relationship severe emotional, Financial and anxiety this whole process. It has caused me to have a severe decline in my health and mental health. I stayed and tried to do my job to the best of my ability whilst trying to deal with these issues I suffered, as I did not want to let the community suffer and have no ITC Chronic care help as this is a very serious and needed program for our people."

1. Although reference is made to the 18 March 2024 comments by Mr Shine in the injury report, the applicant's primary concerns, both before and after that date, in relation to her claimed injury were plainly to the misconduct investigation, its outcome and consequences.

1. The applicant's statement evidence is that the allegations of misconduct had her "rattled" and that her circumstances became difficult once the investigation concluded. In this regard, she said:[12]

"... I was given no indication before this that anything was being changed and I was not going to earn the Manager position money I was on and commence the permanent Manager position role after my secondment had ended as planned. This made a huge impact as I was now worried as I would be struggling to pay my bills and my car would be taken off me as I won't be able to afford the payments..."

1. In her 23 July 2024 statement that applicant summarised her injury claim as:[13]

"I am mentally traumatized from Peter Shine's bullying, his humiliating comment about me in the Microsoft Teams meeting on 19 March 2024, feeling belittled, lying to me and believing that I had the position of ITC Manager - and having been involved in the SNHN and working all hours of the night and day to educate myself in the system, when I had no training, which was mentally exhausting to me."

1. The applicant also refers to Mr Shine's "bullying behaviour" in her later 15 November 2024 statement and describes a conversation wherein she called him a "gutless dog". The applicant does not however describe in detail any specific instance of the "bullying behaviour" in which Mr Shine is said to have engaged in either of her statements.
2. The comment made by Mr Shine during the meeting on 18 March 2024 in her absence was undoubtedly inappropriate, he referred to the applicant in a demeaning way when resource constraints were being discussed. Although she was not present at the meeting, it does not excuse the improper and unprofessional language used by a senior public servant in a meeting of staff. That event would no doubt be considered bullying if it were in the course of repeated and unreasonable behaviour directed towards a worker, being the definition contained in Australia workplace law.[14]
3. I am satisfied the 18 March 2024 comment attributed to Mr Shine did in fact occur, was wrong and caused anguish for the applicant when she later viewed the recording.
4. A point of note is that while the applicant initially contacted relevant departmental staff about the comments made by Mr Shine, it was not further pursued by her at the time and the matter was not reactivated until after the investigation was completed and the disciplinary measures were imposed.
5. The substance of the applicant's statement evidence is that while Mr Shine's comments of 18 March 2024 were a factor, her primary concern was the misconduct investigation and matters specifically related to that process.

1. The applicant's 4 July 2024 injury report description, the GP consultation notes, the opinion of Dr Bateran and the weight of her own statement evidence is that primary stress and impact upon the applicant's mental well-being was the misconduct investigation, its outcome and the effect on her employment.
2. While the comment by Mr Shine on 18 March 2024 may have contributed to the applicant's condition overall, the weight of the evidence is that the main or principal, that is predominant, cause was the misconduct investigation and its consequences. It is reference to those events that feature most prominently in the available evidence, including the applicant's own.
3. The requirements of s 11A of the 1987 Act are therefore satisfied with respect to discipline (the complaint and misconduct investigation) and transfer (back to her substantive position at Healthshare). It must now be determined whether that process was reasonable action by the respondent.

1. The applicant was notified of the misconduct investigation by way of a letter from Mr Shine on 5 March 2024.[15] It was alleged the applicant had failed to comply with a direction not to enter details of her partner, Mr Cameron Gerber, into a computer database, that she later accessed records in that system without authorisation and also updated records in relation to Mr Gerber.
2. It seems that while Mr Shine initially had overall responsibility for the investigation, which was conducted by Mr Michael Felicetti a Senior HR Business Partner, that responsibility was later transferred to another senior officer at the Northern Sydney Local Health District, Fiona Carmichael, Deputy Director Nursing and Midwifery at Royal North Shore Hospital.
3. A copy of the investigation report was provided to the applicant with correspondence of 14 June 2024 for her comment. A final determination was made by Ms Carmichael and notified to the applicant in a letter dated 28 June 2024. It was determined that the misconduct allegations were sustained, and the applicant had breached various provisions of the NSW Health Code of Conduct. The applicant was sanctioned by way of a formal warning, an end to the secondment at ATSIHWS and that her substantive employer, NSW Healthshare, was to be notified of the investigation findings.
4. The applicant made various submissions criticising the investigation and its conduct, including that she was not given any prior notice of the investigation. It was contended the respondent "did not follow its own process" regarding the investigation, the "findings were inappropriate and unsubstantiated", the applicant had no support person present during an interview with the investigator (Mr Felicetti), that she did not appreciate the gravity of the investigation until 25 June 2024 (after receiving the report) and she had not been given any earlier explanation of potential consequences. The applicant further contended that she was not given cultural support during the investigation.
5. A copy of the NSW Health Managing Misconduct Policy (the Policy) was provided to the applicant with the 5 March 2024 letter from Mr Shine containing the allegations. The Policy outlines the process to be undertaken by the respondent when investigating allegations of misconduct. Although the applicant made general criticism of the investigation, it is evident the allegations were clearly explained in the 5 March 2024 letter and then clarified in a further letter to the applicant from Mr Shine on 21 March 2024 that included correcting a typographical date error. The applicant's submission that she was not given any warning of the investigation prior to the 5 March 2024 letter is somewhat unusual, given that letter constituted first notice of the matter. It is unclear what additional or earlier notice she expected to receive. I can find no prejudice to applicant in relation to how she was informed about the allegations and investigation.
6. The applicant was afforded an opportunity to respond to the allegations, which she did in writing on 14 March 2024 and 3 April 2024.[16] She had an opportunity to further respond during an interview with Mr Felicetti on or about 24 April 2024.[17] Other evidence was obtained during the investigation, including from computer system access records and the applicant's former manager, Ruby van Kool. Findings were then made based on that evidence, and as are contained in the 14 June 2024 investigation report. In making those findings, Mr Felicetti weighed the information he obtained from various sources, and it is clear the computer records corroborated the testimony given by Ms van Kool. The applicant was given a copy of the report for comment prior to Ms Carmichael making her determination. There is no basis to find the investigation was conducted other than in accordance with the Policy and what might be considered as standard practice for a complaint about workplace behaviour.
7. The applicant's concern about any involvement of Mr Shine in the investigation is relevant given his 18 March 2024 comment about her. It is however clear that Mr Shine's responsibility for the investigation was discontinued, and Ms Carmichael took over. There is no evidence that Ms Carmichael was anything other than an impartial senior decision-maker disinterested in the outcome. Indeed, the applicant made various comments about not knowing who Ms Carmichael was. The change of responsibility for the investigation was entirely appropriate and timely in the circumstances. It would have been untenable for Mr Shine to continue his supervisory role over the investigation.
8. The determination made by Ms Carmichael was based upon evidence obtained during the investigation, that was conducted on a day-to-day basis by Mr Felicetti. There is no reason for the investigation or its outcome to be impugned in relation to any early involvement by Mr Shine. The applicant is clearly dissatisfied with the investigation outcome, which is her right, but that is not sufficient basis for the findings about her conduct to be disregarded.
9. The applicant complains about not having been given an explanation about the potential consequences of the investigation. The letter of 5 March 2024 from Mr Shine included a copy of the Policy and made specific reference to Chapter 8 therein regarding potential investigation outcomes, being as significant as termination of employment. The evidence establishes the applicant was provided, and specifically referred to, information about the range of potential measures that may be imposed. She was given a formal warning after a determination was made about her breaching the Code of Conduct, that sanction was within the scope of the Policy.
10. As to her secondment, it was scheduled to conclude on 30 June 2024 and Ms Carmichael determined on 28 June 2024 that the applicant was not required to attend work for the remaining two days. It was an minimally earlier than expected end to the secondment, but the applicant was aware from the time the arrangement commenced that it was temporary until June 2024.
11. The Policy also made clear it was open to the applicant to request the presence of a support person during any misconduct investigation interview. The applicant highlights that she did not have a support person during the interview with Mr Felicetti. There is however no evidence she sought to have a support person present and certainly none that indicated any such request was denied. The applicant made no complaint about the conduct of the interview or lack of a support person in her 23 July 2024 statement. It was open to the applicant to request a support person had she chosen to do so and was her right according to the Policy. It is evident she made no such request. It is not now reasonable for her decision at that time to be raised as a grievance about how the investigation was managed.
12. In terms of general or cultural support that the applicant claims to have been denied, the 5 March 2024 letter with notice about the investigation include plain reference to support services that were available to her. Specifically, the about the District Employee Assistance Program as well as an external provider support service, People Sense, which it is noted has specialist indigenous cultural support. There is no evidence the applicant sought to obtain assistance or support from either of those programs and it was not contended that she did until a much later time, that is, after the investigation concluded.[18] Accordingly, there is no basis for the submission that the respondent did not make support services, including cultural support services, available to the applicant in the circumstances.
13. It was also argued that the applicant was offered the acting ITC Manager role despite the misconduct investigation and that should somehow be seen as evidence of mischief by Mr Shine. His reasons and motivation for offering the acting role to the applicant are not in evidence and I do not intend drawing unnecessary inferences. I do however note that at the time the applicant was offered the acting role, and later informed she was the preferred candidate, the misconduct investigation was on-going. She was aware of it and had by that time provided her response to the allegations. There was no reason for the acting role not to have been offered in circumstances of the investigation because no findings had yet been made about the allegations. She was entitled to the presumption of innocence. Once it was determined she had breached the Code of Conduct, the preferred candidate status changed, and she was not confirmed in the role. There is nothing unusual about that having occurred. It could not be considered unfair for a person found to be in breach of public service conduct requirements to not be confirmed in a more senior role in which they had been acting.
14. Nonetheless, the applicant contends her appointment as acting ITC Manager was some type of charade:[19]

"I feel that Peter Shine orchestrated my appointment to the Manager role just to avoid me making a formal complaint against him and that he set me up for failure and that he did not have any genuine interest in supporting me in the workplace."

1. While that may be the applicant's opinion, there is insufficient evidence to accept that proposition. On one view, the recorded comment of Mr Shine on 18 March 2024 might suggest he did not consider the applicant to be competent for the role. However, alternate interpretations of the very brief comment could be made, such as that he was referring to an unmanageable workload, which was apparently the topic of the meeting at that point in time. In the absence of more evidence, speculation does not assist. I do not make any finding as to the intentions of Mr Shine at the time of making that comment nor it is necessary to do so. That event was outside the scope of the misconduct investigation. It was relevant in the sense that Mr Shine was still responsible for oversight of the investigation at that time, which is evident from his 21 March 2024 letter,[20] but his involvement ceased thereafter, presumably in response to his comment about the applicant, and he was not the ultimate decision-maker.
2. The evidence does not establish the misconduct investigation was tainted or misdirected by Mr Shine's recorded comment about the applicant. The respondent appears to have acted appropriately in removing Mr Shine from the process once his conduct was identified.

1. I have considered the various matter raised by the applicant and the available material in evidence about the investigation. While there may have been obstacles associated with the investigation, there is no basis for it to be found unreasonable. The process employed by the respondent to deal with the complaint about the applicant's conduct was ostensibly fair and followed recognised investigative methodology. I consider the misconduct investigation and the consequences of it, being the formal warning and early end of the secondment, was reasonable action that it was open to the respondent to take in response to that complaint.

1. The applicant's psychological condition was predominately caused by the reasonable action of the respondent with respect to her discipline and transfer. The requirements of s 11A of the 1987 are established and the applicant's claim fails as a result. In the circumstances there must be an award for the respondent.

[14] s 789FD of the Fair Work Act 2009 (Cth).