EHM v DFP [2026] NSWPIC 39;

1. The respondent has failed to discharge its onus to establish the applicant's accepted psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on its behalf with respect to performance appraisal and discipline, and the defence under s 11A(1) of the Workers Compensation Act 1987 (1987 Act) is not made out.
2. The respondent is to pay the applicant weekly compensation from 20 March 2025 to date and continuing pursuant to ss 36 and 37 of the 1987 Act at pre-injury average weekly earnings (PIAWE) of $2,505.79 subject to indexation, with the respondent to have credit for payments made.
3. The respondent is to pay the applicant's reasonably necessary medical and treatment expenses arising from her psychological injury with deemed date of injury 3 December 2024 pursuant to s 60 of the 1987 Act on production of accounts, receipts or Medicare Notice of Charge.

A brief statement is attached setting out the Commission's reasons for the determination.

1. The applicant [EHM] was initially employed as an operations analyst by the respondent in November 2015. She was promoted to the Level 5 role of senior operations analyst in October 2021 and to reserved instance operations manager and the related role of people manager in October 2022, which was her role at the time of her injury on 3 December 2024.
2. A claim was brought for a psychological injury on 24 December 2024. The claim was disputed by a notice issued by the respondent on 25 February 2025 under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 in which liability was disputed for the applicant's claim for weekly payments and medical expenses.
3. The dispute was maintained following internal review on 19 June 2025.
4. The respondent asserted the applicant's psychological condition was wholly or predominantly caused by its reasonable action taken or proposed to be taken with respect to performance appraisal, discipline and/or dismissal relying on s 11A(1) of the Workers Compensation Act 1987 (1987 Act).
5. The applicant lodged an Application to Resolve a Dispute (ARD) with the Personal Injury Commission (Commission) on 12 September 2025 claiming weekly payments from

20 March 2025 to date and continuing pursuant to ss 36 and 37 of the 1987 Act. 6. At the preliminary conference held on 16 October 2025 the ARD was amended to include a claim for medical or related expenses pursuant to s 60 of the 1987 Act, and the parties agreed the applicant's pre-injury average weekly earnings (PIAWE) rate is $2,505.79. 7. The dispute was listed for conciliation conference and arbitration hearing on

1. The parties agree the following issues remain in dispute:

(a) whether the applicant's psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal and/or discipline pursuant to s 11A of the 1987 Act;

(b) the extent and quantification of the applicant's entitlement to weekly compensation from 20 March 2025 to date and continuing pursuant to ss 36 and 37 of the 1987 Act, and

(c) whether the applicant is entitled to the payment of medical or related expenses pursuant to s 60 of the 1987 Act.

1. The parties appeared for conciliation conference and arbitration hearing on

5 December 2025 in Sydney. Ms Eraine Grotte of counsel appeared for the applicant instructed by Ms Christina Dahdal, legal practitioner. Mr Paul Stockley of counsel appeared for the respondent instructed by Ms Jessica Harwood, legal practitioner. Ms Sarhene was also present. 2. During conciliation the applications to lodge additional documents dated 7 October 2025,

13 November 2025 and 3 December 2025 were admitted by consent. The respondent advised it relies on action with respect to performance appraisal and/or discipline and not action with respect to dismissal. 3. I am satisfied the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

1. The following documents were in evidence before the Commission and considered in making this determination:

(a) ARD and attached documents;

(b) Reply and attached documents;

(c) applicant's Application to Lodge Additional Documents dated 7 October 2025 and attached document (ALAD 1);

(d) applicant's Application to Lodge Additional Documents dated 13 November 2025 and attached document (ALAD 2), and

(e) respondent's Application to Lodge Additional Documents dated

13 November 2025 and attached documents (ALAD 3).

1. No application was made to call oral evidence or to cross-examine the applicant.

1. The applicant provides statements signed on 10 February 2025 and 5 September 2025.
2. In the first statement provided to an investigator the applicant describes her duties with the respondent as a full time employee including managing and supporting reserved instance (RI) analysts based in Sydney and Tokyo, partnering with relevant stakeholders such as the respondent's accounting and finance teams, and overall enhancing the customer experience and maintaining clarity and accuracy in relation to the RI transactions. Her manager from March 2021 was [FIH].
3. The applicant describes issues and events relevant to her claim as relating to paperwork she prepared supporting the promotion of her team member [GHA] from 2023. The promotion application was deferred from 2023 to the second quarter of 2024 and it was unsuccessful. The applicant was advised the promotion documentation submitted by her was not good enough and she should not have driven the promotion as she had done.
4. The applicant felt from approximately that time onwards there was a change in her relationship with [FIH], with examples such as [FIH] putting notes on the applicant's agendas for regular fortnightly meetings, making comments on the agendas and asking the applicant questions about the points she put forward, which [FIH] had not done previously.
5. On 28 May 2024 the applicant had a one-on-one meeting with [FIH] where she was asked whether she had spoken in Korean at a team meeting that day. This is in the context of the applicant being of Korean background and originally being hired by the respondent as a Korean-speaking Customer Support Agent. With her current work team she was responsible for its Korean speaking queue. The applicant explained she had asked herself what an attendee's name was in Korean and had not spoken in Korean in the meeting.
6. In about May 2024 the applicant experienced a strain-based right shoulder injury which also affected her neck, for which she had physiotherapy treatment. No claim has been made for that condition.
7. At about that time the applicant was placed on a coaching plan largely on the basis of

[GHA]'s promotional process and its documentation not having been successful. The coaching plan was essentially intended to monitor and improve the applicant's work performance. Regular fortnightly meetings were held with [FIH] and the applicant completed assigned tasks. The coaching plan was ongoing when she departed from work on 3 December 2024. 8. In about June 2024 the applicant contacted the respondent's human resources department to discuss her concerns about [FIH]'s management of her and the change in their relationship by that time. She was advised to speak to [FIH] to try to address and resolve the issues and if that was not successful she should speak to [FIH]'s manager. The applicant felt this would only inflame the situation with [FIH]. 9. The applicant also found [FIH] often criticised her communication skills, almost every day, and regularly told her that she was not clear verbally or in emails. These communication issues had never been raised with the applicant previously by any other staff or managers. 10. Emails between the applicant and [FIH] are referred to as showing the type of harsh comments and emails the applicant felt [FIH] was exchanging with her throughout this time. 11. The applicant had a further meeting with human resources in about November 2024 to discuss her concerns regarding [FIH], and there may have been a further meeting. 12. Another issue the applicant refers to was when she left the office on 13 November 2024 when her daughter returned from school camp early at 2.15pm. This was in the context of flexible working conditions. [FIH] sent her an email later that day asking about this when she had been present in the office when the applicant explained the reason she was leaving early that day. 13. [FIH] generally did not speak or interact with the applicant during this time apart from greeting her and saying good morning for example. 14. The applicant was becoming highly anxious in this period about her interactions and communications with [FIH], checking her emails multiple times before sending them to avoid mistakes, and her performance and productivity in general were affected. 15. At a team meeting in November 2024 at which [FIH] was not present various topics were covered and issues with individual tickets and customer transactions. Different approaches and solutions were discussed including in relation to a ticket the applicant brought. The team contributed their ideas in what the applicant saw as a normal and constructive meeting. 16. [FIH] sent her an email the following day questioning the applicant and said using her ticket was inappropriate. 17. At a further regular one-on-one meeting with [FIH] on 3 December 2024 the applicant's productivity was questioned following which the applicant collapsed outside the meeting room. She was taken by ambulance to St Vincents Hospital. She has not returned to work. 18. The applicant describes her medical treatment. Dr Hajeong Lee, the applicant's general practitioner, provided an initial certificate of capacity in the week commencing

9 December 2024. Dr Lee referred her to Ms Rose Kwon, psychologist, in January 2025 and the applicant is taking medications. She continues to have physiotherapy treatment for her shoulder and neck. 19. In her second statement of 25 August 2025 the applicant responds to [FIH]'s statement of 17 January 2025. She sets out where she disagrees with respect to [GHA]'s promotion process, her English skills, the supportive image [FIH] presents, the undermining of her authority with her team, and with no meaningful leave being feasible when she suffered with her shoulder condition despite communicating her symptoms and her intention to seek guidance from her general practitioner for her symptoms such as chest pain and body itchiness. 20. The applicant says [FIH] was aware of the connection between her request for three months of leave and the impact of her work on her health. She consistently informed

[FIH] her health was deteriorating due to work-related stress, she was experiencing ongoing pain and she had lost significant weight. 21. The applicant disagrees with [FIH]'s description of the team meeting and the use of tickets and any failure to follow clear instructions, as well as of the day she left early to pick up her daughter from school camp. 22. The applicant disagrees that [FIH]'s interactions with her were normal and professional. She strongly disputes the accuracy of [FIH]'s account of their meeting on

3 December 2024, the coaching plan and the concept of an agreed separation. 23. The applicant describes the impacts of the injury.

1. [CEB] provides a statement signed on 5 August 2025 in which she states she has known the applicant since about 2015 while working for the respondent.They worked together more closely from 2021, both working under [FIH].
2. [CEB] says working under [FIH] was stressful, difficult and challenged at times.
3. The applicant frequently confided in [CEB]. She was impacted severely by her treatment by [FIH]. She had a functional manager in the United States and [FIH], her manager in Sydney, which was at times uncomfortable and sometimes made her feel anxious and worried.
4. In about the middle to end of 2023 the applicant was submitting draft promotional documents to [FIH] for review which caused her stress that seemed to primarily be fear of rejection and criticism. At one point [FIH] asked the applicant to seek additional support from the functional manager in the United States. The process became overcomplicated and put the applicant in a very stressful position where she needed to satisfy all the parties. The applicant's relationship with [FIH] did not seem to be supportive.
5. One day at the end of 2023 [CEB] describes that the applicant cried about how stressed she was. She was trying her best but felt her best was not good enough for [FIH]. It seemed like she only expected [FIH] to put her down and make her feel incompetent and burdensome instead of providing any support or assistance.
6. [CEB] feels the applicant was treated more harshly than others, particularly by [FIH]. This created a vicious cycle where the applicant was overthinking and highly sensitive to ensuring all [FIH]'s instructions were followed literally. [CEB]'s promotional documents were reviewed by [FIH] and accepted with minimal feedback. In contrast the applicant's drafts were complicated by [FIH]'s instructions, criticisms and comments.
7. The level of scrutiny appeared unfair, especially as it was the first time the applicant prepared a promotional document and she had no formal training beforehand.
8. [CEB] also refers to the incident where [FIH] asked the applicant not to speak Korean. This struck [CEB] as odd at the time, particularly as [CEB] regularly spoke Korean at work and was never reprimanded and so she felt the applicant was being singled out.
9. [CEB] had similar experiences with [FIH] emphasising small mistakes, and she went as far as rewording or rewriting her emails. Ongoing difficulties with [FIH] ultimately contributed to [CEB]'s decision to leave the team and she now works for the respondent with a different team.
10. The applicant's self-doubt grew significantly over time and the psychological impact of her treatment was eroding her professional self-worth in [CEB]'s opinion. She noticed numerous changes with the applicant as she became more isolated and showed signs of being easily distracted and overwhelmed.
11. [CEB] sees the applicant's deteriorating mental health as seeming to be directly tied to the pressure and treatment she experienced at work, especially from [FIH].

Dr Ashwinder Anand, independent neuropsychiatrist

1. Dr Anand on 27 May 2025 diagnoses the applicant with adjustment disorder with mixed anxiety and depressed mood supported by the significant stressor she experienced due to prolonged workplace bullying and harassment by [FIH].
2. The hostile work environment characterised by micromanagement, conflicting instructions and undermining of her authority has significantly contributed to her psychological distress and suggests a direct link between the workplace incidents and the onset of the applicant's symptoms.
3. These factors combined with the lack of support from Human Resources have exacerbated her symptoms and led to significant psychological impairment in Dr Anand's opinion.
4. The applicant's psychological capacity for work and studies has been significantly impaired due to her current condition and she requires future treatment.
5. Her employment was the main contributing factor to her psychological injury.
6. Dr Anand's opinion is that the applicant's condition did not arise from reasonable disciplinary actions, and he disagrees with Dr Nagesh's view in this regard. The hostile working environment created by her manager's behaviour is the primary factor in the applicant's psychological distress, rather than any administrative measures.
7. The fact that the applicant was still working full time does not negate the severity of her psychological condition. In Dr Anand's experience many individuals with severe anxiety and depression continue to work despite their symptoms, often due to economic necessity or fear of repercussions. Her ability to maintain employment does not diminish the impact of the hostile work environment on her mental health.

1. Dr Jackson Glenn, Senior Resident Medical Officer at St Vincents Hospital Emergency Department confirms the applicant presented on 3 December 2024 at 2.00pm with a panic attack. The diagnosis made was of psychological-anxiety after an episode at work. The applicant declined psychiatry and social work input and a plan was made for her to follow up with her general practitioner.
2. Dr Lee provides a medico legal report on 2 November 2025. Dr Lee notes the applicant's initial presentation complaining of stress was on 10 May 2024 and the initial certificate of capacity was issued on 24 December 2024. At the first consultation the applicant reported feeling burnt out for a few weeks and she usually works hard and long hours, however the main factor contributing to her burnout appears to be workplace dynamics and communication issues. Dr Lee describes consultations up until 18 September 2025.
3. The employment with the respondent is the sole contributing factor to her injury Dr Lee says, with no previous psychological injuries reported. The diagnosis is major depressive disorder with anxious distress and post-traumatic stress disorder is not excluded.
4. Dr Lee's opinion is that although the information he has is limited it would be difficult to conclude that the respondent's actions were reasonable. It is overly simplistic to assume a person is in good health merely because they were working full time. Total incapacity for work continues.
5. Dr Lee refers the applicant to Headspace on 14 December 2024 noting;

1. On 4 March 2025 Dr Lee refers the applicant to Ms Rose Kwon, psychologist.
2. Ms Kwon reports to Dr Lee on 21 January 2025 that the applicant presents with symptoms of depression and anxiety in the context of a workplace injury.
3. Ms Kwon records the applicant reports her relationship with her manager worsened since May 2024 with a failed promotion of a team member she was managing, and she was then given feedback and criticised on numerous occasions for her poor communication skills despite working for the respondent for nine years with no such feedback. She was made to feel humiliated, stupid, and incompetent and that her work was never good enough.
4. Ms Kwon describes the applicant's symptoms, and that her mother had come from Korea to provide assistance. She feels significant shame at her present situation and guilt for the burden she has placed on her husband. Dr Lee has already started her on Prazosin and Zoloft.
5. The applicant's presentation and symptoms are in keeping with major depressive disorder with anxious distress.
6. Ms Kwon's report to the insurer on 18 February 2025 lists the applicant's current symptoms and persistent efforts to avoid stimuli that might trigger. The diagnosis remains as major depressive disorder with anxious distress with a likely provisional diagnosis of post-traumatic stress disorder.
7. The contributing factors are an increasingly difficult relationship with her manager where she reports being belittled and humiliated as the main contributing factor leading to her psychological decline. This relationship began to worsen around May 2024 after a failed promotion of a team member, followed by numerous occasions when she was made to feel incompetent and inadequate.
8. Ms Kwon reports on treatment, barriers to treatment and progress made so far. The applicant currently has no capacity for work. It is likely the applicant is going to require ongoing psychological treatment for another six to ten months.
9. Ms Kwon provides a medico legal report dated 16 September 2025. Ms Kwon confirms the above history and diagnosis. The applicant is likely to benefit from psychiatric review and management and more frequent and consistent psychological treatment sessions.
10. The applicant is currently not fit for work or study and she is unlikely to improve without consistent and structured psychological treatment. Her reintroduction to work or study should be gradual, supported and carefully matched to her psychological readiness, ideally in a new environment free from previous triggers. She is likely to have no capacity to resume pre-injury duties with another employer for another six to twelve months.
11. Given the absence of alternative contributing factors and the clear temporal relationship between her exposure to adverse workplace experiences and the emergence of her psychological symptoms, Ms Kwon's clinical opinion is that the applicant's employment was a substantial contributing factor to the psychological injury. Her psychological injuries including symptoms are directly attributable to the adverse workplace environment and interpersonal dynamics she described. The employment was the main contributing factor to her psychological injury.
12. Ms Kwon's opinion is that the psychological injury did not arise entirely or predominantly due to reasonable disciplinary action taken by the respondent. The disciplinary and administrative actions taken by the respondent regardless of intent "were not delivered in a way that could be considered wholly reasonable".[2] The fact that the applicant continued to work full time does not preclude the presence of a serious psychological injury.
13. Dr Lee answers questions from the insurer on 9 January 2025. In answer to the question on the date of the initial onset of the applicant's psychological symptoms Dr Lee answers; "[i]t is gradually accumulated and became significant around April 2024."[3] The main contributing factor is the employment and the psychological symptoms developed through interactions with her supervisor/manager at work.
14. In answer to the question of whether Dr Lee believes the whole and predominant cause of her symptoms are reasonable actions of the employer he answers; "[s]he reported her symptoms to be developed over many episodes of an unreasonable treatment from her manager and humiliations."[4] The applicant has no current work capacity.
15. The clinical records of J Medical & Cosmetic Centre include the active past history of right shoulder bursitis and calcinosis in 2024.
16. Relevant entries include on 5 May 2023 "stress at work +++,"[5] on 10 May 2024 the applicant feels burn out two to three weeks ago and "usually work +++, but amount of work is not a factor, feels as workplace dynamic/communication, feels higher expectation from manager. anxious to open email in the morning."[6]
17. On 1 July 2024 burn out, insomnia, low appetite and stress ++ is recorded, and the applicant had counselling provided by the employer. The applicant wants to have rest from work for three months as soon as she has tidied up her current work, and she is prescribed Zoloft.
18. On 15 July 2024 a psychologist has been booked and the applicant still has nightmares, she is sleeping better but wakes up, and she seems stable. Prazosin is prescribed.
19. On 22 August 2024 Dr Lee records the applicant has had two sessions with a psychologist and the applicant is not sure if it has helped. On 25 October 2024 Dr Lee records the applicant has tried to go back to work but once she started the anxiety came back, although it is better than before, and there is no change in the circumstances. Zoloft is increased.
20. On 1 November 2024 Dr Lee records the applicant has ongoing headache, a recent episode of severe spinning dizziness and she attended an emergency department. She has an ongoing workplace issue and wants to keep a medical certificate for three months off. She is referred for an MRI of the brain to exclude intracranial pathologies.
21. In a health assessment carried out by Ms Hyejin Jung on 15 November 2024 the history includes that the applicant is having poor sleep, early morning wakening, low self-esteem, depressed mood, anxious, and stress at work.
22. On 30 November 2024 Dr Lee records "concerned matter with company not work well so far",[7] the applicant considers workers compensation and the process is explained.
23. At the consultation on 14 December 2024 Dr Lee notes the applicant collapsed after meeting with her manager and attended the emergency department for a panic attack. The applicant wants to change psychologists. She is taking Zoloft with not much effect so far but she is sleeping better and will resume taking Prazosin. She is considering workers compensation.
24. The initial workers compensation certificate of capacity is issued by Dr Lee on

24 December 2024. This includes as the diagnosis psychological injury with the diagnosis yet to be made, it is related to work due to ongoing conflict with her manager, and the applicant feels humiliated, over pressured and had an episode of collapse attending the emergency department. 25. The applicant is certified by Dr Lee as having no current work capacity from

1. The applicant's monthly payslips from the respondent for the period 1 December 2023 to

30 November 2024 are with the ARD, as well as the Australian Taxation Office income statement for financial year 2023-2024. 2. A schedule of medical expenses with accounts and receipts totals $907.35.

1. The respondent relies on the s 78 notice of 25 February 2025 and the internal review outcome of 19 June 2025.

1. Procare provide a factual investigation report on 11 February 2025.
2. [FIH] provides a statement signed on 13 February 2025.
3. [FIH] is a senior manager - business and product operations - ABJ and EMEA and she has been employed by the respondent since 1 December 2020. She was the applicant's direct manager since about March 2021 based in the same office in Sydney.
4. The applicant's primary responsibility originally was to support the Korean queue for customers requesting assistance, she then also supported global queues, and in

October 2021 she was promoted from a Level 4 to Level 5 and to a people manager role in October 2022 as a result of her consistent and sold work performance as an individual contributor at the time. 5. [FIH] describes the work of the applicant regarding [GHA]'s promotion application submitted in May 2024 which was not successful. [FIH] then outlined and reiterated matters previously discussed with the applicant such as a project that had not been completed and feedback issues which had not been addressed, which [FIH] describes as more constructive in nature than the applicant suggests. She does not agree there was a change in their working relationship from that time onwards. 6. [FIH] adopted the approach of providing the applicant with written clarity, confirmation and feedback on agendas she submitted in their fortnightly meetings and discussions as she had noticed a tendency on the applicant's part to suggest there had been a misunderstanding or she had not been informed of particular work matters when this did not appear to be the case. This was done in order to assist the applicant. 7. [FIH] observes the applicant does have certain limitations in terms of her verbal and written English skills, she has a strong Korean accent and is at times hard to understand. 8. Following the meeting on 28 May 2024 [FIH] was contacted by staff members raising concerns to the effect the applicant had been speaking in Korean to another Korean-speaking staff member [CEB], and felt this behaviour made them feel awkward and was exclusionary towards the rest of the group. It is expected that all team-based discussions of this nature be conducted in English. [FIH] raised this with the applicant and gave her the benefit of the doubt and accepted what she said to her. [FIH] did not ask other staff about this following that meeting. 9. [FIH] had personally witnessed the applicant speaking in Korean at a management meeting in November 2023 which had concerned her as she felt it was exclusionary and inappropriate. [FIH] was advised by her direct manager to just let it go in that instance. 10. At no stage has [FIH] indicated in any management meeting or other setting that the leadership group wants the applicant to leave their work team. On the contrary [FIH] regards herself as having continued to support the applicant as her direct manager. 11. [FIH] was aware in about May 2024 that the applicant had a shoulder injury and expressed her sympathy and encouraged her to take time off, contacting the Occupational Health and Safety section to see if any additional support could be provided. 12. From June 2024 the applicant was placed on a 'Focus' Plan, alternatively referred to as a Coaching Plan, preceded by a number of issues identified in connection with her work performance in the prior months including;

(a) in February 2024 factually incorrect matters in the applicant's presentation on wins and challenges for 2023 and her strategies, goals and improvements for 2024 were raised with the applicant by a member of the senior leadership team, and

(b) in March 2024 in the applicant's performance review [FIH] raised that a member of the applicant's team was doing a large portion of her job, and that the applicant had been questioned about the basis of the ratings she gave her team members by the member of the senior leadership team, and [FIH] emphasised the applicant needed to communicate and engage effectively with her direct reports and effectively adopt the respondent's writing style.

1. [FIH] started to informally coach the applicant in the above areas after March 2024 however she observed the issues in her work performance continued during this time.
2. The advice from Human Resources was that the applicant should be progressed to a formal Coaching Plan which [FIH] discussed with the applicant in June 2024. The applicant understandably appeared unhappy and she appeared somewhat taken aback, expressing that she felt she had done everything she was required to do in her role.
3. A Level 6 manager was to meet with the applicant weekly to help support her with technical and functional requirements relevant to the tasks to be assigned under the Coaching Plan which were to be appropriately spaced out.
4. The applicant participated in the Coaching Plan for three weeks of the scheduled eight weeks before she went off work on sick leave between 8 July 2024 and 11 September 2024. She then took personal leave from 12 September 2024 to 8 October 2024 when she returned to work.
5. During this time a team member resigned and another took another role and both told [FIH] this was due to the applicant's communication and related issues and her lack of management and effective leadership. The applicant had unsuccessfully applied for the role the second team member had successfully applied for which [FIH] advised her of on her return to work.
6. [FIH] conducted a Customer Satisfaction Survey for their whole work team regarding their managers in the second quarter of 2024. [FIH] oversees three managers. There was quite negative feedback results in relation to the applicant which [FIH] provided to her.
7. The applicant was given four weeks from her return to work in October 2024 prior to recommencing the Coaching Plan on 4 November 2024. The applicant advised her of a medical episode outside work on about 29 October 2024 when she attended an Emergency Department and she returned to work on 4 November 2024. The Coaching Plan was recommenced with weekly meetings with [FIH] as well as with another manager to assist her.
8. [FIH] describes issues she saw with the applicant's work performance and that she did not properly follow her instructions and she was also trying to make excuses. She describes the day the applicant left the office early to pick up her daughter.
9. There was no change in her approach or attitude towards the applicant following her return to work in October 2024 or at any other time, which continued to be normal and professional.
10. At the regular fortnightly meeting on 3 December 2024 [FIH] advised the applicant that the quality of her work under the Coaching Plan did not appear to have been met and there was a conversation about possible options including separation and a package.
11. The meeting was difficult in nature. [FIH] was advised after the meeting that the applicant had an episode that was something like a minor panic attack.
12. Documents including the applicant's promotion letter of 1 September 2021, general job level guidelines, people manager guidelines, the Level 5 manager job description and the respondent's performance management process are with the Procare report.
13. The 'Focus' entry preview of 17 June 2024 created by [FIH] states the applicant was not meeting required metrics for the role and she should improve leadership principles of ownership, earn trust and dive deep to improve her performance. It documents how the applicant is not meeting performance expectation of her role with the unsuccessful promotion of [GHA] as the example.
14. There had been consistent feedback for the past six months on the need to focus on developing the applicant's management, communication and leadership skills, critical to her role. [FIH] notes the applicant tends to get stressed easily, lacks confidence and appears unable to make an informed decision without confirmation.
15. Active listening and creating an inclusive team environment, [DFP] writing, critical thinking and problem solving skills, building trust and fostering a positive working relationship with her direct reports are the ways in which the applicant needs to improve to meet expectations. She needs to successfully complete active listening training. Feedback and observations are included with this document.
16. An email from [FIH] to the applicant on 27 November 2024 advises she is not meeting the expected standards for an L5 Manager in the role. The feedback may be difficult to hear but it is provided with the intention of helping the applicant grow and succeed.
17. Coaching plan deliverables of feedback on an active listening document, a review of

[GHA]'s promotional document feedback, and observations around her general performance are set out. Four items due over the next 10 days are listed as well as additional items, with a final note that the applicant has told her she has some ongoing health problems and she is able to contact the Employee Assistance Program. 18. The applicant sent an email to human resources on 16 December 2024 noting her concern about returning to her current role under [FIH]'s management and that her performance was consistently strong until May 2024 after the unsuccessful promotion document. 19. The applicant requested support in finding a role with the respondent even it meant taking a level downgrade or transitioning to other [DFP] subsidiaries as she is deeply concerned about returning to work under [FIH]'s management in February 2025. She is advised that she may be entitled to workers compensation if she believes the incident on

1. The Discharge Summary of St Vincents Hospital dated 3 December 2024 is referred to above.

1. Dr Nagesh reports on 5 February 2025 that the applicant alleged her manager bullied her, targeted her, criticised her and humiliated her and in that context she developed symptoms including depressed mood, anxiety, panic attacks, insomnia, loss of appetite, nightmares, lack of energy and motivation and feelings of worthlessness.
2. Dr Nagesh describes the employer's statements, the promotion document issue, the applicant's performance appraisal and her reaction to that, that she found the goals and criteria set out in the performance plan to be unachievable, that she was advised she was not meeting the bar in November 2024, and she fainted at work on 3 December 2024 and was taken by ambulance to hospital.
3. The diagnosis is made of an episode of adjustment disorder with depressed and anxious mood. The applicant is totally incapacitated for work and once her symptoms resolve she can return to pre-injury duties not working under the same manager, or she can return to suitable duties. She needs ongoing treatment. Employment appears to be the main contributing factor.
4. On the balance of probabilities Dr Nagesh's opinion is that the psychological injury was wholly or predominantly caused by action taken by the respondent.
5. Even though the applicant alleges she was symptomatic and bullied and harassed since April 2024 she was still working full time, which is not consistent with being severely depressed or anxious. Her incapacity coincides with her performance appraisal. She also only sought help after she went off work and in between she had gone off work for her shoulder surgery.
6. Dr Nagesh's opinion is the whole or predominant cause of the alleged psychological injury is the performance appraisal which the applicant was subject to which she perceived as being bullied and harassed.

1. Emails between [FIH], the applicant and [GHA] on 26 February 2024 are in relation to the delay in the roll out of [GHA]'s project to offer internal customers a self-serve option on common questions.
2. Emails between [FIH] and the applicant at the end of February 2024 are in relation to discussions on the preparation of performance metrics for the applicant's team.
3. Emails between [FIH] and the applicant in March 2024 are in relation to improving the performance of a member of the applicant's team and [FIH]'s feedback including that the applicant's tone should be a little softer.
4. Emails between [FIH] and the applicant in June and July 2024 are in relation to the applicant's Coaching Plan.
5. There are detailed emails from [FIH] that [FIH] forwarded to human resources following up her one-on-one meetings with the applicant.
6. These include [FIH]'s comments on an active listening document prepared by the applicant in November 2024. Emails between [FIH] and the applicant in November 2024 include [FIH]'s comments on the active listening narrative that requires updating, [GHA]'s promotion document, performance observations and items due by 15 and

18 November 2024. On 21 November 2024 [FIH] includes a link to her comments on [GHA]'s promotional narrative with feedback due by 4 December 2024.

1. The respondent's payslips from 1 December 2024 to 29 September 2025 indicate the applicant received monthly payments until 31 August 2025.
2. The applicant's financial year statements and income statements as well as bank statements for 2024 and 2025 are with the respondent's application to lodge additional documents.

1. The respondent made oral submissions which have been recorded and form part of the Commission's record. These are set out below.
2. Any insight that can obtained not through ex post facto or retrospective but contemporaneous sources is of most assistance. Often the sole source is clinical notes of treating doctors or psychologists made in a non-adversarial context.
3. In this case there is also a contemporaneous recording made by the respondent of its engagement with the applicant in the 'Focus' plan from 17 June 2024.
4. On 3 July 2024 there is an entry that the applicant's performance had declined with a detailed description of the problems the author observed and recorded as well as the author's responses to what might be done to move forward.
5. On 6 November 2024 it is recorded that the applicant's performance is unchanged and on

27 November 2024 the performance has again declined. 6. The formal performance review commenced on 17 June 2024 but what had been occurring in the workplace goes back to matters also described in the medical histories. 7. In particular there are observations relating to the promotion of [GHA] and the genesis of the problem seems to go back to at least October 2023 and the attempts to engage with the applicant in what the respondent submits is an appropriate and positive way to enhance her continuing engagement and performance. 8. The respondent observes the series of emails to 3 December 2024 between [FIH] and the applicant that provide a flavour of the nature of the work being performed, which is operational as well as performance appraisal. [FIH]'s reply is measured and courteous and there is politeness between both participants towards each other. 9. In one email [FIH] thanks the applicant for the update and says she did not mean for the applicant to stay up late after hours, which is quite a courteous and thoughtful comment. 10. The email of 8 March 2024 has the participants using annotations to set out their observations and again the respondent submits this is courteous and appropriate. 11. [FIH] acknowledges on 8 March 2024 some of the difficulties that can arise from the applicant's emails that can come across as a little harsh or more forceful than intended, although she understands the applicant is trying to be clear and professional. This again reflects a degree of consideration, sensitivity and thoughtfulness on [FIH]'s part, which the respondent acknowledges is generally reciprocated. 12. On 8 May 2024 [FIH] gets back to [GHA]'s promotional document which in some ways is the genesis of the problems that arose, and [FIH] says the applicant also told her that her 'mental health' was poor and she felt 'burnt out' and needed to have a break. She is encouraged to consult the Employee Assistance Program. 13. The respondent's submission is that there is no instance of bullying or harassment, which are terms that appear in the discourse once workers compensation is contemplated. 14. [FIH]'s email is again not only appropriate but thoughtful, and all the emails are commended to the Commission. 15. The email of 15 June 2024 commends the applicant for her willingness to listen and openly discuss key areas for her professional growth, which the respondent submits must constitute performance appraisal. [FIH] says she appreciates the effort and dedication the applicant had been putting into the team, which is entirely inconsistent with the ex post facto allegation of bullying and harassment. The email then goes into the details of the performance improvement plan. 16. The series of emails continues. The email following up a one-on-one meeting on

19 November 2024 discusses the coaching plan, performance observations and further items. On 25 November 2024 the applicant responds to an email from [FIH] and says she will follow her instructions. On 28 November 2024 there is a catalogue of events the applicant is reporting on that is operational and in response to [FIH]'s email setting out feedback from direct reports regarding career growth discussions. 17. The respondent draws the Commission's attention to the emails as the record of dialogue and engagement that passed between the two main participants in this process. 18. Dr Lee's report of November 2025 answers a question asked by the applicant's lawyers telling us the initial presentation complaining of stress was on 10 May 2024, however the initial certificate of capacity was not until 24 December 2024. This catalogue of other complaints emerges once the applicant decides she wants a workers compensation certificate. 19. The applicant's perception of her experiences does not matter in the context of recent actions by the respondent in respect of performance appraisal or discipline, and does not bring it within the rubric of Attorney General's Department v Kay.[8] 20. When you look at the clinical notes the respondent submits you will see Dr Lee puts a gloss on Dr Nagesh's opinion. Dr Lee's report does not shed additional light on the issue other than to record the applicant's view of things. 21. Dr Lee's clinical notes record on 10 May 2024 the applicant feels burn out two to three weeks ago, she usually works a lot but the amount of work is not a factor and she feels there is a workplace dynamic/communication and higher expectation from managers. This is the only record Dr Lee refers to in his report to the applicant's lawyers. 22. In several other attendances Dr Lee makes no reference to the applicant's psychological state. 23. On 1 July 2024 Dr Lee records burn out, insomnia, low appetite and stress, and she has had counselling provided by the employer. She wants to have rest from work for three months as soon as she tidies up her current work, and she is prescribed Zoloft. On

15 July 2024 the applicant is noted as having nightmares still but sleeping better, and this is while the 'Focus' plan is either being instituted or reviewed. 24. On 22 August 2024 Dr Lee records the applicant had attended two psychology reviews and help with a question mark. On 1 November 2024 the applicant has dizziness and attends the emergency department and she wants to take three months off work. 25. On 30 November 2024 the applicant tells Dr Lee she was concerned the matter with the company has not worked well so far. She considers workers compensation, asks about it and has the process explained. 26. Dr Lee then records on 14 December 2024 the applicant collapsed after a meeting with a manager and attended the emergency department with a panic attack. The separation from the workplace occurred at about that time as well. 27. Dr Lee barely provides any records that assist in getting some insight into what was happening in the workplace, at least to the extent she was reporting this to him. 28. The respondent submits this is entirely consistent with the assumptions recorded by

Dr Nagesh who is across the performance plan known as 'Focus' of 17 June 2024. He diagnoses adjustment disorder with depressed and anxious mood and to that extent there is agreement. Dr Nagesh says regarding the contribution of the action taken that this is the predominant cause of the applicant's condition. 29. Dr Anand was provided with Dr Lee's report of 9 January 2025, the psychologist's report as well as Dr Nagesh's report. Superficially at least there appears to be a temporal connection between a meeting regarding the applicant's performance and the onset of the panic attack on 3 December 2024 and he makes a very similar diagnosis to Dr Nagesh. 30. The respondent submits the contemporaneous material which is most important does not show there was a hostile work environment characterised by those negative features recorded by Dr Anand and these must simply be assumptions on his part. 31. Dr Anand refers to bullying and harassment that the respondent again submits is his assumption. It is difficult when doctors are asked to comment on whether actions are legitimate or reasonable as this is not really for doctors to comment on. 32. The respondent says in this instance the conditions of s 11A are made out with respect to performance appraisal and what can also be described as discipline. The legislation may seem to the outside observer to be a little harsh and some people are disentitled as a result, however that is what the legislature has intended.

1. The applicant made oral submissions which have been recorded and form part of the Commission's record. These are set out below.
2. The applicant was promoted by the respondent two or three times so they must have appreciated her skills. There were no identified communication or active listening problems until May 2024.
3. There is no evidence of any performance problems until [GHA]'s promotional documents and the material the applicant was meant to put forward to assist her get the promotion. Immediately [FIH] places the applicant on a 'Focus' plan or coaching plan ostensibly to monitor and improve her work performance and she intends to have weekly meetings.
4. The 'Focus' plan starts in June 2024 and there is an observation one week into it that performance is unchanged. The emails the respondent refers to sound very civilised and controlled but the issue here is about tone which is not obvious in the emails when [FIH] is criticising the applicant for perhaps softening her tone.
5. [FIH] says the applicant needs to listen and directs her to leverage tools and resources. She comments that the applicant continues not to listen or leverage existing resources and follow through on clear instructions, for example placing a team member into the 'Focus' plan and personal time off for another team member.
6. This is in July 2024 and we know the applicant tells Dr Lee in May she is feeling burnt out for the last two to three weeks, and she also has a shoulder problem. The applicant has never complained that she is overworked, it is about the work dynamic and communication with [FIH].
7. The active listening document completed by the applicant and the tone of [FIH]'s comments is not only patronising, it is extremely condescending to someone who has been in the job and promoted on a couple of occasions. Context and tone is everything and you see when you examine the emails that while the applicant is responding that she is trying, listening and doing what she is asked to do, [FIH]'s tone is very censorious and condescending, very civilised but very offensive.
8. The only person the applicant seems to have a problem with is [FIH].
9. The applicant sees Dr Lee on 1 July 2024 who records burn out, insomnia, low appetite, stress plus plus and she wants a rest from work for three months as soon as she tidies up her current work.
10. [FIH] in her emails just says the applicant is not listening and she is not doing the work and there are all these problems, led by a manager and not by human resources. This does not read like someone who is actually interested in keeping this employee and assisting her through this 'Focus' coaching plan. It reads like a record of she is not doing what she is being told and [FIH] is not satisfied with her not listening.
11. There are then no more sessions until November as the applicant needs to take time off work because of stress.
12. On 6 November 2024 [FIH] notes her performance is unchanged. The applicant continues to struggle with active listening although she has been off sick. There is nothing that says she has been off work and we might need to go a bit more softly, we might need to acknowledge there is a problem here and the applicant is not coping.
13. An example is where the functional lead requested to open a job requisition by copying the previous role and the applicant questioned the job requirements instead of following instructions. The respondent's submissions about how civilised and caring the manager is and the measured, courteous and appropriate tone the applicant submits is not evidenced in the coaching plan documentation.
14. A second example is the active listening connect course the applicant was directed to complete as it would help with the active listening task. The comments made by [FIH] appear to be very condescending in tone.
15. Then finally on 27 November 2024 [FIH] says the applicant's performance has declined with an example.
16. It could well be argued the applicant's work is declining because her mental state is deteriorating because she is not getting the support from the person who is micromanaging her and who really has no interest in her mental health other than some lip service in emails.
17. The performance plan has been put in place on 17 June 2024 and [FIH] is fully aware of the applicant's deteriorating mental health. This is evidenced in her email of 8 May 2024 to the applicant where she notes the applicant told her that her mental health was poor and she felt burnt out and needed to have a break, and they would see where they landed the following week with [GHA]'s promotional documents and look at some personal time off. [FIH] also encouraged the applicant to get some support from the Employee Assistance Program and to leverage the free and confidential services, and that is it.
18. The applicant submits this can only be described as lip service and this knowledge does not influence how [FIH] deals with the applicant. There is no softening, consideration, sensitivity or thoughtfulness even though the tone might be civilised. Things in writing do not usually reveal the actual interactions between people and how one person can make another person feel.
19. On 15 June 2024 [FIH] initiates the coaching plan and on 19 June 2024 [FIH] reiterates the applicant is not meeting the bar expected of a Level 5 Operations Manager and her expectations.
20. The applicant submits there is no attempt to understand how the applicant's deteriorating mental health might in fact be impacting her ability to meet the expectations set out in the coaching plan.
21. On 2 July 2024, leading up to when the applicant takes time off, [FIH] says she understands their conversations may have been challenging and she appreciates the applicant's openness and honesty, and that her health and well-being are of utmost importance to her and she wants her to know that she is here to support her in any way she can. She again refers to the Employee Assistance Program.
22. The applicant's submission is that this is not walking the talk because when you look at the coaching plan there is none of this apparent consideration, sensitivity and consideration.
23. [FIH] in this email then goes on to identify follow up actions that have not been addressed and reiterates there is no path to move from a manager to an individual contributor role where you are not meeting the expected performance requirements of a Level 5 operations manager. The applicant submits [FIH] is really grinding the applicant despite knowing she is unwell and mentally deteriorating.
24. When the applicant comes back to work on 4 November 2024 the updated and revised coaching plan is back on.
25. On an objective basis taking the documents into account and piecing it all together it is not reasonable management action.
26. There is the applicant's statement which sets out her experience of how she felt she was being micromanaged, which the evidence shows with her active listening skills constantly referred to.
27. [FIH] in her statement says she had trouble with the applicant's strong Korean accent. This is a person who has worked for the respondent for some years and she has been promoted on two occasions so clearly other people did not have a problem with it.
28. [FIH] also seemed to have an objection to the applicant speaking with another Korean person in Korean although she was not conducting the meeting in that language. The applicant explains it was a momentary thing when she had a memory lapse on remembering the name of a person in the meeting. She complied with [FIH]'s directive to only speak Korean in private settings and communicated this to other Korean speaking team members.
29. The applicant's evidence is that she has extensive professional experience using English, having served 13 years in the Australian Embassy in South Korea as a senior consular officer and system administrator.
30. [FIH] also questioned her team members about her statements in one-on-one meetings which undermined her authority. Over time her team members realised she lacked independent authority because all decisions and communications were ultimately reviewed or overridden by [FIH].
31. That is the tone of the emails during 2024 the applicant submits. [FIH] was undermining the applicant during this entire period and not taking account of her declining mental health.
32. There is no evidence of any problems before what seems to be the trigger which is [GHA]'s promotional documentation.
33. [CEB]'s statement is corroborative with her observations of the applicant's interactions with [FIH] and her mental deterioration over a period of time. [CEB] has known the applicant since about 2015 and they began to work more closely in 2021 under [FIH], which [CEB] describes as stressful.
34. [CEB] describes the issues around the promotional documentation and the applicant becoming overwhelmed, working extremely hard, and the overcomplication of the task towards the end of 2023. She felt the applicant was treated more harshly than others, particularly by [FIH] and she refers to the incident around speaking Korean.
35. [CEB] noticed the changes with the applicant becoming more isolated and more reluctant to engage with others, showing signs of being distracted and overwhelmed.
36. The applicant says Dr Anand's opinion should be accepted in preference to Dr Nagesh.
37. A very obvious error in Dr Nagesh's report is in the history as he says the applicant took three months off work from July 2024 and cited the need to have shoulder surgery as the reason for leave, and on her return to work on or around 4 October 2024 the performance appraisal was commenced. This is just completely wrong.
38. The applicant submits this is an important omission because he is not aware that the applicant went off work as a result of stress. Dr Nagesh does not have the full history.
39. It is not surprising an employee who wants to keep their job is not going to formalise time off work due to stress and mental health deterioration. The applicant says you would not draw any conclusion or inference from the fact she did not put in a Workcover certificate earlier.
40. There is a lot of evidence for Dr Anand characterising the workplace as hostile and there is plenty of evidence to make that finding. It is characterised by micromanagement, conflicting instructions, undermining of authority and no appreciation, understanding or support for the deteriorating mental health condition that is being exhibited. The clinical notes show she is already on Zoloft in July 2024.
41. Ms Kwon's report puts everything into perspective. She starts seeing the applicant in 2025 and takes a history of difficulties beginning in May 2024 following the unsuccessful promotion of [GHA]. She describes the applicant being publicly belittled. There is no reason why you would not accept the applicant's evidence.
42. Ms Kwon's diagnosis is major depressive disorder which is not consistent with the other doctors but it is potentially developing that way.
43. [FIH]'s statement has a focus on the applicant speaking Korean which she brings up several times. [FIH] says that prior to going off work in July 2024 the applicant advised her by email she was unwell and she had a doctor's certificate only indicating she had a medical condition.
44. The applicant submits it is disingenuous to suggest [FIH] did not make a connection between the applicant's health condition when on 8 May and 2 July 2024 she refers in emails to the Employee Assistance Program and she knows the applicant's mental health is deteriorating.
45. Capacity is not an issue if there is finding in favour of the applicant.

1. The respondent asks rhetorically what else could [FIH] have done, she is unable to administer psychological counselling to the applicant directly and she referred her to the Employee Assistance Program.
2. Dr Lee did not provide a certificate saying the performance plan is creating problems.
3. The applicant may not have wanted to tell the employer the truth about her mental situation and its relationship with work, and maybe that is excusable or even admirable in some circumstances, but once she fails to disclose that to the employer she cannot complain that they did not take that into account in the management of the performance plan. It is not clear that this was apparent to her employer.
4. One of the complaints is the applicant was micromanaged but that is the whole point of the management plan.
5. The applicant appears to have been paid salary for three months to August 2025 during the currency of the claim. If the applicant is successful that will need to be taken into account with credit given to the respondent for payments made.

Was the applicant's psychological injury wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal and/or discipline

"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. To establish a defence under s 11A(1) the respondent carries the onus to prove on the balance of probabilities[9] the applicant's accepted psychological injury was wholly or predominantly caused by action taken by or on its behalf with respect to performance appraisal and/or discipline, and that the action was reasonable.
2. Performance appraisal is a formal established process involving various steps in which the parties are knowingly engaged, and it is not an extended and continuing assessment but a recognised procedure through which the parties move in order to establish an employee's efficiency and performance.[10]
3. The formal performance appraisal process commenced on 17 June 2024 with the implementation of the 'Focus' plan.
4. Sackville AJA said in Northern NSW Local Health Network v Heggie however that a broad view is to be taken of the expression "action with respect to discipline".[11]
5. Discipline has a primary meaning of learning by instruction, the maintenance of that learning by training, exercise or repetition, and the communication of a complaint that could lead to disciplinary action with any subsequent investigation.[12]
6. In Kushwaha Neilson J found the process adopted by the respondent of drawing the applicant's unsatisfactory work performance to her attention, asking her to improve that performance, suggesting ways to achieve that, and offering assistance and or training was 'discipline' in the wider sense.[13] In Milovanovic reprimands about standard of work were held to come within the primary meaning of "discipline".[14]
7. While Dr Nagesh refers to performance appraisal and Dr Anand refers to disciplinary action, performance appraisal falls within a broad definition of discipline. I accept the respondent's submission that the respondent's action is with respect to performance appraisal and discipline.

1. To make out its defence the respondent must first establish its action with respect to performance appraisal and discipline wholly or predominantly caused the applicant's injury.
2. The phrase 'predominantly caused' has been held to mean "mainly or principally caused".[15] Causation is determined by applying the test described in Kooragang Cement Ltd v Bates,[16] and where there are a number of potentially causative factors the question of causation must be addressed by medical evidence.[17]
3. Whether actions are the whole or predominant cause of the applicant's psychological injury is a question of fact and degree and involves consideration of all the factors that produced her condition.[18]
4. "Wholly" and "predominantly" are separate concepts and a finding of one or the other needs to be considered.[19] There can only be one whole or predominant cause. Determining whether an action is a predominant cause requires weighing the evidence of the effect of each incident on the applicant's psyche and the consequences that flowed from the incident.[20]
5. 'Action' with respect to 'discipline' was considered by Spigelman CJ in Sinclair[21] as usually involving a series of steps which can cumulatively have psychological effects, and as it will not often be possible to isolate the effect of a single step, the whole or predominant cause is the entirety of the conduct with respect to discipline.
6. The action relied on by the respondent is the formal performance review process with the commencement of the 'Focus' plan on 17 June 2024, although the genesis of the problem the respondent submits seems to go back to at least October 2023 with the preparation of [GHA]'s promotional documentation.
7. Dr Nagesh's opinion is that the whole or predominant cause of the applicant's psychological condition relates to action taken with respect to performance appraisal starting with the 'Focus' plan in June 2024.
8. I accept Dr Nagesh's opinion although I accept the applicant's evidence that the relevant action began in May 2024.
9. The applicant's evidence is that the cause of her psychological injury was her interactions and communication with [FIH] and the change in their relationship from about May 2024 onwards, with the trigger appearing to be the promotional documentation.
10. Dr Lee and Ms Kwon refer to difficulties at work that reportedly began in May 2024.[22] Dr Lee records on 10 May 2024 the applicant felt burn out from two to three weeks ago due to workplace dynamic/communication, a higher expectation from managers and she is anxious to open emails in the morning.[23]
11. I do not accept Dr Anand's opinion that the predominant factors contributing to the applicant's psychological injury are bullying and harassment by [FIH] from the end of December 2023 and over a prolonged period.
12. Dr Anand refers to factors such as conflicting instructions. There is support for Dr Anand's opinion in [CEB]'s evidence that at the end of 2023 the applicant cried to her about how stressed she was and she had received conflicting instructions. Another possible factor is that the applicant was instructed not to speak Korean by [FIH] on 8 February 2024, also noted by [CEB].
13. These may have been factors contributing to the applicant's psychological condition prior to May 2024, however these factors did not cause the applicant's injury. While not decisive,[24] the earliest contemporaneous record of the applicant's stress is made by Dr Lee in May 2024.
14. The factors Dr Anand refers to include;

(a) criticism in May 2024 of the promotional documentation followed by micromanaging;

(b) requests for increased documentation and scrutiny of interactions;

(c) misunderstanding regarding speaking Korean in a team meeting on

28 May 2024;

(d) criticism of the applicant's communication, emails and verbal skills, and

(e) a hostile working environment caused by micromanagement, undermining of the applicant's authority and conflicting instructions, combined with the lack of support from human resources.

1. These factors mainly fall within the respondent's action with respect to performance appraisal and discipline from May 2024.
2. I prefer Dr Nagesh's opinion on the predominant cause of the applicant's psychological injury.
3. I do not accept the applicant's submission that Dr Nagesh's opinion should be given less weight as he did not have the applicant's full history, with reference to the applicant's time away from work between July and October 2024 being due to requiring shoulder surgery, and that he was not aware she was away from work due to stress.
4. Dr Nagesh was provided with the clinical records of Dr Lee which include an entry on

10 May 2024 regarding the applicant's burn out, Dr Lee's certificate of capacity of

24 December 2024 confirming the applicant was first seen for her psychological injury on 10 May 2024,[25] Dr Lee's response to a questionnaire of 9 January 2025 referring to the applicant's psychological symptoms becoming significant around April 2024,[26] and the applicant's statement of 15 January 2025 in which she says her right shoulder injury was connected with the stress and tension she was feeling at work at the time, and that she tried to hide the effect her work situation was having on her.[27] 5. Dr Nagesh notes that when the applicant was off work she consulted her general practitioner, she was prescribed anti-depressant medication and she was referred to a psychologist.

Dr Nagesh says the applicant took three months off from July 2024 "and cited the need for shoulder surgery as the reason for leave."[28] 6. Following consideration of the medical evidence and weighing all the evidence I am satisfied the predominant cause of the applicant's psychological condition with deemed date of injury 3 December 2024 is the respondent's action with respect to performance appraisal and discipline commencing in May 2024.

1. As the applicant's psychological injury was wholly or predominantly caused by action with respect to performance appraisal and discipline, in order to make out its defence the respondent is next required to establish its action was "reasonable".
2. Sackville AJA in Heggie confirms the onus is on the respondent to establish reasonableness, the question of reasonableness is one of fact, the test is objective, and it requires the rights of employees to be assessed against the objectives of the employer, attended in all circumstances by a question of fairness.[29]
3. The reasonableness of action that caused the applicant's psychological condition is to be determined by the facts that were known to the respondent at the time, or that could have been ascertained by reasonably diligent inquiries.[30]
4. Any specific blemish or flaw in the disciplinary process will not mean the whole of the action is unreasonable. In Sinclair Spigelman CJ said "[i]n my opinion, a course of conduct may still be "reasonable action", even if particular steps are not."[31]
5. Truss CCJ said in Ivanisevic "[i]n 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 effected."[32]
6. On a consideration of the entire process from May 2024 I find the respondent's action with respect to performance appraisal and discipline was unreasonable for the reasons below.
7. I accept the applicant's submission that action with respect to performance appraisal and discipline such as the 'Focus' plan, while superficially appearing reasonable, was not reasonable in all of the circumstances.
8. The active listening component of the 'Focus' plan involved the applicant providing five key recommendations in a one-page summary on how the applicant could practice active listening and demonstrate these skills as a manager.[33]
9. The applicant's statement evidence is that at no point was she informed this task required her to incorporate her own experiences, role-specific applications or personal recommendations. The instruction she received was to review the provided training material and produce a one-page summary.[34]
10. I accept the applicant's submission that the comments made on the summary the applicant prepared appear condescending in tone.[35] The comments are made in the context of the applicant having been supervised by [FIH] from March 2021 and promoted to a manager role in October 2022.
11. The respondent's conduct regarding the applicant's preparation of [GHA]'s promotional documentation also appears unreasonable.
12. The applicant describes the respondent's promotion process as being inherently rigorous, and dependent on multiple factors beyond a single manager's input.
13. [FIH] as the applicant's direct manager had responsibility for training and supporting the applicant including in the preparation of this documentation, particularly given this was the first time she had undertaken this task, and [FIH] says she did so over several months.

[FIH] was aware the applicant prepared and reviewed multiple versions of the material before the final version was confirmed. 14. When the promotion was unsuccessful [FIH] discussed this with the applicant and recalls she was visibly upset. [FIH] set out why this outcome was the responsibility of the applicant despite the feedback and advice she provided to her in late 2023 and early 2024, and says the applicant was provided with all appropriate levels of support and advice. This is difficult to reconcile with the outcome and the criticism made. 15. [FIH] proceeded in May 2024 to outline and reiterate matters around the promotional documentation, and this continued throughout the 'Focus' plan process until December 2024. 16. The applicant was asked as part of the plan to conduct a post-review of the promotional document including thoroughly analysing it and identifying areas needing improvement, and writing a summary of her findings and recommendations to avoid similar mistakes in the future. She was to review and update it and address any lessons learned from the rejected document and then re-write it for successful submission.[36] 17. [CEB]'s evidence is that in contrast to the applicant's experience, in her case [FIH] reviewed the final version of her draft promotional document which was accepted with minimal feedback. 18. I do not accept the respondent's submission that it is not clear the applicant's psychological condition was apparent to the respondent. [FIH] was aware of the applicant's physical and psychological conditions by May 2024. 19. The applicant's statement evidence is that she consistently informed [FIH] in one-on-one meetings before taking leave in July 2024 that her health was deteriorating due to work-related stress.[37] I accept the applicant's evidence in this regard. 20. [FIH] states she was aware of the applicant's right shoulder injury in about 2024 before she was placed on the 'Focus' plan, although the applicant made no reference to the injury being either work related or stress related. The doctor's certificate of 3 July 2024 only indicated she had a "medical condition" and there was no connection made between her health issues and her work at that time. 21. This does not accord with [FIH]'s email to the applicant on 8 May 2024 where she refers to being told by the applicant that her "mental health" was poor, she felt burnt out and needed to have a break. [FIH] also refers to the shoulder injury in that email.[38]

[FIH] provided the applicant with a link to the Employee Assistance Program in this email and again on 2 July 2024. 22. It is difficult to align the content of [FIH]'s emails that refer to prioritising the applicant's health and well-being[39] with [FIH]'s awareness of the applicant's poor mental health in May 2024, and noting she was aware of visits to an emergency department in October and December 2024. It appears as the applicant submits that little or no account was taken of the applicant's declining health during the 'Focus' plan. 23. The applicant submits that after working for the respondent for nine years, and noting two promotions during the time [FIH] was her manager, the only person she seems to have had a problem with is [FIH]. 24. The respondent submits the emails between the applicant and [FIH] provide a contemporaneous record of discussions on the 'Focus' plan, and were measured, courteous and thoughtful. I accept the exchange of emails appears reasonable however I do not find the emails establish the work environment was not hostile. I accept the applicant's submission that the emails do not convey the tone or the context of the emails. 25. The applicant's statement evidence is that from about June 2024 she found [FIH] often criticised her communication skills, stating her verbal skills and writing in emails were not clear. [FIH] raised these issues almost every day in some form from that time the applicant says. The applicant's statement evidence is that communication issues had never been previously raised with her during her employment with the respondent. 26. I note the applicant originally had primary responsibility to support the respondent's Korean queue for customers requesting assistance, and she continued to oversee the Korean queue. The applicant notes the respondent's commitment to fostering a diverse and inclusive workforce. 27. [FIH] appears to have had difficulty with the applicant speaking Korean and with her Korean accent. 28. [FIH] says;

"I would also make the observation that [EHM] does have certain limitations in terms of her verbal and written English skills. She has a strong Korean accent and is at times hard to understand. Her written communications can also be unclear at times."[40]

1. [FIH] raised these concerns with her direct manager in early 2024. [FIH] also refers to the meeting on 28 May 2024 when she was told the applicant had spoken in Korean, for which she says she gave the applicant the benefit of the doubt.
2. In November 2023 [FIH] says she personally witnessed the applicant speaking Korean at a management meeting which she felt was exclusionary and inappropriate, and [FIH] also spoke to her direct manager about her concerns at that time.
3. In the applicant's second statement she refers to [FIH] instructing her on

8 February 2024 not to speak Korean in meetings or shared office spaces including the kitchen, and that any Korean communication should occur only in a private, booked room. The applicant complied. 4. [CEB] says that in early 2024 the applicant explained [FIH] had instructed her not to speak Korean at work. [CEB] notes she regularly spoke Korean at work and was never reprimanded for it, and this inconsistency made it seem as though the applicant was being unfairly singled out. 5. [FIH]'s focus on the applicant's communication skills during the action with respect to performance appraisal and discipline appears unreasonable in all of the circumstances. 6. Given the respondent's actions discussed above, I accept the applicant's submission that while the exchange of emails between the applicant and [FIH] appear measured and courteous, they are written in the context of the respondent not actually being concerned with improving the applicant's performance from May 2024. 7. I do not accept the submission made by the respondent that a catalogue of complaints emerges once the applicant decides she wants a workers compensation certificate in December 2024, noting she had previously approached the respondent's human resources staff on at least two occasions. 8. Weighing the relevant factors in the entire process and balancing the circumstances and health of the applicant as against the objectives and business requirements of the respondent, I am persuaded the respondent's action with respect to performance appraisal and discipline was unreasonable. 9. Accordingly I find the respondent has failed to discharge its onus to establish the applicant's accepted psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on its behalf with respect to performance appraisal and discipline, and that the defence under s 11A(1) of the 1987 Act is not made out.

Is the applicant entitled to payment of weekly compensation from 20 March 2025

1. Having found in the applicant's favour in relation to liability the applicant is entitled to the payment of weekly compensation from 20 March 2025.
2. The certificates of capacity certify the applicant as having no capacity for work from

24 December 2024 to 20 June 2025. The medical evidence of Dr Anand is that the applicant's extent of incapacity for employment is substantial, evidenced by her prolonged absence from work and the severity of her symptoms, and Dr Nagesh says she is totally incapacitated for work until her symptoms resolve. 3. The applicant's PIAWE amount is agreed at $2,505.79. 4. The respondent's submission is that the applicant appears to have received payment of her salary for three months to August 2025. The respondent is therefore to have credit for any payments made. 5. The respondent will be ordered to pay the applicant weekly compensation from

20 March 2025 to date and continuing with credit for payments made, at the agreed PIAWE amount of $2,505.79 subject to indexation, pursuant to ss 36 and 37 of the 1987 Act.

Is the applicant entitled to the payment of medical or related expenses

1. Having found for the applicant in relation to liability, it follows there will also be an order that the respondent is to pay the applicant's reasonably necessary medical or treatment expenses arising from her psychological injury pursuant to s 60 of the 1987 Act.
2. The applicant's schedule of past medical expenses totals $907.35.
3. There will be a general order made that the respondent is to pay the applicant's reasonably necessary medical or related expenses on production of accounts, receipts or Medicare Notice of Charge.

1. The respondent has failed to discharge its onus to establish the applicant's accepted psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on its behalf with respect to performance appraisal and discipline, and the defence under s 11A(1) of the 1987 Act is not made out.
2. The respondent is to pay the applicant weekly compensation from 20 March 2025 to date and continuing at PIAWE of $2,505.79 subject to indexation, pursuant to ss 36 and 37 of the 1987 Act, with credit for payments made.
3. The respondent is to pay the applicant's reasonably necessary medical or treatment expenses arising from her psychological injury pursuant to s 60 of the 1987 Act.

[8] [2010] NSWWCCPD 76.

[9] Department of Education and Training v Sinclair [2005] NSWCA 465 (Sinclair).

[10] Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998, unreported, Dunn v Department of Education and Training [2000] NSWCC 11; (2000) 19 NSWCCR 475.

[11] Northern NSW Local Health Network v Heggie [2013] NSWCA 255 at [59] (Heggie).

[12] Kushwaha v Queanbeyan City Council [2002] NSWCC 25; (2002) 23 NSWCCR at [152] (Kushwaha).

[13] Kushwaha v Queanbeyan City Council [2002] NSWCC 25; (2002) 23 NSWCCR at [154].

[14] ISS Property Services Pty Ltd v Milovanovic [2009] NSWCCPD 27 at [83].

[15] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130, McCarthy v Department of Corrective Services [2010] NSWCCPD 27 at [157].

[16] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.

[17] Hamad v Q Catering Limited [2017] NSWWCCPD 6.

[18] Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181.

[19] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.

[20] Insurance Australia Group Services Pty Limited v Outram [2019] NSWWCCPD 44.

[21] [2005] NSWCA 465 at [96].

[24] Baker v Southern Metropolitan Cemeteries Trust [2015] NSWWCCPD 56 at [81].

[29] Heggie at [52] - [55] and [103].

[31] [2005] NSWCA 465 at [97].

[32] Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998).