Patricia Smith v Industrial Relations Secretary in respect of Local Land Services

Issue for determination

1. As the respondent set out in his Outline of Submissions, s 241(1) of the WC Act has been described as a gateway provision for Part 8 of the WC Act. It is so described because the entitlement of a person to seek any of the remedies pursuant to Part 8 depends on that person satisfying the requirements of s 241(1). The section provides: 241 Application to employer for reinstatement of dismissed injured worker (1) If an injured worker is dismissed because he or she is not fit for employment as a result of the injury received, the worker may apply to the employer for reinstatement to employment of a kind specified in the application.
2. Section 240(2) provides a definition of an injured worker, being: For the purposes of this Part, an injured worker is a worker who receives an injury for which the worker is entitled to receive compensation under this Act or the Workers' Compensation (Dust Diseases) Act 1942.
3. The general purpose of Part 8, and the policy reason for its existence, is readily apparent. This is especially so when the WC Act is considered in the context of other legislation such as the Work Health and Safety Act 2011.
4. The overall work health and safety regime is designed to minimise workplace injuries, rehabilitate workers who are injured, reduce the financial burden of injuries on workers and maximise the extent to which injured workers return to their pre-injury duties.
5. To this overall structure, Part 8 of the WC Act provides a mechanism for the return to work of injured workers, and thus enhances rehabilitation, and the reduction of financial burden on those workers.

Onus on former employer, and reason

1. Importantly, s 244 of the WC Act provides: 244 Presumption as to reason for dismissal (1) In proceedings for a reinstatement order under this Part it is to be presumed that the injured worker was dismissed because he or she was not fit for employment as a result of the injury received. (2) That presumption is rebutted if the employer satisfies the Industrial Relations Commission that the injury was not a substantial and operative cause of the dismissal of the worker.
2. It was accepted by the respondent, and plain on the face of s 244 of the WC Act, that the question before the Commission should be resolved in favour of the applicant unless the respondent can discharge the onus set out in s 244(2).
3. A respondent is not to be held to a standard which removes all doubt, or indeed all reasonable doubt, but the Commission must be positively satisfied, on the balance of probabilities, of the respondent's case. Doubt short of that positive satisfaction must be resolved in favour of an applicant.
4. This aspect of the gateway was addressed in detail by the parties. The submissions of the parties were respectively that a compensable injury was the totality of the reason for the applicant's dismissal or had nothing to do the applicant's dismissal.
5. The test set out in s 244(2) allows for a more nuanced assessment of the reasons for an employee's dismissal than the submissions of the parties would suggest. Section 244(2) does not require that the compensable injury have made no contribution to the reasons for dismissal. The employer may close the gateway by satisfying the Commission that the compensable injury was not "a substantial and operative cause" of the dismissal.
6. It is plain on the face of the section, including from the use of the word "a", that the legislature was alive to the possibility that an employee might be dismissed for more than one reason. That said, having two reasons for a dismissal, one of which was clearly not related to a compensable injury would not be a sufficient basis to discharge the employer's onus. Even if it was clear that an employer dismissed an employee in part for a reason unrelated to a compensable injury, the employer still carries the onus to satisfy the Commission that it did not have a second reason, related to a compensable injury, which was "a substantial and operative cause" of the dismissal.
7. An employer might discharge the onus by satisfying the Commission that a compensable injury formed no part of the cause for the dismissal, or that the compensable injury was not "a substantial and operative cause" of the dismissal.

Potter decision

1. In Potter v Industrial Relations Secretary in respect of the Department of Regional New South Wales [2022] NSWIRComm 1077, Webster C addressed issues arising when a claim for workers compensation stands declined as at the date of an employee's dismissal, but where that claim is later accepted as valid.
2. In Potter, an employee had been dismissed for being unfit for employment. Prior to her dismissal, the employee had submitted a worker's compensation claim, but at the time of the employee's dismissal that claim had been declined by the insurer. That claim was later upheld, and the employee became entitled to compensation for the injury. That injury was, it was accepted, the cause of the employee's unfitness for work.
3. Because the unfitness for employment arose from an injury which was ultimately held to be compensable, the employer failed to discharge the onus pursuant to s 244(2).
4. This aspect of the decision in Potter was not challenged on appeal, and the respondent in this matter did not submit that this aspect of Potter was wrongly decided. The Commission can see no basis to impugn the outcome from Potter in this respect.
5. In the present case, it is clear to the Commission that there are important factual differences from Potter. The applicant in the present case has both a work-related injury, which has caused her some level of incapacity, and a non-work-related injury, also causing some level of incapacity.
6. It is the applicant's case that her dismissal was for the work-related injury, and the respondent's case that it was for the non-work-related illness.

Bindaree Beef

1. Both parties took the Commission to the decision of Court of Appeal in Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350. The submissions of the parties, although expressed as being in opposition to each other, did not fundamentally differ. The following passages from the decision of Bathurst CJ capture the essence of the parties' submissions: "[50] The presumption in s 244(1) has the effect of placing the onus on the employer to demonstrate that the reason for dismissal was not because of unfitness for employment as a result of the injury received. Section 244(2) provides the mechanism by which that presumption can be rebutted. … [52] The reason for the presumption, in my opinion, is to overcome the difficulty a worker might otherwise have in establishing that the cause of dismissal was unfitness for employment as a result of the injury. To avoid that difficulty the onus is on the employer to prove that the dismissal was not connected with the worker's injury in the sense described in s 244(2). In those circumstances, it would be a misconstruction of the Act to conclude that the actual reasons of the employer for dismissal of the worker should not be taken into account in determining whether or not the presumption is rebutted. The question in effect is why the employer dismissed the worker. That can only be considered in the context of the actual reasons for doing so. [53] Neither the words "subjective" nor "objective" are used in this section. As was stated by Gummow and Hayne JJ in Barclay at [121], to consider sections such as s 244(2) by reference to either a subjective or objective criteria is to "adopt an illusory frame of reference". The question of whether the injury was a substantial and operative cause of the worker's dismissal is a question of fact to be decided by reference to all the circumstances including the employer's evidence as to such cause. [54] I do not think that the change in the wording of the presumption from "for reasons not solely or principally related to the injury" to the phrase "a substantial and operative cause" affects the conclusion that the inquiry is directed to why the worker was dismissed. This inquiry inevitably involves consideration of the reasons of the decision-maker."
2. The task for Commission is to determine the respondent's actual reasons. This will require the Commission to consider the reasons the respondent gave, the evidence it brings to the Commission now, and whether, in the totality of the circumstances, that the Commission is persuaded a compensable workplace injury was not a substantial and operative cause of the dismissal.
3. The Commission accepts the applicant's submissions that the Commission would consider the credulity and plausibility of the respondent's case as to the submitted reasons for the dismissal.

History of applicant's workplace injuries

1. The respondent's Outline of Submissions set out a summary of the applicant's work related injuries which lead to her entitlement to compensation: E. THE INJURIES ENTITLING THE APPLICANT TO COMPENSATION … July 2017 Claim 16. … The Applicant lodged a workers' compensation claim on 27 July 2017 (July 2017 Claim), regarding an injury alleged to have occurred nearly two months earlier on 1 June 2017. This injury is not the subject of the reinstatement application. 17. The certificate of capacity relating to this injury stated that the Applicant had "anxiety with panic attack" and referred her to obtain treatment from a psychologist, Jessica Stanford. Ms Stanford identified at the time that the Applicant had "prior mental health issues" and had a "recent increase in symptoms due to an incident at work". Ms Stanford said that the Applicant had reported having "a history of Post-Natal Depression - Anxiety" and reported symptoms consistent with "Adjustment Disorder with anxiety" consistent with DSM-V.5 18. The Respondent's insurer declined liability for this alleged injury in November 2017. The Applicant appealed this to the Workers Compensation Commission and the July 2017 Claim was resolved by consent orders on 29 May 2019, which provide for the Applicant to receive weekly benefits for a closed period between 1 June 2017 to 28 December 2017 and payment of expenses up to a fixed amount. … July 2019 Claim 21. The Applicant lodged a workers' compensation claim on 18 July 2019 (July 2019 Claim), regarding an injury alleged to have occurred in a Performance Development Plan (PDP) meeting with her manager, Ms Vanessa Keyzer, on 17 July 2019. PDPs (and the associated meeting to discuss them) are standard career development documents completed by all LLS employees. At this time, the Applicant was working two days per week and following the PDP meeting (which was held early in the morning) the Applicant was unable to work for the remainder of the day. The certificate of capacity relating to this injury stated that the Applicant had "reactive anxiety" and a "flare in her symptoms" following her "returning to work after hospitalisation for her mental health condition". 22. The Respondent's insurer declined liability for this alleged injury on 2 September 2019 (with the declinature effective 12 September 2019) and it remained declined at the time of her dismissal. After her dismissal, the Applicant appealed this declinature, as explained below at paragraphs 29 and 30. … November 2019 Claim 25. The Applicant lodged another workers' compensation claim on 15 November 2019 (November 2019 Claim), regarding an injury alleged to have occurred on 7 November 2019 when she was provided with a letter initiating her medical retirement. The Respondent's insurer did not provisionally accept the November 2019 Claim and the Applicant did not receive provisional weekly payments. Ultimately the Respondent's insurer declined liability on 21 November 2019. However, the Respondent's insurer agreed to reimburse the Applicant for the amount of $215.00 for 2 sessions with her psychologist on an ex gratia basis and as a gesture of goodwill. The Applicant did not receive any workers' compensation payments in relation to the November 2019 Claim prior to her dismissal on 22 January 2020. 26. The Applicant also refers to incident notifications lodged on 22 and 23 November 2019 (Other November 2019 Incidents), regarding injuries alleged to have occurred as a result of her November 2019 Claim being declined and the provision of a show cause letter from Mr Kelly respectively. 27. Although no separate workers compensation claims were made by the Applicant in respect of the Other November 2019 Incidents, the Respondent accepts that its insurer considered the Other November 2019 Incidents as part of the November 2019 Claim. On 17 December 2019, liability for the Other November 2019 Incidents was declined by the Respondent's insurer as part of a review of the November 2019 Claim declinature that was requested by the Applicant. … 29. After her dismissal, the Applicant commenced proceedings to appeal the declinature of the July 2019 Claim and November 2019 Claim in the Workers Compensation Commission on three occasions in July 2020, February 2021, and May 2021. The first two proceedings were discontinued by the Applicant. The third proceeding, commenced 16 months after the Applicant's dismissal, resulted in the July 2019 Claim and November 2019 Claim being resolved by consent orders on 9 August 2021 (amended on 25 November 2021), which provide for the Applicant to receive weekly benefits for a closed period between 13 September 2019 to 19 June 2020, payment of medical expenses up to a fixed amount, and credit for any sick leave paid during the period in which the Applicant was now entitled to receive weekly benefits. [Emphasis in original. Footnotes omitted.]
2. For completeness the Commission observes that: 1. the applicant made submissions in response to the those set out above, but the Commission considers her submissions did not relevantly dispute the substance of the respondent's summary, and the Commission accepts the respondent's summary as correct; and 2. if not otherwise apparent from what is set out elsewhere in these reasons for decision, the correct analysis of the foregoing summary is that at the time of her dismissal, the applicant was an injured worker as result of injuries which were the subject of the July 2019 Claim and the November 2019 Claim.
3. The foregoing summary does not address in detail the applicant's non-work-related health issues, albeit these are referenced in paragraphs 17 and 21 of the respondent's Outline of Submissions. The applicant's submissions as to her non-work-related health issues is set out in the next section. The respondent's case as to applicant's non-work-related health issues are set out below under Case for the Respondent.

Case for the applicant

1. The applicant's evidence was that: 1. she had worked for the respondent and its predecessors since 2005; 2. she had produced a high standard of work and had an excellent performance record; 3. she was diagnosed with anxiety on 1 June 2017 and has been under continuous medical care for her condition since this initial diagnosis; 4. as a result of her anxiety she has a disability; 5. because of her disability she has an entitlement which would require the respondent to provide her with "reasonable adjustments" in the form of, inter alia, various changes to her work environment, and to the way in which her work was structured; 6. between her diagnosis and her dismissal from the respondent she made numerous, and indeed ongoing requests for adjustments to accommodate her disability, but these were not resolved to her satisfaction; 7. on 27 July 2017 she made a workers compensation claim for a psychological injury. This was eventually resolved by consent orders in May 2019 with payment to her of weekly compensation for the period 1 June 2017 to 28 December 2017, and medical expenses continuing until May 2019; 8. on 17 July 2019 she made a claim for workers compensation for psychological injury for which a provisional acceptance resulted in provisional compensation payments. The claim was subsequently declined on 12 September 2019, and ultimately closed by consent orders on 9 August 2021 including weekly compensation payment for the period from 13 September 2019 to 9 June 2020, and medical expense reimbursements; 9. on 15 November 2019 she made a claim for workers compensation for a psychological injury sustained on 7 November 2019. A further claim was made on 23 November 2019 in relation to a further exacerbation of this psychological condition. These claims were consolidated by the insurer. These claims related to injuries suffered by the applicant on receiving letters from the respondent relating to the proposed medical retirement of the applicant. The claims were provisionally accepted, but then declined. After her dismissal, through proceedings in the Workers Compensation Commission, these claims, as with the July 2019 claim, were resolved by consent through weekly compensation payments for the same period as the July 2019 Claim; 10. she had not been afforded procedural fairness in the termination of her employment on 22 January 2020, including by the respondent not following its Non-Work Procedures. Further, she was denied procedural fairness because employees of the respondent managing the processes which led to her dismissal were employees against whom she had made complaints concerning their conduct towards her; 11. the respondent failed in its duty of care to provide a safe workplace for her when it sent its letters proposing her dismissal without undertaking an appropriately detailed risk assessment; and 12. the dismissal continued the discrimination and bullying behaviours which she had experienced whilst employed by the respondent.

The applicant's submissions

1. The applicant's final submissions extended to 90 numbered paragraphs setting out her case at length. Those submissions incorporated extracts from other documents, particularly evidence given before the Commission, but unfortunately did so in a way that was difficult to follow.
2. The applicant also filed submissions in response to the respondent's final submissions extending to 231 numbered paragraphs. These submissions also incorporated extracts from other documents, including the respondent's final submissions. Unfortunately, these were even more difficult to follow as they did not readily differentiate between the applicant's submissions and the documents which they referenced.
3. During oral submissions there was some progress made in structuring the applicant's case.
4. The essence of the applicant's case, on the relevant question, is that events occurring after her dismissal have the effect that, at the time of her dismissal, she was an injured worker and that she was dismissed because of that injury/those injuries.
5. The applicant submits that the decision in Potter is on all fours with her circumstances. She submitted that, as was the essence of the decision Potter, it would defeat the purpose of s 241 of the WC Act if the respondent was able to dismiss her in circumstances where a claim for compensation was initially declined but on appeal was upheld.
6. The Commission understands the applicant's submission to be that, 1. as a matter of law, any determination of whether an employee is an injured worker within the meaning of the WH Act would be artificially determined if it relied on the state of a claim at a specific point in time. Whether an employee is an injured worker can only be properly understood when a final determination of the claim has been made, which may involve an exchange of correspondence between worker and insurer, or proceed as in this case to a Workers Compensation Commission appeal; 2. any unfitness by her for work was a result of her compensable injury; and 3. the case of the respondent that her underlying health condition and her compensable injury can be, or were in the respondent's mind, separable is artificial and unpersuasive.

Case for the respondent

1. The respondent led evidence from: 1. Rob Kelly, Executive Director, Regional Operations of Local Land Services, who was the decision-maker in relation to the applicant's dismissal; 2. Sharon Elliott, General Manager of Greater Sydney Local Land Services, in charge of the office in which the applicant was employed; 3. Jo Wong, Manager - Health & Wellbeing at the Department of Regional New South Wales, who was responsible for managing work-related and non-work-related injuries, including for the respondent; and 4. Amanda Fahy, Health and Wellbeing Partner at the Department of Regional New South Wales, who reported to Jo Wong and who was responsible for managing non-work-related injuries, including for the respondent.
2. Mr Kelly's evidence concerned the factors which he said he took into account in determining to dismiss the applicant. It was clear that Mr Kelly relied almost entirely on advice given to him by intermediate managers. There was some direct correspondence from the applicant which was available to Mr Kelly, but it is clear that he had no direct experience of the applicant's conduct or work performance.
3. Further details of Mr Kelly's evidence are considered below.
4. Ms Faye and Ms Wong gave evidence of the extensive efforts made by the respondent to manage both work-related and non-work-related absences of the applicant, and numerous plans for the applicant to resume work after absences, including less than full-time work, graduated returns to more working hours and of extensive interactions with the applicant and various medical practitioners as to her fitness for work.
5. Ms Elliott's evidence was extensive and covered ongoing interactions with the applicant and the applicant's line manager as to the applicant's fitness for work.
6. Specifically, Ms Elliott gave evidence that: 1. the applicant consumed management time significantly out of proportion to that consumed by any other employee; 2. that the applicant sought what she described as "reasonable adjustments" which included increased management time, including through enhanced supervision. Those adjustments granted meant that the applicant was not operating independently at the level at which she was employed; 3. two line-managers of the applicant had been so overwhelmed by the time taken to be her manager, and the intensity with which she responded to their communications with her, that they had requested the applicant be managed by another person; 4. that by December 2018 the respondent was considering dismissing the applicant because it could not provide a safe workplace for the applicant's managers, because the applicant's illness meant that she required a level of support that her managers were not able to provide and most fundamentally because the applicant was not performing the inherent requirements of her job; 5. subsequent to this consideration the applicant continued to consume a significantly disproportionate amount of her manager's time, despite working only two days per week; 6. that on 17 July 2019, when her manager met with the applicant for her performance development plan meeting, an annual meeting for each employee, the meeting dissolved without completion of the PDP because of the applicant's single focus on "reasonable adjustments" because of her mental health condition; and 7. she provided Mr Kelly with various documents, with verbal support for those documents, and ongoing administrative support as he considered termination of the applicant.

The respondent's submissions

1. The respondent's case at a high level, was set out in his Outline of Submissions as: "Surrounding circumstances regarding the Applicant's mental incapacity 68. … the surrounding circumstances demonstrate that, based on Ms Elliott's observations of the Applicant's work and the objective material, there is overwhelming evidence that the Applicant could not perform the inherent requirements of her role because of her non-work related mental illness rather than any of the alleged work-related injuries, which amounted to exacerbations of that mental illness, and therefore support Mr Kelly's evidence regarding the view that he formed. 69. Specifically: (a) the Applicant developed a non-work related mental illness between 2016 and 1 June 2017, which continued to affect her ability to perform her role throughout the remainder of her employment with Greater Sydney LLS; (b) each of the injuries for which the Applicant was entitled to workers' compensation were exacerbations of that non-work related mental illness, for which she was entitled to compensation for limited closed periods; (c) the Applicant demonstrated an inability to perform her role outside those closed periods during which she was entitled to workers' compensation; and (d) Mr Kelly's reasons for dismissal related to the Applicant's inability to perform her role outside the closed periods, and therefore the mental incapacity for which the Applicant was dismissed could only be the pre-existing, non-work related mental illness rather than any of the compensable exacerbations of that illness."
2. The more detailed case for the respondent as to the applicant's non-work-related illness was, as set out in his Outline of Submissions, that: The Applicant's non-work related mental illness 71. The medical evidence objectively supports the position that the Applicant suffered from a non-work related mental illness after she returned from parental leave following the birth of her second child. … 74. The Applicant's evidence of the perception of her condition and her observations about her work performance supports Dr Chow's opinion that the Applicant has "some underlying anxious personality traits" and "personality vulnerability with obsession, rigidity and perfectionism". In cross-examination, the Applicant said that she requested a review of Dr Chow's Second Report because she had concerns with Dr Chow's medical opinion. However, the Applicant's request for review of Dr Chow's Second Report does not in fact raise any disagreement regarding Dr Chow's diagnosis or opinion. 75. During cross-examination the Applicant accepted that perfectionism was part of her personality, and she held herself to high standards. For example: "I definitely have a little bit of perfectionism in my natural personality ... perfectionism is probably why I got first class honours, because I did things thoroughly." 76. While the Applicant confirmed in cross-examination that she felt some anxiety following the birth of her first child in 2013, it is not in dispute that there were no issues which arose regarding the Applicant's ability to perform her role during her attendance at work following the birth of her first child between 2014 and July 2015 (for five days per fortnight), rather the issues arose after the birth of her second child in 2015. The Applicant returned to work following the birth of her second child in or around March 2016. 77. A Mental Health Care Plan developed by Dr Catherine Bailey, the Applicant's general practitioner, on 1 June 2017 states that the Applicant's parental leave (being the parental leave after the birth of her second child in 2015) and move to part-time work "has affected her ability to perform to her standards". 78. The Applicant's evidence is also that she suffered symptoms of anxiety or postnatal anxiety for at least ten weeks following the birth of her second child in 2015. The Applicant gave evidence in cross-examination where she conceded that symptoms of anxiety and adjustment disorder emerged almost immediately after her return to work in March 2016. In particular, the Applicant gave evidence that, between March 2016 and 1 June 2017 (notably a period totally (sic) 16 months prior to her first alleged work-related injury), she: (a) experienced anxiety, including her hands trembling and crying, during her drive in to the office each morning and while at work; (b) had at least three panic attacks while at work - one in May 2016 and two in approximately April or May 2017; (c) was overreacting to small things and (d) suffered from insomnia. 79. The Applicant also recalls struggling with confidence in performing her role during this period in 2016 to 2017, due to a restructure of Greater Sydney LLS. 80. However, the restructure of Greater Sydney LLS occurred during the Applicant's first period of parental leave from 2013 to 2014. As is noted above, it is not in dispute that there were no issues regarding the Applicant's ability to perform her role during this time. It was only after her second period of parental leave that the Applicant apparently began to experience difficulties adjusting to the restructure of Greater Sydney LLS. This was also despite, in the Applicant's words, her role of Senior Land Services Officer in Greater Sydney LLS being effectively the same role as the role she had held since 2006. This evidence indicates that the Applicant's difficulties from 2015 onwards were due to the manifestation of the Applicant's non-work related mental illness. 81. The records of the Applicant's treating practitioners at the time support that her symptoms of anxiety increased immediately upon her return to work and over the 12-month period prior to 1 June 2017 which continued thereafter. Dr Bailey's clinical notes of 1 June 2017 record: "very anxious over the past 12 months now teary and not functioning, teary allt he (sic) time, leaving work often" 82. On 1 June 2017, the Applicant was diagnosed with anxiety by Dr Bailey. 83. Ms Jessica Stanford, the Applicant's treating psychologist in 2017, includes each of the following notes in her clinical notes of an appointment with the Applicant on 9 June 2017: "Lost confidence after maternity leave finished" "teary - since having kids" "been feeling this way since youngest born" "Impression - identity shift ... adjustment - organisational change" 84. Ms Stanford also records in these notes that "work used to be a big part of [the Applicant's] identity (before kids)". In cross-examination, the Applicant accepted that this was a fair statement and also stated that her identity shifted after having her children. 85. Dr Chow's First Report … also indicates that the Applicant had reduced resilience to cope and escalation of personality vulnerability after returning from her second period of parental leave. 86. Further, there is overwhelming evidence that the Applicant had manifested her underlying illness in a number of episodes at work where she appeared unable to cope with work and her inability to perform work. In cross-examination, the Applicant stated that while there had been discrete incidents at work between March 2016 and May 2017, by the last week of May 2017 she "just stopped functioning". This is consistent with Ms Elliott's witness statement, which indicates that in the second half of May 2017, the Applicant appeared very upset on numerous occasions and informed Ms Elliott that she had been experiencing panic attacks. 87. The Respondent submits that the medical and objective evidence overwhelming supports that the Applicant developed an anxiety and adjustment disorder in the period following the birth of her second child in 2015. This illness was a manifestation of the Applicant's underlying rigid personality traits and associated vulnerability to anxiety and adjustment disorder. It was triggered by a shift in the Applicant's identity following the birth of her second child and return to work following that period of parental leave. 88. The Applicant has never received claimed or received workers' compensation in relation to the period prior to 1 June 2017. There is no evidence to suggest that the mental health issues arising prior to 1 June 2017 were in any way arising from the course of employment." [Emphasis in original. Footnotes omitted.]
3. The respondent also submitted that: "110. Contrary to the Applicant's Submissions, it would be wholly artificial and unrealistic to divorce the Applicant's discrete exacerbations of her mental condition for defined periods from the overall ongoing impact of her diagnosis of a pre-existing chronic adjustment disorder with anxiety and traumatisation symptoms which manifested in her inability to perform her job without adjustments. This reinforces the likelihood that a substantial and operative reason for Mr Kelly's decision to dismiss the Applicant related to her overall condition and not the discrete injuries she received towards the end of her employment. It is highly implausible, and inconsistent with Mr Kelly's evidence, to suggest that a brief incapacity in July 2019 would have been a substantial and operative cause of Mr Kelly's decision to dismiss the Applicant from her employment on the basis that she could not perform her role due to a "mental incapacity" in January 2020. 111. It is even more implausible, and again inconsistent with Mr Kelly's evidence, to suggest that any unfitness arising from the injuries in November 2019 could have been a substantial and operative cause of Mr Kelly's decision to dismiss the Applicant, considering that the concerns regarding the Applicant's ability to perform her role had already arisen and resulted in the Respondent commencing the medical retirement process in relation to the Applicant (which was on the basis that the Applicant was unfit to perform or incapable of performing the duties of her employment). In the case of the incident notification lodged by the Applicant on 23 November 2019, the alleged injury occurred after (and allegedly because) Mr Kelly provided the show cause letter to the Applicant on 22 November 2019, and therefore occurred after Mr Kelly had formed a view regarding the Applicant's mental incapacity and ability to perform her role. It makes no logical sense that that any unfitness arising from that injury which emerged after he had decided to initiate the process of potential dismissal under s 47(1)(d) of the GSE Act could have been a substantial and operative cause of Mr Kelly's decision to dismiss the Applicant. Indeed, Mr Kelly confirmed in cross-examination that he understood that the concerns regarding the Applicant's ability to perform the inherent requirements of her role had been ongoing for more than six months (that is, since before July 2019). 112. While the July 2017 Claim does not form part of the Applicant's reinstatement application, it is noted that Mr Kelly's reasons also clearly related to the period following 28 December 2017 (that is, after that closed period ended). Mr Kelly's evidence refers to significant issues developing in relation to the Applicant's ability to perform her role between 2018 and 2019, following the receipt of Dr Chow's First Report in March 2018. Those issues are reflected in Mr Kelly's assessment of whether the adjustments recommended in Dr Chow's Second Report could reasonably be accommodated by LLS. The show cause letter provided by Mr Kelly to the Applicant on 22 November 2019 also refers to a variety of concerns regarding the Applicant's ability to perform the inherent requirements of her role in the period August 2018 to June 2019. In relation to these concerns, Mr Kelly states: "While your attendance improved in the period [from August 2018] up to June 2019, and despite significant adjustments and extensive support that Local Land Services provided to you, you demonstrated that you do not have the capacity to perform the inherent requirements of your role." 113. Mr Kelly also refers in his statement regarding his reasons for the Applicant's dismissal to the Applicant having extensive absences from the workplace from June 2017 onwards and being unable to successfully return to work under several return to work plans following these absences. The Respondent submits (and it is Mr Kelly's evidence) that the references by Mr Kelly to these matters are related to the Applicant's ongoing and pre-existing mental illness (as evidenced by the fact that the Applicant's absences and inability to successfully return to work on a return to work plan continued after 28 December 2017 when her entitlement to compensation for the July 2017 Claim ended). 114. In short, Mr Kelly's reasons relate to a period where the Applicant was not experiencing a compensable injury, but continued to experience a pre-existing non-work related mental illness. These surrounding circumstances support Mr Kelly's evidence regarding the view he formed as to the Applicant's mental incapacity. [Emphasis in original. Footnotes omitted.]

Applicant's case in response

1. The applicant replied to the submissions of the respondent at length. While much of it repeated at greater length submission made earlier, as the onus in respect of the current question rests on the respondent, the case for the applicant is one which could reasonably be mostly in response.
2. The following parts of the applicant's Response to the Respondent's Final Submissions reflect the substance of the applicant's case in response: "35) The parties agree that Mr Rob Kelly, in the position of Acting CEO of Local Land Services made the decision to dismiss the Applicant pursuant to s 47(1)(d) of the GSE Act on the grounds that she was unable to perform the duties of her role due to mental incapacity. 36) On page 2 of the Respondent's Final Submissions a summary of Mr Kelly's evidence states that: a) He formed the view that Ms Smith could not perform the inherent requirements of her role due to a pre-existing non-work-related mental illness, and for this reason only, he decided to terminate her employment; and 37) The Applicant submits that Mr Kelly's assertions that he dismissed the Applicant due to mental incapacity as a result of non-work-related mental illness should not be accepted by the Industrial Relations Commission for the following reasons; 38) Firstly, Mr Kelly's own evidence, establishes that he did not at the time of the dismissal rely upon the Applicant experiencing incapacity due to a non-work-related illness as a cause for the dismissal. 39) Using the approach in NSW Nurses and Midwives Association (o/b Lenard) v Wesley Community Services Ltd (2016) 257 IR 285 at; [36] Counsel for the respondent further submitted that the effect of the decision in Bindaree Beef can be distilled in this way. If, as counsel put it, (i) the decision maker gives evidence as to the reason why the applicant was dismissed; (ii) that reason does not include a compensable injury; (iii) the decision maker is believed; Then the empoloyer will rebut the presumption in the reverse onus and will succeed in the case. ... 42) Moving to Part ii) of the formulation above, The Show Cause Letter, explaining Mr Kelly's reasons for the dismissal, does not mention that Mr Kelly had formed the view that the Applicant was experiencing incapacity due to only a non-work-related mental illness. That is, Mr Kelly's own evidence, from the actual Show Cause Letter dated 22 November 2019, establishes that the respondent, did not at the time rely upon the Applicant experiencing incapacity due to a non-work-related illness as a cause for the dismissal. As in the case above, this is simply a statement of fact of what Mr Kelly in fact relied upon at the time of the termination. 43) It is noted that Mr Kelly provided retrospective assertions in his statement dated 12 May 2022, and repeated this perspective during cross-examination, that conflicted the evidence above. ... 58) Further, Mr Kelly, in the Show Cause Letter, makes no reference to a procedural fairness process provided to the Applicant in response to Local Land Services apparent concerns that the Applicant did not have capacity to perform the inherent requirements of the Applicant role. This is a notable absence. 59) This is just one example that reflects the perspective the Applicant provided during re-examination that Local Land Services Managers developed a strong negative bias towards the Applicant and her work following her disclosure that she was experiencing mental illness and request for reasonable adjustments at work in mid-2017, and subsequently lodged a workers compensation claim. 60) Procedural fairness is concerned with the procedures used by a decision-maker, rather than the actual outcome reached, and an executive officer of Mr Kelly's experience would be expected to have an understanding and working knowledge of this concept. In the circumstance when an employer has concerns about the performance of an employee this generally means that the employer needs to provide the employee with a clear written warning outlining that unless their conduct or performance improves, their employment may be at risk. In a state government agency this could also mean giving the employee a reasonable amount of time to improve and support, training and opportunity to assist them. … 72) Finally, it is relevant to note that Mr Kelly's evidence did not include any positive evidence that he would follow the same decision-making process again in a similar situation, and, he did not include the process he had followed to ensure that he had addressed the various legislative requirements before terminating the Applicant's employment. Alternatively, Mr Kelly's evidence centred around accepting the briefings and recommendations from the same staff that had been involved in unlawfully initiating the Applicant's medical retirement. 73) Regardless, the Applicant submits that Mr Kelly's assertions regarding his belief that the Applicant was suffering from illnesses that were not work related are incorrect, self-serving, and not supported by the documented evidence available. Further, the Respondent at [121] in their Final Submissions concedes that the Applicant's injuries may have caused the Applicant's mental incapacity, and further that the medical evidence available did not clearly attribute the cause of the incapacity. The Applicant's submission that the determination as to the cause or contributing factors for the mental incapacity experienced by the Applicant is a decision for a specialist medical expert was not disputed by the Respondent. … 77) … at [47] in the Respondent's Final Submission, it was confirmed that in response to a question of why alternative options to dismissal were not considered, that Mr Kelly stated; "In terms of where we ended up in the decisionmaker process and reliant on the fact that Dr Chow's report said that the long-term prognosis was uncertain, all reasonable adjustments had been made and the advice that I'd received and the information that had come back to me through the process was that the option to terminate on the based on not being able to perform the inherent requirements of the role was the only option available." 78) The Applicant submits that this perspective is not support by the evidence available to the Commission, because the following evidence was available to Mr Kelly at the time; a) The Applicant specifically noted in the letter dated 6 December 2019 that "These submissions have been intended to be non-adversarial in nature and made in good faith. In part, they are also premised on an assumption that many of the relevant factual details, and their relevance for the legal position, may not have been made available to you at the time of formulating the proposal to terminate Trish's employment and drafting the 22 November Letter. In the event that Trish is able to persuade you to reconsider this position, she remains open to committing to a collaborative approach to her return to work." b) Mr Kelly had been advised that "The Second Chow Report did not contain an opinion that the inherent requirements could not be performed by Trish once the appropriate reasonable adjustments were made. Dr Chow's letter also states that Trish may need further assessment if the workplace cannot make these adjustments and also that Trish may need a further period of leave to see if her condition can improve." с) Mr Kelly had been advised that the finding by Dr Chow, that the Applicant cannot currently perform the inherent requirements of the role was "subject to a further finding. that once adjustments are made, the inherent requirements could be performed. The critical legal test {which is set out further below) is not whether the inherent requirements can be performed at any given point in time, but whether they can be performed (assessed objectively) once reasonable adjustments are made. d) Mr Kelly, had not provided the Applicant procedural fairness when he chose not to properly consider and resolved the concern the Applicant had raised that the Non-Work Procedures had not been followed during the referral process to the IME, and yet chose to still rely upon the report as part of the basis for the Applicants dismissal. e) Mr Kelly was aware of the perspective that "Dr Chow stated that while Trish may not be currently fit to perform the role she would be in the foreseeable future "with a more structured and sophisticated return to work plan with modified duties and support from a rehabilitation provider". (See CB pg 149) f) Mr Kelly confirmed that he had been trained in the Non-Work Procedures and that he had a working knowledge of their content. The Non-Work Procedures expressly state that; "I. Under Disability Discrimination Act 1992 (Cth) and the Anti-Discrimination Act 1977 (NSW) employers are required to make reasonable adjustments for employees with a disability to meet the inherent requirements and demands of their position. Consultation about the adjustments must occur with the employee concerned. 2. The defence of unjustifiable hardship only applies to job applicants or dismissed employees. It does not apply to existing employees. Reasonable adjustments must be made for existing employees." g) Mr Kelly was aware that it was "apparent that there is a significant disparity between our client's version of facts in this matter, and the instructions you have apparently received from LLS as to those same factual issues... Suffice to say, however, that the version of factual events that has been provided to you by Ms Smith's managers are not in any way supported by the large volumes of documentary evidence on file in this matter. h) Mr Kelly was aware of the circumstances of Ms Smiths November injuries, and as the decision-maker could have supported the Applicant's November 2019 injury claim and focused on recovery@work with the support of the insurer. The circumstances of the November injury may be unfair dismissal because; No Show Cause process given the Applicant an opportunity to respond to the concerns before initiating her medical retirement unlawfully under the GSE Act, and confirming the last day of duty would be 27 November 2019, The Applicant had not been told that there were apparently long-standing issues with her work performance and had not been given an opportunity to improve, Not implementing the IME process in accordance with the Respondents own Non-Work Procedures despite acknowledging that this was the appropriate guidelines to manage the process, In the letter dated 7 November 2019, the Respondent only provided the Applicant with an awareness of one of the two ways available through the Non-Work Procedures to appeal the decision, there was no reference to the availability of processes to appeal the decision of the agency, Mr Kelly understood at the time of the Applicants dismissal that there was a risk that the dismissal would expose the organisation to legal action. 79) Based on the available evidence the Applicants submits that there were alternatives to dismissal that were presented to Mr Kelly, and that coupled with evidence that the Applicant's dismissal was a predetermined outcome, this supports the perspective that the Show cause process was conducted in form not substance. … 121) There is a possibility that the strong negative bias the Applicant felt specific Local Land Services Managers developed towards the Applicant and her work, including comments that "It is my view that Trish simply cannot accept the fact that she is mentally unwell and rather feels that work "caused her sickness" and in turn seeks some form of retribution, compensation or apology", may have formed as a consequence of a poor understanding of how to support an employee with mental illness through reasonable adjustments in accordance with the Non-Work Procedures. 122) It was the Applicants post-traumatic stress condition that developed as a result of the July 2017 injury that was again triggered in July and November 2019. The primary evidence provided by the Applicant, correlates to her evidence provided in cross-examination as is noted at [95] in the Respondent's Final Submissions, that; [95] "It is noted that the Applicant referred in multiple occasions to the flare in her symptoms caused by the PDP meeting on 17 July 2019 being "minor" and that she "just...needed the afternoon off". The Applicant says that the only reason she stayed off work for longer than this was because of the way the incident was handled by LLS and the Department" 123) The Respondents notes in the footnote below, that the Respondent's position is that it could not safely permit the Applicant to return to work given the inconsistent medical certificates provided by Dr Bailey in July 2019, and that this was appropriate in the circumstances. 124) The Applicant does not have an issue with the Respondent needing to confirm the reasonable adjustments that were required following the confusion in July 2019 to be able to provide a safe workplace and suitable duties for the Applicant." [1] [Reproduced as set out. References omitted.]

Was the applicant an injured worker?

1. It is clear that the applicant is relevantly an injured worker. This follows clearly and inevitably from the final decision relating to her workers compensation claims from July and November 2019. The decision of the Commission in Potter, and the reasons expressed therein, leave no room for doubt on this question.

Was the applicant dismissed because she was an injured worker?

1. Whether the applicant was dismissed because of the compensable injury she received is a more complex issue.
2. It was the applicant's case that, other than for very short periods, the only legitimate complaints about her capacity for work arose from her workplace injuries. While she conceded there were short periods where her underlying medical condition detrimentally impacted her work performance, it was her case that she was otherwise a high performing employee who completed her work and behaved and responded appropriately in the workplace.
3. The Commission does not accept this is a fair or accurate summary of the underlying facts.
4. The Commission accepts the evidence of the respondent's witnesses, supported by a wide range of documentary evidence, that even outside periods where the applicant suffered from a workplace injury, she did not perform her work to a satisfactory standard for an employee of her grade, and that she was unable to cope with the unexceptional day-to-day requirements and stressors of her role. Further, her responses placed unreasonable and exceptional burdens on her colleagues. The Commission observes that there was no sense in which it was apparent that the applicant had reflected on her conduct as being unreasonable, even in retrospect.
5. The Commission does not accept the applicant's submission that a negative inference should be drawn from the respondent not calling her final line manager to give evidence. The evidence of Ms Elliott set out clearly that Ms Keyser was not called because Ms Keyser experienced unreasonable stress in her dealings with the applicant. The Commission has accepted this evidence, supported as it was by the Commission's observations of the applicant during the proceedings.
6. It is clear that the original source of her inability to cope in the workplace was not work related. It should be observed that ultimately the applicant's claim that she suffered a psychological injury in the workplace was accepted, and accordingly the Commission must and does accept that she suffered such an injury.
7. However, it is fundamental to observe that the July and November 2019 injuries were sustained respectively: 1. during an annual performance development plan meeting with her manager; and 2. flowing from her response to receiving letters from the respondent commencing a process considering her dismissal.
8. It is clear from the evidence given that the annual performance development plan meeting was conducted by her manager in a manner which was completely reasonable. That such a meeting could result, and it is not disputed that it did, in a compensable injury does tend to show that the applicant's underlying medical condition made her unfit for her role.
9. The applicant submitted that the respondent had not conducted a risk assessment of her likely response before sending her letters in a form contemplated by, inter alia, s 47(1)(d) of the Government Sector Employment Act 2013.
10. The observation set out above at [59] is equally pertinent to the applicant's response to the respondent's letter.
11. The Commission also observes that, as submitted by the respondent, the respondent had already reached the conclusion that it had a basis to ask the applicant to show cause why she should not be dismissed because of her health by the time that the applicant sustained the November 2019 injury.
12. The Commission has concluded that the fundamental reason the respondent dismissed the applicant was her underlying medical condition, which was not work-related.
13. It is nevertheless clear that the respondent was aware at the time of the dismissal of both the applicant's previous workplace injury, and that she had claimed to have suffered further injuries, albeit they had not then been accepted. Can the respondent credibly claim that these can be divorced from the reasons for the applicant's dismissal?
14. Against the respondent are the following factors: 1. most obviously is that the applicant was an injured worker, and some scepticism should be exercised in divorcing that injury from the reasons for dismissal; and 2. the effects of the applicant's workplace injury exhibit similar features as to her capacity for work as her underlying illness.
15. In favour of the respondent are the following factors: 1. the extensive history of the applicant's underlying illness, its ongoing nature, and that it clearly was not a work related illness; 2. the extensive and compelling evidence that the applicant was unable, for extensive periods, to perform her work satisfactorily, including as to volume of work, management time taken and her own self-reported levels of stress, for reasons that were not compensable; 3. the applicant's focus, including during these proceedings, on alleged failings by the respondent to follow the respondent's Non-Work Procedure as to her dismissal, and the respondent's alleged failure to provide her with "reasonable adjustments" pursuant to State and Commonwealth disability legislation. Clearly, neither of those claims related to any workplace injury; 4. that the applicant made submissions that the respondent was biased against her in the process of her dismissal because she was experiencing mental illness; 5. that the terms of the letter dismissing the applicant were expressed to be based on a statutory provision that depends on illness and not injury; and 6. that the respondent commenced the process to dismiss her prior to the final compensable injury suffered by her.
16. In balancing these factors, the Commission has concluded that it is satisfied that the applicant's compensable injury was not a substantial and operative cause of her dismissal. The respondent's case is substantial, detailed and persuasive. The applicant's attack on that conclusion ultimately relies on a coincidence of events.
17. While it is not without some doubt, on the balance of probabilities the Commission is relevantly satisfied.
18. The Commission is fortified in the correctness of this outcome because it is clear from the evidence before the Commission that a decision by the respondent to dismiss the applicant solely based on her underlying medical condition was a rational one and was supported by the evidence available at that time.

Orders

1. The application is dismissed for want of jurisdiction. C Muir Commissioner

Endnote

1. The applicant explained during oral submissions that paragraphs marked ")" were her submissions, and paragraphs marked "[ ]" were quotes from numbered paragraphs of cited cases or the respondent's submissions or witnesses' statements. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2023