Schobbe v ANZ Banking Group Limited

Background

1. The applicant commenced employment at the respondent's Katoomba Branch as a full-time Service Consultant in 2006. At the time the applicant was interviewed for the position she disclosed that she was an insulin dependent diabetic.
2. In 2008 the applicant became pregnant and needed to reduce her hours of work on the advice of her doctor. She claimed that her line manager, Ms Deborah Presland, was extremely unsupportive at this time and treated her with contempt. According to the applicant, this made her feel excluded and isolated and caused her to become depressed. Ms Presland denied these allegations.
3. The applicant again took maternity leave and then returned to work in March 2010 working 21 hours per week. She claimed that she was reduced to basic duties and that she was disadvantaged by not having regular performance management and by being denied the opportunity to attend a personal loan course in March 2013.
4. According to the respondent, between 1 April and 1 October 2012 the applicant took the equivalent of 15.76 weeks of sick leave in total, of which 13.38 weeks was taken as leave without pay.
5. In April 2013 the applicant broke her little finger and required light duties. She claimed that Ms Presland told her that there were no light duties. She was forced to take six weeks leave without pay which caused financial stress and increased her depression.
6. The applicant continued to take sick leave due to a variety of causes throughout 2013. She was advised by Ms Presland that she would need to provide medical certificates to cover her absences.
7. On 17 August 2013 the applicant was involved in a motor vehicle accident (MVA) and was absent from work for one week. The applicant later made a claim for damages as a result of this MVA
8. Ms Presland resigned from her position in October 2013. Ms Alli Gartrell, ANZ District Manager responsible for the Katoomba Branch, took over the management of the applicant in relation to her attendance record at work. In consultation with ANZ Employee Relations, a decision was made to have the applicant undergo an assessment of her fitness for work.
9. The applicant was assessed by Dr Uthum Dias, Consultant Occupational Physician, on 21 November 2013. In his report dated 27 November 2013, Dr Dias noted that, for a variety of medical and personal reasons, the applicant had taken upwards of 65 sick days over the past 12 months which, based on working a three day week, represented close to 22 weeks of the year as sick leave. The report stated, in part: Undoubtedly in totality her sick leave has been extremely excessive and overall, unreasonable in the context of what would be expected from an employee in her situation, at least from a medical perspective. Overall I would estimate that probably half of the sick leave that she has required due to personal reasons and medical reasons has been warranted.
10. A copy of Dr Dias' report was provided to the applicant by Ms Louisa Jenske, ANZ Senior Employee Relations Advisor. A meeting occurred on 17 December 2013 at which the applicant and Ms Gartrell were present and Ms Jenske attended via teleconference. The applicant claimed that she found this meeting to be intimidating. She felt she was being cross-examined and was left feeling shaken and very distressed.
11. Following the meeting, Ms Gartrell sent the applicant an email as a follow-up to the meeting which set out the respondent's expectations with respect to the taking of sick leave, the preference for attendance at medical appointments on non-work days where possible and the necessity to adopt correct procedures for the taking of leave. The applicant claimed that, following receipt of this email, she lost confidence in what management was doing and was totally confused.
12. In January and February 2014 the applicant took further sick leave and failed to provide medical certificates either at all or in a timely manner. The applicant also failed to record her absences in the manner as directed. These matters were brought to Ms Gartrell's attention by Mr Joshua Crossley, the new branch manager at Katoomba.
13. Another meeting was arranged for 18 March 2014. In attendance were the applicant, Mr Crossley, Ms Gartrell and Ms Jenske via teleconference. The applicant declined the offer to have a support person present. Ms Gartrell questioned the applicant as to why she had failed to comply with the directions she had been given in December 2013 concerning the requirement to provide medical certificates and the recording of sick leave. She was advised that her failure to comply with these expectations was putting her job at risk. The applicant claimed that she felt bullied at this meeting and that her depression hit high levels and it affected her home life and self worth.
14. On 1 April 2014 the applicant was issued with a 'Final Warning' letter in relation to her failure to comply with reasonable directions with respect to the respondent's sick leave policy. Annexed to this letter was an 'Attachment A' which set out a number of directions which the applicant was required to follow when taking sick leave.
15. Between the issuing of the final warning on 1 April 2014 and 4 September 2014, the applicant took approximately 50 days leave, mostly as leave without pay. In relation to a number of absences, the applicant failed to comply with the directions which she had been given in December 2013 and in the 'Final Warning' letter of 1 April 2014.
16. On 16 September 2014 Ms Gartrell advised the applicant that she would be required to attend a formal meeting to discuss her absences from work. On that same day the applicant consulted her doctor, Dr Samantha Critchley, and advised her of the proposed meeting concerning her sick leave absences. Dr Critchley made the following notes: has been super stressed by way she being treated at work and being told it is behavioural not due to medical conditions
17. The meeting took place on 18 September 2014. Present at the meeting were the applicant, her father and a representative from the Finance Sector Union as support persons, as well as Ms Gartrell, Mr Ben Holland, ANZ Employee Relations, and Ms Carly Potts, ANZ Service Quality Manager.
18. Mr Holland, who led the meeting, advised the applicant of concerns relating to: (a) the applicant's failure to give adequate notice of her intention to take leave; (b) the failure of the applicant to provide adequate reasons for leave; (c) the need to remind the applicant to provide medical certificates to substantiate sick leave; and (d) the reason why this conduct had continued despite earlier directions.
19. The applicant was provided with a list of eight allegations concerning times when she had been absent from work and had failed to comply with earlier directions concerning notification to her branch manager. The applicant responded in writing to those allegations on the same day, 18 September 2014. Attached to the applicant's response was a copy of a letter dated 15 August 2014 from the applicant addressed to Ms Gartrell, Ms Jenske and Mr Crossley. In this letter the applicant alleged that she had been subjected to workplace bullying and harassment but did not claim that she had suffered any work-related injury as a result. Ms Gartrell claimed that she had not seen this letter until she received it as an attachment to the applicant's response of 18 September 2014.
20. The applicant also claimed that she had never received 'Attachment A' to the Final Warning letter issued to her on 1 April 2014. Ms Gartrell formed the view that the applicant had received 'Attachment A' and that her claim to the contrary was dishonest.
21. A further meeting was convened in order to put to the applicant the allegation that she had been dishonest in relation to 'Attachment A' and to give her an opportunity to respond. That meeting occurred on 22 September 2014. At this meeting the applicant responded to the allegation of dishonesty. The meeting adjourned for a short time during which Ms Gartrell, Mr Holland and Ms Potts conferred and determined to terminate the applicant's employment for two reasons: (a) Failing to comply with reasonable directions as to compliance with the expectations set in December 2013; and (b) Dishonesty in relation to her responses about receiving 'Attachment A' as part of the Final Warning letter, in that the dishonesty and the discussion of it had resulted in a loss trust of between the two parties.
22. The applicant was subsequently provided with a letter of termination dated 25 September 2014 and signed by Ms Gartrell.
23. At the time of the applicant's dismissal, she made no claim that she was not fit for work as a result of a work-related injury, or for any other reason.
24. On 3 October 2014 the applicant lodged a workers compensation claim alleging "psychological injury" and seeking weekly benefits and lump sum compensation. The claim was denied by the respondent. The applicant sought a review of this decision.
25. Between November 2014 and November 2015 the applicant was examined by a variety of medical practitioners in relation to her damages claim arising from the MVA on 17 August 2013. In none of clinical notes or reports of these doctors was there any reference to the applicant claiming that she had suffered a work-related psychological injury and had been dismissed by the respondent because she was not fit for employment as a result of that psychological injury.
26. On 19 November 2015 the applicant settled her MVA claim for $445,000 which included compensation for past and future economic loss, including for the period for which the applicant was claiming workers compensation payments.
27. On 7 March 2016 the applicant's workers compensation claim was settled in the Workers Compensation Commission by the entering of consent orders and the issuing of a certificate pursuant to section 294 of the Workplace Injury Management and Workers Compensation Act 1998 ('WIMWC Act'). The effect of the consent orders was that the applicant was paid weekly workers compensation payments for the period 15 September 2014, the deemed date of the injury, through to 10 November 2015.
28. Following the settlement of her workers compensation claim, the applicant consulted her doctor, Dr Gorbach, on 14 March 2016. Dr Gorbach's notes of that consultation recorded the following: She has "won" her case against ANZ (needs to be finalised). She is going for a return to work option with ANZ. May be problematic but her solicitor thinks it is doable.
29. On 30 June 2016 the applicant obtained a medical certificate from Dr Gorbach which declared her fit for pre-injury duties. Dr Gorbach's notes of that consultation recorded as follows: Needs a final WC cert issued as her lawyer is working towards getting her job with ANZ back.
30. Following the respondent's rejection of the applicant's claim to be reinstated pursuant to section 241 of the WC Act, the present proceedings pursuant to section 242 of that Act were instituted.

Case for the applicant

1. The case for the applicant may be shortly stated.
2. The applicant was, pursuant to consent orders made in the Workers Compensation Commission on 7 March 2016, paid weekly payments from 15 September 2014 until 10 November 2015. Her employment had been terminated on 22 September 2014 because she was not fit for employment as a result of the psychological injury for which she subsequently received workers compensation payments.
3. As of 30 June 2016 the applicant was fit for her pre-injury duties and was entitled, pursuant to section 241 of the WC Act, to apply to the respondent for reinstatement to her former position.
4. Upon the respondent's failure to reinstate the applicant, she was entitled, pursuant to section 242 of the WC Act, to apply, as she has done, to this Commission for a reinstatement order.
5. Section 244 of the WC Act creates a presumption in favour of the applicant to the effect that it is to be presumed that she was dismissed because she was not fit for employment as a result of the injury for which she subsequently received workers compensation payments.
6. It is not open to this Commission to go behind the consent orders made in the Workers Compensation Commission to examine the legitimacy of the applicant's workers compensation claim (s 105 of the WIMWC Act).

Case for the respondent

1. The respondent's primary submission is that it has rebutted the presumption under section 244 of the WC Act on the basis that the Commission would be satisfied that the applicant's psychological injury, for which she received workers compensation payments, was not a substantial and operative cause of the dismissal of the applicant (ss 244(2) of the WC Act).
2. The respondent goes further and submits that the Commission will find that no part of the decision to terminate the applicant's employment was based on any work-related psychological injury. If that be the case then the matter stops there and the Commission need go no further.
3. Further submissions were put by the respondent to the following effect: (a) The applicant was not an 'injured worker' by virtue of section 11A of the WC Act. (b) The Commission would not be satisfied that the applicant is fit to return to the duties that she was performing prior to her dismissal. (c) The Commission would be satisfied that there is no job available of the kind that the applicant was employed in prior to her dismissal. (d) The Commission would not, in any event, exercise its discretion to reinstate the applicant given the significant dishonesty issues that have been raised at the time of the termination and during the proceedings
4. For the reasons set out below, I do not propose to deal with these further submissions of the respondent. In light of the determination I have made with respect to the respondent's primary submission, it is unnecessary to do so.

Determination of the application for a reinstatement order

1. This application fails to satisfy the requirement in subsection 241(1) of the WC Act in that the applicant was not dismissed because she was not fit for employment as a result of the injury for which she later received workers compensation payments. The respondent has rebutted the presumption in favour of the applicant in section 244 of the WC Act.
2. I am satisfied, on the evidence before the Commission, that the dismissal of the applicant had nothing at all to do with any work-related psychological injury which the applicant claimed to have suffered.
3. As at 22 September 2014, the day on which the decision was made to dismiss the applicant, there was no suggestion from the applicant that she was not fit for employment as a result of a work-related injury, or for any other reason. The decision makers, primarily Ms Gartrell, were unaware that the applicant would, 11 days later, claim to have suffered a work-related psychological injury. Her workers compensation claim was not made until 3 October 2014. The fact that, on 7 March 2016, the parties settled the applicant's workers compensation claim, and agreed on a deemed date of injury of 15 September 2014, cannot alter the state of mind of the decision makers as at 22 September 2014, the date on which the applicant was dismissed.
4. However, as I understand the case put on behalf of the applicant, it is asserted that the respondent, through a number of its employees, knew that the applicant was suffering from a work-related psychological injury well before she was dismissed. It was the applicant's unfitness for work as a result of this injury that was a substantial and operative cause of the dismissal of the applicant.
5. The contention that the Commission should find that the respondent has not rebutted the presumption in favour of the applicant in section 244 of the WC Act was put by the applicant's solicitor, Mr Collins, in the following terms: What we ask you to do is to infer from the evidence objectively and from the scenario that the evidence has been before you that the evidence put forward by the respondent does not satisfy you in relation to that onus and in relation to that we ask you to look at really certain common sense sort of matters
6. In support of this contention, Mr Collins put the following propositions, each of which I deal with in turn: 1. We have an applicant who we know is seeing psychologists and getting mental health issues. We have evidence that the respondent is aware of that. We have Alli Gartrell saying that she's aware that the applicant has psychological issues since 2013. Knowledge that the applicant is seeing psychologists falls far short of knowledge that she is suffering from a work-related psychological injury. Ms Gartrell's evidence as to her knowledge of the applicant's psychological state was as follows: Q. You're aware that she suffered from depression? A. She was stressed at home, yes; I was aware of that. Q. Sorry, you were aware that she suffered-- A. Was stressed at home, yes. Q. I'm not asking you the cause of it, I'm just asking you whether she - you were aware that she suffered from psychological issues? A. Yes. Q. And when did you first become aware that she suffered from psychological issues? A. Two thousand and thirteen, end of 2013. At no point in the evidence was it established that Ms Gartell, or anyone else in the employ of the respondent, had knowledge that the applicant had, or was claiming to have, a psychological condition that was work-related. 1. We have the employer sending her for a medical. Even though it's an occupational physician, he specifically comments and the point of the report of course, I'm talking about Dr Dias, is that it's for the purposes of determining her work capacity and work issues. He's recommending because of the psychological issues an independent psychiatric report be undertaken. That doesn't occur. Due to her extensive use of sick leave, the respondent decided that the applicant should undergo an assessment of her fitness for work. In a report dated 27 November 2013, Dr Dias noted that the applicant had reported that she suffered from postnatal depression after the birth of each of her three children. After the birth of her last child this evolved into generalised depression. Dr Dias also noted that the applicant was seeing a psychologist "in relation to her symptoms of depression in general and relating to her current pain stemming from the motorbike accident of 17 August 2013 under an active CTP claim relating to that accident". Dr Dias commented further: From a medical (non-psychiatric) perspective, Ms Schobbe's prognosis for all of her conditions in relation to continuing her pre-injury job role as a personal banker is good. I suspect the main barriers to regular attendance at work would be in relation to personal issues in her life and possibly mental health issues in relation to these aforementioned personal issues. I cannot comment on her mental health status, as it would be outside the realm of my expertise as an occupational physician; however, if this is a concern in the future, I would recommend an independent assessment by a psychiatrist in relation to her employment capacity in this regard. There is nothing in Dr Dias' report which, in any way, connects the applicant's psychological issues with her employment. As reported to Dr Dias by the applicant herself, her mental state related to non-work related factors such as her motor bike accident in August 2013 for which she would later receive damages in the amount of $445,000. The fact that the respondent did not follow up on Dr Dias' recommendation for an independent assessment by a psychiatrist does not advance the applicant's case any further. 1. We know that the applicant's evidence in her statements is that she's complaining of anxiety and depression to her fellow workers and to her employer generally and indeed is complaining about a number of matters particularly as set forth in her second statement at paragraph 7 and Mr Crossley basically gives a blanket disagreement in relation to all of those matters. Ms Gartrell, I would urge on you, agrees in principle that these are irregular matters and signify something unusual and what I would submit to you is that any reasonable worker submitted to all of those matters would quite reasonably and expectedly be thinking to themselves, well, there's something going wrong here, particularly when they already have a psychological condition and start to become distressed. The applicant's assertion that she complained to other staff and, in particular, to Mr Crossley about suffering stress, anxiety and depression, and that she was being bullied and harassed at work, is not supported by any other evidence. Mr Crossley stated as follows: At no stage, during her employment, did Ms Schobbe inform me that she was suffering from any psychological injury as a consequence of work related matters. Under cross-examination, Mr Crossley responded as follows to the proposition the he was aware of the applicant's psychological issues: Q. That you were simply, it is simply not true that you were unaware of her psychological state and issues? A. No, I wasn't aware. You can ask me anything about any of the other staff members' personal life and I wouldn't know either. We - it's not something we sit around and - unless they openly talk to me about it but I don't pry into peoples' personal lives. Q. You say you simply had no knowledge? A. No knowledge. Q. Not a clue? A. (No verbal reply) Q. You didn't see her cry in the office, in the bank? A. As I said, the only time I seen her crying was after she was terminated. Q. Never saw her crying there? A. Before that, no, no. Q. You were never told, you say, by anybody else at the branch that she was suffering from stress? A. No. I accept Mr Crossley's evidence on this issue and generally as being truthful. Further, between 1 January 2013 and 22 September 2014, the date of her dismissal, the applicant consulted various doctors at the Hazelbrook General Practice on no less than 57 occasions. Apart from the last of those consultations, which occurred on 16 September 2014 with Dr Critchley, none of the doctors' clinical notes record any statement by the applicant to the effect that she was experiencing any work-related health issue. The only references in the clinical notes to the applicant's mood or stress level are unrelated to the applicant's employment. The notes of a consultation with Dr Nilay Goktekin on 19 December 2013 read as follows: Correspondence from ANZ discussed with pt: long discussion she is happy to be going back to work on reg duties however still has ongoing pain issues and complications of her DM retinopathy (haemorrhages) The first reference to any work-related stress appears in Dr Critchley's notes of the consultation of 16 September 2014, the day that Ms Gartrell advised the applicant that she would be required to attend a formal meeting to discuss her absences from work. 1. We have known knowledge by the respondent that she has a psychological condition. We have known knowledge that she is under medical care in relation to that condition. We have known knowledge that the applicant, by her response of 15 August 2014, makes complaint of bullying and harassment. We have the evidence of Mr Crossley who says despite the fact that he's one of the people addressed in the letter he didn't know anything about it, he was never seen the letter and we have evidence from Ms Gartrell that, "Yes, we got the letter, but we didn't pay any attention to it because we didn't think it was relevant to what we're doing." Ms Gartrell gave evidence, which I accept, that she did not see the applicant's letter of 15 August 2014 until she received it as an attachment to the applicant's email of 18 September 2014 which was provided in the context of a disciplinary meeting which ultimately resulted in the dismissal of the applicant four days later. In this letter the applicant makes the claim that "the processes and procedures leading to my first and final warning have not been fair and compliant, and I feel I have been subject to workplace harassment and bullying". Nowhere in this correspondence is there any suggestion that the applicant was, either at that time or at any time in the past, suffering from a work-related psychological injury. 1. I would submit that that's not credible. There was clear knowledge by the employer of a workplace bullying and harassment claim being made by the applicant. The know she's psychologically affected. She then - and she attends the meetings on 18 September. She complains at the meeting and you've seen that she complains that she was distressed and stressed in the previous meeting back in December 2013. She is visibly shaking and disturbed at the meeting on 18 September and then we would say on a pretext terminated at a subsequent meeting some days later. If you accept that, the applicant is entitled to be reinstated. I do not accept any of that. The applicant's proposition, cut back to its bare elements, is as follows:
7. The respondent had knowledge that the applicant had been experiencing psychological issues.
8. During a disciplinary process which was occurring due to the applicant's failure to follow directions related to her excessive use of sick leave, the applicant made the claim that she had been subject to workplace harassment and bullying.
9. The respondent made the link and realised that the applicant had a work-related psychological injury for which she may be entitled to workers compensation, although no such claim had, by that stage, been lodged.
10. The respondent then used the applicant's failure to follow directions and her dishonesty during the disciplinary process as a "pretext" to dismiss her, when the substantial and operative cause of the dismissal was the applicant's unfitness for employment as a result of her work-related psychological injury, in relation to which no claim for workers compensation had been made at the time when the dismissal was effected. If that is the proposition contended for on behalf of the applicant, and I apprehend that it is, then I reject it.
11. The reasons for the applicant's dismissal are as set out in the dismissal letter of 25 September 2014, part of which is reproduced at paragraph 6 above. The applicant's psychological injury, for which she made a workers compensation claim after she was dismissed and for which she ultimately received, by consent of the parties, workers compensation payments, played no part whatsoever in the dismissal of the applicant.
12. Having regard to the terms of section 241 of the WC Act, I find that the applicant was not dismissed by the respondent because she was not fit for employment as a result any work-related injury suffered by her.
13. The application for a reinstatement order presently before the Commission must be dismissed.
14. I so order. JOHN MURPHY Commissioner

Amendments 15 February 2017 - Cover sheet - Legislation Cited: amend to read: Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998 15 February 2017 - Corrected Legislation Cited: 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: 15 February 2017