"Mr Stojanovski had received a combination of psychological and psychotropic treatments through his general practitioner, psychologist, and psychiatrist.

Mr Stojanovski was attending his general practitioner at an approximate frequency of once every three to four weeks. He was attending psychological therapy with his psychologist at an approximate frequency of once every two to three weeks. Mr Stojanovski had attended one consultation with his psychiatrist."

1. In the documentation Dr Kumagaya identified as briefed to him were: "Clinical records of

Dr Nick - Family Medicine Clinic Rockdale." The clinical records from the Family Medicine Clinic Rockdale were before the Commission, [32] and showed that in fact the GP treating

Mr Stojanovski clinic was not Dr Nick (whose surname was Cvetkovski), but

Dr Kuzmanovski. Further, the records do not support Dr Kumagaya's assumption that

Mr Stojanovski had been attending Dr Kuzmanovski once every three to four weeks for "psychological and psychotropic treatments," as is evident from the synopsis of

Dr Kuzmanovski's clinical notes below. Such treatment as was recorded had nothing to do with any psychological symptoms until 23 July 2024, when the events regarding deployment were occurring. Moreover during the period up to 11 November 2024, Mr Stojanovski did not attend any psychologist or psychiatrist. This apparent contradiction was unexplained, and of itself compromised Dr Kumagaya's opinion. 2. Later in his report, when commenting as to whether Mr Stojanovski's injury was wholly or predominantly caused by the actions of the respondent, Dr Kumagaya relied firstly on the "temporal chronology of the onset of Mr Stojanovski's psychological injury."[33] Dr Kumagaya repeated that Mr Stojanovski had "first experienced the onset of his depressive and anxious symptoms towards the end of 2023 in the context of differential treatment by his company." Dr Kumagaya said that "such symptoms" were only worsened by what Mr Stojanovski noted to be unreasonable actions by the employer. 3. I listened with interest to Mr Morgan's submissions regarding this issue. In a most thorough exposition of the relevant evidence and the applicable principles, Mr Morgan submitted that the respondent's actions regarding transfer and redundancy did not wholly or predominantly cause Mr Stojanovski's injury. However, he could not point to any evidence that supported

Dr Kumagaya's assumptions. He relied on Mr Stojanovski's statement as to the distress he allegedly felt at being drug tested, but without more, such an event did not necessarily indicate differential treatment from the employer - particularly when the statement was made after several key events. There may have been more prosaic reasons for the administration of the drug tests, and Mr Stojanovski did not elaborate on the background of this event. There was no evidence that either brother took any steps to protest their now alleged differential treatment at being drug tested, which is somewhat surprising in view of Mr Chris Stojanovski's being a union delegate. 4. Similarly, the trailer change did not generate any contemporaneous protest that was the subject of any evidence. There was in any event an inconsistency between Dr Kumagaya's history and Mr Stojanovski's statement in that regard. Mr Stojanovski said that following the drug testing on 14 November 2023, it was his brother's trailer that was changed in November, but that his trailer was not changed until 4 December 2023. Dr Kumagaya took a history that both trailers were changed at the same time in November 2023. 5. Be that as it may, again Mr Stojanovski did not elaborate as to how this was differential treatment - particularly where there may have been a number of weeks between the trailer change for each brother, depending on which version of the story was correct. 6. Whilst it might be argued that the brothers did not wish to jeopardise their employment by complaining, it is more significant that there is no support from Dr Kuzmanovski. 7. Both counsel referred to the caution with which clinical notes are to be approached, relying on cases such as Mason v Demasi[34] and Davis v Council of the City of Wagga Wagga.[35] In Qannadian v Bartter Enterprises Pty Ltd [36] DP Michael Snell said:

"35. Mason is from a line of appellate authority dealing with the use of clinical notes in the fact finding process. A number of these authorities are referred to in Winter v New South Wales Police Force [2010] NSWWCCPD 121 (which was reversed on appeal, on a different basis), where Roche DP at [183] said:

'It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care (Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]-[36])."

The authorities (including Mason) do not preclude the use of such evidence in the fact finding process, nor do they provide that such evidence should not be relied on, in the absence of evidence from the author of the clinical notes. The authorities require the use of caution by a fact finder, including having regard to the circumstances in which such notes are brought into existence'."

1. The relevance of the clinical notes from Dr Kuzmanovski's practice is that they demonstrate that Mr Stojanovski attended during the period identified by Dr Kumagaya when

Mr Stojanovski was allegedly experiencing the onset of his depressive and anxious symptoms. The notes are reproduced above[37] and demonstrate that Mr Stojanovski attended on the following occasions prior to being diagnosed by Dr Kuzmanovski with an adjustment disorder on 23 July 2024: * 27 October 2023 - URTI and renewal exam for driver's licence; * 16 February 2024 - needed certificate for day off with headache; * 3 May 2024 - URTI and two days fever; * 7 May 2024 - post infective cough; * 28 May 2024 - needed certificate for day off with headache; * 12 June 2024 - tired and lost confidence as truck driver. Needs a break, and * 26 June 2024 - right shoulder pain. 2. Mr Mogan referred to Davis in making a submission that it was possible to infer that these attendances were actually caused by the onset of the depressive and anxious symptoms described by Dr Kumagaya. However he had to concede that it was not suggested that

Mr Stojanovski had made any unrecorded complaint to Dr Kuzmanovski about any psychological symptoms, and I reject Mr Morgan's submission that the entries prior to

11 June 2024 inferentially supported Dr Kumagaya's assumptions that Mr Stojanovski had been seeing his GP once every three or four weeks for treatment and seeing his psychologist once every two to three weeks. The timing of the 12 June 2024 attendance may conceivably be related, as Mr Stojanovski was due to attend a meeting on 13 June 2024, but did not, as he said he was unwell. Equally, the attendance on 26 June 2024 may also be related, as one of the objections Mr Stojanovski raised to the proposed alternative employment at Chullora was that he had a right shoulder condition, and the proposed work would be more physically intense. 3. Dr Sherman was asked to comment on Dr Kumagaya's opinion that the "differential treatment" of the Stojanovski brothers, due to Chris Stojanovski's being a union member, was wholly or predominantly the cause of Mr Stojanovski's injury. Dr Sherman, as noted, said:

"I am not aware of concurrent medical evidence to substantiate Dr. Kumagaya's opinion..... as I've already pointed out he did not give me this alternative history. It appears Dr Kumagaya based his opinion solely on the claimant's self-reported history."

1. I concur with Dr Sherman. Dr Kumagaya's opinion is no more than a speculative unsupported hypothesis, based on the applicant's recollections in January 2025, which have no contemporaneous support. I am satisfied that Mr Stojanovski's injury was wholly or predominantly caused by the relevant actions of the respondent, and accordingly that the provisions of s 11A apply. I prefer Dr Sherman's opinion that it was the actions of the respondent with regard to transfer or possible dismissal/retrenchment that wholly or predominantly caused Mr Stojanovski's injury.

1. The principles applying to the defence are well known. The relevant authorities were considered by DP Sweeney in Colin Joss & Co Pty Limited v Williams[38] and they demonstrate that the test is objective. The positions of both sides have to be evaluated, the onus being on the respondent to establish that its actions were reasonable.
2. Thus, whilst the applicant has recounted those actions of the respondent that he regards as being unreasonable, the test is not subjective. In Heggie, Sackville AJA (Basten and Ward JJA agreeing) emphasised at [59] that:

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

1. The emphasis in Mr Stojanovski's claim is that the employer, through Mr Mabey and

Mr Sammut, was unreasonable in its actions during the meeting of 6 June 2024. An alleged minute of it was produced by Mr Stojanovski, and Mr Morgan relied on Mr Goddard's statement about it, claiming that Mr Goddard was independent because he had received his redundancy. 2. The first notice given to Mr Stojanovski that Toll would be ceasing work for Opal was on

19 June 2023 in a notice issued to "Opal Local Drivers."[39] The notice advised that the scope of work was secured until 31 March 2024, and it encouraged employees to engage with the leadership team and ask questions over the coming months. It said that Toll was committed to working "with each of you," and that it would continue to communicate and engage to keep him informed. It reminded Mr Stojanovski of the Employee Assistance Program, which was designed to offer practical support and guidance about what he did next. It was not suggested that this initial notice was in any way unreasonable. 3. Mr Morgan attempted to make a connection between that notice and the subsequent drug testing and trailer change around November 2023, but not even Mr Stojanovski suggested there had been a connection. Indeed Mr Stojanovski did not mention that first notice, but rather thought that these events had been provoked because the Stojanovski brothers had given witness statements in a workers compensation and HR dispute, and that his brother, in his capacity as a Union Delegate, had some subcontractors audited.[40] 4. Mr Stojanovski said that on receipt of the notice of 22 April 2024, which notified that the contract would ease effective 30 June 2024, he became anxious about his job security and livelihood. Again, it was not suggested that the action of giving this notice was unreasonable by the employer. Mr Stojanovski made no complaint about the meeting that was held on

9 May 2024 with Mr Mabey, Mr Sammut (by phone), Mr Goddard and Mr Peter Katar, who was a representative of the Transport Workers Union. That meeting, Mr Stojanovski said, discussed a possible renewal of the Opal contract, although Mr Mabey and Mr Sammut said in general terms that the meeting was to confirm the notice that the Opal contract was coming to an end. In any event Mr Stojanovski acknowledged that he was told that Toll was unsure of the future for the Opal contract drivers and an email would be sent regarding alternative positions. Again, it has not been suggested that these actions were unreasonable.

The alternative positions were in fact notified by letter addressed personally to

Mr Stojanovski and dated 16 May 2024, which has been reproduced above. This confirmed that the Opal contract was ceasing on 30 June 2024, and advised Mr Stojanovski that the future of his employment may be affected. It advised that the "primary goal" was "to take all reasonable and practical steps to redeploy team members to other areas of the business to avoid the potential review of your employment due to redundancy."

There were about 50 alternative positions that were both in Sydney and interstate.

Mr Stojanovski thought there were no suitable duties for him amongst those positions, but again no issue was raised that either the letter of 16 May 2024, or the supply of the alternative positions, was unreasonable.

Although there was a proposal in the letter of 16 May 2024 for a meeting the following week "regarding your views and in relation to the future of your employment with Toll Group," the meeting did not in fact take place until 6 June 2024.

1. The first issue raised by Mr Stojanovski related to the short notice, as it is common ground that the meeting was notified by SMS the day before. He held a belief that Mr Mabey was aware that his union representative was not available, and knew that the representative was interstate, which was why Mr Mabey had called the meeting at short notice. It would appear that Mr Stojanovski came to that belief because he alleged that Mr Mabey wished him good luck getting a hold of the representative.
2. In his statement, Mr Mabey said there was no requirement for him to provide more than

24 hours' notice so that union representative representation could be secured.

Mr Stojanovski's reaction - that Mr Mabey had been devious and that he had lost trust in

Mr Mabey, was thus based on a perception he held when he made the statement on

7 February 2025. He did not refer to this allegation when giving his history to Dr Kumagaya. 3. There are also some inconsistencies regarding what happened next. Mr Stojanovski said that he attended the 6 June 2024 meeting "by telephone." He said that present at the meeting were Mr Goddard, Mr Mabey "and Serge Sammut". His brother was unable to attend because of illness. 4. Mr Mabey said that "both [Mr Stojanovski] and Stephen [Goddard] attended the meeting on 6 June 2024. Chris did not attend as he alleged he was sick. Sergio Summit (sic), Group Human Resources also dialled in and attended the meeting remotely. I believe that Sergio took minutes of the meeting."[41] 5. Mr Sammut was unsure whether both Stojanovski brothers attended, he had no recollection of what was said meeting, and he took no notes. 6. Mr Goddard stated that Mr Stojanovski was present with his union representative, Peter Katar and that Mr Sammut attended virtually. Mr Goddard said that after the meeting he had a meeting with Mr Stojanovski and Mr Katar where it was agreed that the union would draft a letter. 7. Mr Stojanovski said that in response to a question from Mr Goddard regarding minutes,

Mr Stojanovski was told by Mr Sammut that he could take his own notes, which he did, because there was no union rep and "we were unsure of what they had planned for us." 8. The resulting notes were the subject of comment from both counsel. They are handwritten, extremely neat, and printed in capitals. From time to time in the document there are comments in parenthesis that indicate that they have been made subsequent to the meeting. Mr Morgan's concession that they indeed might not be the original notes was well made but it is clear that the content reflects in some detail a version of the discussion that was held between the participants, who were noted in this document to be "Steve, Bill, Jeff and Serge. (Chris off sick)." 9. Mr Stojanovski's statement, whilst alleging his disbelief that Mr Mabey was vague about the new role, is somewhat belied by the content of those minutes, which I am prepared to accept as being a version of the original notes. The comments in parenthesis throughout however are no more than somebody's interpretation of how he (or they) interpreted the comments at a later time. As there is no evidence as to exactly when those comments were made, it is possible that they were made after the onset of Mr Stojanovski's psychological injury and cannot be seen therefore as objective. 10. Mr Stojanovski's complaint was that the drivers were not provided with "much more information" than was given, and which he conceded was given. The document confirms that the proposed deployment was discussed in some detail. As was conceded in his statement, Mr Stojanovski was told about the rate of pay, the hours anticipated being worked, and that there would be a selection process if nobody applied. When Mr Stojanovski said it was not suitable, Mr Mabey enquired as to why, and was told that the pay rate, travel, tolls involved, the start time, the deliveries involved, the dogs and chains involved were unsuitable, and that Mr Stojanovski's health was very important, to which Mr Mabey replied "right." On its face such a response is unremarkable and although Mr Stojanovski later alleged that Mr Mabey had been extremely condescending and that he had humiliated Mr Stojanovski in front of his peers, there is no corroboration for that assertion, which again may have been the result of ruminations and distress caused by the later onset of Mr Stojanovski's psychological injury. 11. Mr Goddard in his statement said that Mr Mabey and Mr Summit "shunned our talking points." Mr Goddard was speaking at that point in terms of enquiries during the meeting about redundancy, but he did not support Mr Stojanovski's claim that Mr Mabey had been extremely condescending or that Mr Stojanovski complained of being humiliated. 12. In his statement Mr Mabey said that he did not prohibit a meeting with the Chullora manager, contrary to the content of the handwritten document, and said that had such a request been made, he would not have had an issue with it. Otherwise, he said that the concerns of

Mr Stojanovski and Mr Goddard were heard and that both he and Mr Sammut spoke at length about the details of the proposal. The handwritten document tends to confirm that statement. It may be that the comment attributed to him regarding the approach to the Chullora managers was made, but if it was, I do not see that as being in any way unreasonable in the context of the meeting as recorded by this document, nor do I find that conflict to be of any probative weight, as such minor differences can arise where a witness does not have access to contemporaneous material, which was the case with Mr Mabey. 13. A further denial by Mr Mabey that redundancies had not been retracted referred, presumably, to the alleged statement attributed to him that redundancies will not be offered. I accept

Mr Mabey's evidence in that regard, as it was not suggested in the handwritten document that redundancies were ever on offer. The only mention of redundancies in the handwritten document was said to have come from Mr Sammut, who was reported as saying:[42]

"Serge - talks about the heads of agreement, in Tolls opinion it is a suitable role for all 3 drivers, and redundancies will not be offered, that's important to remember, so will be sending letters for 2 to transfer."

1. At this stage, 6 June 2024, there was no suggestion that Mr Stojanovski was suffering a psychological illness. Mr Stojanovski complained on 12 June 2024 that he needed a break because he was tired and had lost confidence as a truck driver to Dr Kuzmanovski. The background to that attendance may well have been the receipt of the notice from the employer dated 11 June 2024 that set up a meeting for 13 June 2024 with Mr Stojanovski. As indicated, the notice stated, "a Transport Worker will not be entitled to a severance payment if Toll obtains for them suitable alternative employment."[43]As also noted, a certificate was issued by Dr Kuzmanovski on 12 June 2024, but Dr Kuzmanovski did not appear to be aware of the proposed meeting for 13 June 2024.
2. Mr Stojanovski stated that he and his brother were unwell on 13 June 2024, and Mr Mabey noted that the meeting never went ahead, as the Transport Workers Union had placed the redeployment in dispute. Although Mr Stojanovski said that he and his brother were expecting a telephone call "as scheduled" whilst off sick, and that no explanation was provided why the meeting did not occur, I find Mr Stojanovski's assertion to be disingenuous and fanciful. There was no scheduled telephone conversation (the notice spoke of a meeting), and the reason the meeting did not take place was because he and his brother were off sick. I have no reason to disbelieve Mr Mabey's evidence, supported as it is by contemporaneous documentation.
3. The dispute was set out in a letter signed by Mr Katar for the TWU dated 18 June 2024. It included many of the issues raised in the 6 June 2024 meeting, and claimed that the offer for redeployment was not suitable employment. The matter went before the Fair Work Commission, which handed down its decision on 27 October 2023.
4. Before moving to this aspect of the case it is useful to recapitulate the above inconsistencies about this meeting.
5. Firstly, Mr Stojanovski stated that he attended by telephone, whilst Mr Mabey and

Mr Goddard said he was present, as did the handwritten document. 6. Secondly, Mr Stojanovski stated that he was distressed by the short notice, which prevented him from arranging any union representation, yet Mr Goddard said that the union representative, Mr Katar, was present, and that they had a meeting afterwards whereby it was agreed that the Union would write a letter - presumably that of 18 June 2024. 7. Thirdly, Mr Stojanovski said that Mr Sammut was present, whilst the other witnesses said

Mr Sammut attended on the phone. There was also some confusion as to whether

Mr Sammut took minutes - he said he did not, Mr Mabey said he believed Mr Sammut had. 8. Accordingly, the reliability of the detail of the allegations at this meeting are somewhat doubtful, although its general tenor was discernible enough, namely, that it was a meeting about the offer by the employer of suitable employment to continue to engage its long-term drivers, and thus about transfer.

1. On one view, as noted by Dr Sherman, the premise of Mr Stojanovski's claim is illogical. His injury had allegedly been caused because he had been offered further suitable employment when the contract under which he had been hired since 2010 expired on 30 June 2024. Such actions by an employer could hardly be described as unreasonable. Mr Morgan described the Chullora jobs as being "pretend jobs," designed to "skirt around" the employer's obligations to these three long term employees and "to be suitable to the wording of the EBA."
2. I disagree, with respect. The employer's efforts were genuine, to the point that the Stojanovski brothers were due to start at Chullora on 1 July 2024 in employment, the details of which were spelt out at the 6 June 2024 meeting.
3. Mr Stojanovski had refused to accept this offer under the mistaken belief that it was unreasonable within the terms of the employment contract. I have reproduced the relevant clause of the EBA above, and noted Deputy President Easton's useful explanation as to its practical effect, to repeat:

"The Toll - TWU Enterprise Agreement 2023-2026 (the Agreement) provides for very generous redundancy payments but contains a carveout where Toll 'obtains ... suitable alternative employment' mm for the redundant employee. The dispute is about whether Toll has obtained suitable alternative employment for the Stojanovskis."

1. Mr Morgan's submissions were directed to the meeting of 6 June 2024, on the basis

Mr Stojanovski's injury was caused by Mr Mabey's refusal to accept his arguments (and those of Mr Goddard) that the proposed deployment was unsuitable alternative employment. It was the action of transferring Mr Stojanovski to the Chullora plant, made plain by

Mr Mabey's notice of 11 June 2024, that caused the injury following this meeting. 2. The Fair Work Commission proceedings were set in train by the letter from Mr Katar dated 18 June 2024. Mr Stojanovski's attendance on Dr Kuzmanovski complaining of a sore right shoulder on 26 June 2024 may or may not have been related to that impending claim, but it was on 23 July 2024 that he first gave the history to Dr Kuzmanovski regarding the end of the contract. As indicated above, Dr Kuzmanovski recorded that a job interstate had been offered and that Mr Stojanovski felt uncomfortable. It was also recorded that he was taking the company to the Fair Work Commission, and that:

"He wants to get the redundancy until he finds a new job."

1. It was on this occasion that Mr Stojanovski was diagnosed with an adjustment disorder by

Dr Kuzmanovski. 2. I found Mr Mabey and Mr Sammut to give professional and detailed statements. Mr Morgan's complaint that they were acting under the terms of the Enterprise Bargaining Agreement to enforce its terms was quite correct, and it was part of their duties as Business Operations Manager and Senior Human Resources People Partner respectively to do so. The actions taken to comply with this agreed instrument between the workforce and Toll management were reasonable. Mr Stojanovski was notified in writing of every stage in the process, and management held two meetings on 9 May 2024 and 6 June 2024, to consult with him, under cl 14 of the Toll-TWU Enterprise Agreement 2023 -2026 (as advised in Mr Katar's letter of

18 June 2024). A third meeting was not possible because Mr Stojanovski was off sick on

13 June 2024. 3. Mr Mabey summed up the motive behind Mr Stojanovski's actions accurately when he said, as noted above:

"t. It was clear to me during the meeting that neither Stephen or Bill wanted to work at Chullora, NSW. It was plainly obvious that they were simply trying to raise objections about being offered such work because it would mean that they would forgo a large redundancy payout. On this note, it was common knowledge amongst the drivers that alternative work could easily be secured by another transport provider as there is a shortage of HC drivers. Thus, the men wanted to secure the redundancy and its large payout and then secure work elsewhere. It is for this reason I believe both Chris and Bill have lodged their claims - they are annoyed they were not made redundant and instead being offered suitable alternative positions."

1. It is unfortunate that this situation has resulted in Mr Stojanovski's injury. I am satisfied however that the respondent has met its onus of proving that whole or predominant cause of Mr Stojanovski's psychological injury were the actions by Toll with respect to his transfer, dismissal or retrenchment, which I am satisfied were reasonable. I have already rejected the opinion of Dr Kumagaya, and I prefer that of Dr Sherman, who summed up Mr Stojanovski's situation neatly when he found:[44]

"As the Deputy President of The Fair Work Commission pointed out in his findings, there are some factors weighing against the proposed deployment. These, in particular, related to Issues to do with the claimant's family time and ability to help his parents. It is his perception of the difficulties caused by this and his dissatisfaction with the lifestyle changes that it might entail that have caused him to become unwell and for which he requires treatment to be able to return successfully to the workplace."

1. Finally, it should be said that I do not for a moment suggest that Mr Stojanovski has deliberately sought to mislead the Commission, and I have no doubt that he was attempting to give a measured account of what he experienced. However, one's memory of past events does not reflect those events with as much reliability as, say, a contemporaneous photograph does. Memory can be affected by subsequent perceptions and be reconstructed by them - especially where the witness has an interest in the outcome. Mr Stojanovski's statement was made on 7 February 2025. At this time, he had lost his application to the Fair Work Commission; he was not given the redundancy package he wanted; and he had been having treatment for his psychological condition since November 2024. These matters have probably caused him to reconstruct his memory as to the effects of the events he now perceives.

[5] These may be the handwritten notes at ARD page 28, referred to below.

[29] Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998.

[30] Northern NSW Local Health Network v Heggie [2013] NSWCA 255.

[31] Mr Morgan continued to refer to "the employees", or "the workers" rather than Mr Stojanovski individually.

[34] [2009] NSWCA 227.

[35] [2004] NSWCA 34.

[36] [2016] NSWWCCPD 50.

[38] [2025] NSWPICPD 39 from [95].