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

1. John Varchione's (the applicant) employment with Employers Mutual Management Pty Ltd (the respondent) was terminated on 29 January 2025 for serious misconduct after it determined he engaged in "time theft" and Code of Conduct breaches whilst working from home (WFH).
2. He lodged a claim for workers compensation maintaining psychological injury as a result of "bullying and harassment" by his manager prior to termination. Weekly compensation and treatment expenses are claimed from 31 January 2025.
3. The respondent's insurer assessed the claim. In various dispute notices, it denied liability on the basis that injury was wholly or predominantly caused by the reasonable actions of the respondent with respect to discipline/dismissal - s 11A of the Workers Compensation Act 1987 (the 1987 Act).
4. Proceedings were filed in the Personal Injury Commission (Commission). The matter underwent the usual case management pathway ultimately proceeding to conciliation/arbitration at which time Mr Barter of counsel instructed by Ms Petkovic represented the applicant. Mr Stiles of counsel instructed by Mr Lee represented the respondent. Mr Padas was the insurer representative.
5. Injury and pre-injury average weekly earnings (PIAWE) are not in dispute. The issue that requires determination is whether the psychological injury was wholly or predominantly caused by the respondent's reasonable actions with respect to dismissal.
6. In the course of decision making, I had regard to the documentary evidence which included the Application to Resolve a Dispute (ARD), Reply, Applications to Lodge Additional Documents (ALAD) filed by the applicant and respondent on 20 November 2025 and the oral evidence of Mr Sagun Shrestha, Security & Infrastructure Specialist employed by the respondent.

1. In a statement dated 24 September 2025[1] the applicant confirmed a history of anxiety connected with his marital breakdown. He commenced employment with the respondent as a technical specialist in 2018, being promoted to technical leader in January 2019 and ultimately manager in February 2022 with almost 60 people at various levels under his charge. All was well until late 2024. He had been praised on customer service and work capacity decision quality by his supervisor Ms Medway. He had not been informed of any issues with his work or performance. Voice of Employee Surveys (VOE) completed quarterly by staff under his charge generally scored 100% satisfaction from his team leaders and 80% from his group overall.
2. He maintains that he was bullied by Ms Medway between September 2024 and January 2025. Examples of such behaviour were:

(a) targeting and humiliation;

(b) belittling of his role as a manager, especially at a leadership day in November 2024;

(c) making disparaging comments of other staff, and

(d) implementing a culture of surveillance.

1. He recounts a meeting on 14 January 2025 with Ms Medway and others. He was taken by surprise as he thought he was being called in to discuss a privacy breach by one of his staff. Instead he was accused of time theft by using a mouse jiggler and in a subsequent meeting his online time and productivity was queried.
2. He recalls he started to experience anxiety from work events in about late November to early December 2024. He could not sleep, had variable levels of energy, concentration and motivation and was scared to approach Ms Medway to discuss these matters. He did not escalate his concerns as he needed to "survive and continue providing for my family". He rarely visited the doctor and only sought treatment as the "meeting was the final straw".
3. He attended his doctor on 18 January 2025 after the initial performance meetings and was given a mental health plan. Sleeping tablets were prescribed. He consulted his doctor on

31 January 2025 with "worsening mental health due to the alleged accusations and termination". He repeats he had never received any warnings or feedback prior and was "blindsided and targeted". 4. The balance of the statement recounts the effect the termination has had on his psychological, personal, social and financial welfare.

1. Certificates of Capacity have been issued by Dr Sameh Shabayek from 31 January 2025 to 26 November 2025. He diagnoses no current work capacity (ongoing) due to adjustment disorder arising from "bulling and harassment".[2] The certificates confirm the first consultation was 18 January 2025 following a meeting on 14 January 2025 relating to allegations of "fraudulent action and felt humiliated by the way it was handled".[3]
2. The clinical note of the presentation on 18 January 2025 states "claimed that at work they bullied him. Suspended until further investigations, increased stress over last days due to what happened at work. Will consider work cover".[4]
3. The clinical note following presentation on 31 January 2025 records "ongoing worsening mental health due to the alleged accusations and termination".[5]
4. A review of the earlier consultations records show no prior workplace complaints although psychological symptoms were documented arising out of marital tension from 2022.[6]
5. Luke Simmons psychologist reported on 25 March 2025 and reported moderate depression, anxiety and stress symptoms. The precipitating factor was "change in senior management, leading up to allegations of using a mouse jiggler to prevent activity tracking, and subsequent termination likely triggered current symptoms".[7]
6. Dr Younan, consultant psychiatrist was qualified by the respondent on 2 April 2025.[8] The applicant relies on the report. Dr Younan took a consistent history recorded in the applicant's statement above. The applicant informed him that the actions of management were "passive" and "done in a smiling assassin way" with "subtle coercive strategies in a manner that would outwardly appear to be professional".[9] He confirmed the applicant did not seek treatment prior to the disciplinary meeting "as he thought he would be able to work through it at that point". He diagnosed adjustment disorder. He considered 70% of the injury was due to the experience of feeling unsettled at witnessing the manager deal with other employees and wondering if he also was being subject to negative attention and 30% due to the disciplinary process. He considered the applicant totally incapacitated for work due to concentration issues. He then concluded (unedited):

"on balance, I consider the predominant cause of his injury to be due to the negative interactions occurring subsequent to the employment of the new manager with his injury being precipitated by the disciplinary meeting."[10]

1. In his supplementary report dated 6 May 2025 [11]he reported:

"I consider that there had been an adverse cycle of interaction which escalated the meetings. I consider it likely that the worker felt he was unfairly scrutinised, whereas the manager felt there were concerns about his performance. I consider it likely that this cycle continued to escalate until the meetings which precipitated his injury....

I consider that the meeting could be seen in colloquial terms as "the straw that broke the camel's back". There was a cycle of negative interactions which continued to escalate till the disciplinary meeting beyond which the claimant was no longer able to cope..."

1. In a further and final supplementary report, Dr Younan concluded that in the event there were no adverse interactions with members of staff prior to the disciplinary meeting on

"the disciplinary process and dismissal would have been the predominant cause of the psychological decompensation."[12]

1. On his promotion to Manager, SME, the applicant signed an employment contract on

4 November 2022.[13] It is a lengthy document with the usual caveats but the clauses relevant to the termination include:

6.1. Your total weekly hours for this role are 37.5.

6.2 The Company may require you to work additional hours on occasion. Your remuneration has been set to accommodate such occasions."

15.8. The Company may terminate your employment summarily and without notice for serious misconduct.

15.9. Serious misconduct will include, but is not limited to:

(h) ongoing breach of your obligations as set out in this Contract without rectifying such breach within 7 days of receiving notice of the breach;

(i) performing your work in a manner reasonably considered to be unprofessional;

(k) a refusal to follow a lawful and reasonable direction;

(l) engaging in conduct which reasonably considers is likely to damage the Company's reputation;

(m) committing any act of dishonesty including acts of embezzlement, theft or fraud involving the Company's assets or property; or

(n) any conduct that would justify summary dismissal at common law."

1. The respondent commenced an investigation into the applicant's conduct as an employee. It alleges that he breached the terms of his employment contract in a number of areas but specifically two allegations were raised; relevantly:

(a) allegation one - he had engaged in the use of a "mouse jiggler" adapter or similar device between July 2023 to December 2024 which artificially inflated his online activity. The behaviour was deemed to be a breach of duty of fidelity and good faith. The respondent notified the applicant that if "such alleged fraudulent behaviour was substantiated" it has the potential to "impact EML's trust and confidence in your ability to fulfil your duties as a Manager" being proper grounds for dismissal, and

(b) allegation two - between 19 December 2024 and 6 January 2025 there was an observed "alleged marked discrepancy between the level of productivity expected from your role and your actual performance whilst working from home" with the investigation revealing that "whilst working from home, your productivity significantly falls short of your obligations".

1. In response to allegations one and two noted above, the applicant responded that he:[14]
   • had been a dedicated employee of EML for seven years;
   • has never received an adverse performance review and has consistently been a reliable and capable performer;
   • had received positive surveys through VOE and positive feedback from his team members;
   • had not received any feedback with regards to his team and had this been brought to his attention, he would have worked on those concerns to ensure he was providing appropriate support the team was seeking and welcomed direct feedback to assist in his professional development;
   • denied using a mouse jiggler and did not 'wilfully or deliberately prevent my computer from locking to artificially inflate active time'. The mouse was given to him by his ex-father in law;
   • was currently experiencing a difficult divorce and had attempted not to destabilise his five children under the age of 10 who he had equal custody of, and
   • was committed to resolving the matter constructively and hoped that his seven years of dedicated service and commitment would be taken into consideration.
2. During face to face disciplinary interviews, as regards allegation one, the applicant informed the respondent he was unaware of a "jiggler" and was using a mouse that had previously been owned by his father-in-law.
3. As regards allegation two, the applicant accepted the respondent's statement he had received 142 emails, sent 17 emails (including three personal emails) and made 18 calls between 19 December 2024 and 6 January 2025 (18 days). (I note this accounts for a total of eight working days, the balance being consumed by weekends and public holidays.) He maintained that these were not indicative of overall performance or output especially as it was a quiet time of the year.

1. Having considered the applicant's response the respondent terminated the applicant's employment. In giving reasons it stated (unedited):

"A review of the screen recordings for the same period, shows minimal activity, despite Outlook, Teams and various reports and programs such as PIAWE, Guidewire and Excel being open. There is no evidence of work output being produced or any meaningful work related tasks being undertaken. The screen recordings indicate that you commenced work between 8.00am and 9.00am and finished between 4.00pm and 5.00pm. However, the investigation reveals that whilst working from home, your productivity falls short of your obligations. This raises concerns about how you are managing your time and what tasks you are focusing on during work hours.

If substantiated, this pattern of conduct does not align with the duties and responsibilities that you have agreed to as an EML employee, particularly as outlined in Clause 5 of your employment contract. More specifically,

(a) Clause 5.1 provides that "during work hours, you are required to devote all of your working time and attention to your employment with the company,

(b) Clause 5.2 provides that 'you must perform your duties and responsibilities with due care and skill and in a thorough and co-operative, proper, ethical, diligent, professional and efficient manager, including always acting in good faith and in the best interests of the company and

(c) You must serve the company honestly and faithfully. ...

Your noticeably low level of activity is not only impermissible but also directly interferes with the quality of service we extend to our clients.... Your alleged reduced productivity and lack of engagement can interfere with the quality of service we extend to our clients and has the potential to obstruct the prompt and efficient assistance these individuals need. Furthermore, if substantiated, your actions could severely undermine the trust and confidence that EML, your colleagues and our customers place in you and the trust and confidence in your ability to fulfil your duties as a manager....

Furthermore, if substantiated, your actions infringe upon EML's Work From Home Policy, which mandates that employees whilst working from home "are required to observe all EML Policies and Procedures as well as be available and present for work during work hours." (my emphasis)

1. On review of the notes arising from the meetings, I note that in relation to allegation one, (the use of the mouse jiggler) that a "neutral consideration" status was applied to the findings, which I understand to mean that this allegation did not play a significant role in the decision making regarding termination by the respondent.
2. In regards to allegation two, the claims of "time theft" were found to have been "substantiated" [15] with the respondent relying on the following (unedited):

"● You denied engaging in time theft and stated you have continued to fulfil your contractual obligations. The evidence gathered and reviewed as part of our investigation however shows a marked discrepancy between your assertions and EML's expectations of productivity from a Manager.

• EML acknowledge that the period between Christmas and New Year is typically quieter, which is why the investigation focused on the time before and after this period...Additionally, EML did not review your productivity on Tuesday 31 December 2024, nor was weight placed on the days reviewed between Christmas and Monday 6 January 2025. (my emphasis).
• EML reject your assertion that you are "actually sitting there, doing work, so the computer doesn't lock". This is in direct contrast to EML's evidence. EML's thorough investigation unearthed significant periods of time where no work was being completed which equates to time theft. You were unable to explain these discrepancies.
• You acknowledged your understanding of the Working from Home Policy and confirmed that "you're doing the same stuff, you're not doing anything different, further reinforcing that the expectations are the same regardless of work location.
• EML's evidentiary case provides a sound, logical and rational foundation, for this allegation to be substantiated and validates the claim that you have committed time theft whilst working from home.
• EML was disappointed that despite the evidence provided to you, your responses were lacking in contrition and accountability and you failed to acknowledge any wrongdoing on your part.
• Regrettably, there has been an irreconcilable breakdown in EML's trust and confidence in your ability to fulfil your duties as a manager.
• EML are satisfied, by your own admission, that you have a thorough understanding of our policies and procedures as they relate to acceptable and lawful behaviour in the workplace. Your actions, however, are in direct contradiction to said policies and requirements.
• ...Unfortunately, after much deliberation, the substantiated allegations have broken our trust and confidence in your professional integrity, your adherence to EML's Guidelines, and consequently your suitability and ability to fulfil your duties as a manager.
• EML carefully considered all alternatives and explored all options in relation to your employment and potential disciplinary outcomes, prior to proceeding with a final outcome. However, considering the seriousness of your misconduct (my emphasis) and the training you've received, EML have no alternative but to terminate your employment effective Wednesday 29 January 2025."

Statement of Nicole Medway - Direct Supervisor and Senior Manager

1. The statement of Ms Medway dated 13 March 2025 is extensive.[16] Relevantly she states:
   • she became the applicant's manager in about October 2024;
   • he was stood down due to serious breach of his employment contract;
   • ordinarily he would be required to work five days per fortnight in the office, however acknowledging the applicant's custody arrangements as a single father, approval was given to work four days per fortnight in the office;
   • the applicant was capable and skilled to do the role but was lazy and did not do his job;
   • she was surprised he was promoted to the position of Manager as she did not think he was qualified;
   • prior to becoming his manager she noted his performance was not strong;
   • he was not performance managed prior to October 2024, although was moved to a "high performing group which she managed; he was still a very low performer but the group got by as a whole due to the rest of the team being very good performers";
   • she watched "around 50 hours of screen recording which showed he wasn't actually working. As a result, he was terminated for wage theft/breach of contract and the claimant would have been well aware that this was illegal. When I questioned him about what he actually did, he was practically unable to demonstrate that he had been doing any work";
   • he was rostered to work a nine day fortnight, the expectation was that he worked 7.30am to 5.00pm;
   • he underwent half yearly performance appraisals in February and August but she had never conducted a performance appraisal of him;
   • in the August 2024 performance appraisal conducted by Cath Moore he was marked as "meeting expectations; he was in a group of good performers";
   • prior to this claim she had not counselled him for any work performance duties;
   • his direct reports confidentially informed her that they did not feel supported by the applicant;
   • as a manager she went to great lengths to be accommodating towards the claimant, and
   • she denies bullying the claimant.

1. Attached to the Reply is WFH data which encapsulates Work Activity Monitoring (WAM).[17] The first graph represents the applicant's WAM between 13 July 2023 to 13 December 2024. The second graph incorporates comparative data for others WFH managers including Dan, Jess, Naomi and Steph. Their data is averaged and commences on 2 November 2023 and ceases on 2 December 2024.
2. Counsel and the respondent's witness were unable to assist me with the interpretation of this data. On careful analysis, I find the comparative data to be of no forensic utility. This is because the comparative data of four other WFH managers ceases two weeks prior to the applicant's data and so cannot be said to be a true comparison. Further the comparison data averages the WAM of four other managers. It is unknown what the work arrangements or the absences of those managers were. In any event, the 'serious misconduct' events leading to the ultimate termination were said to occur between 19 December 2024 to 6 January 2025 and so this data is redundant and I have given it no weight.
3. There is WFH data recorded between 13 July 2023 to 23 December 2024.[18] I assume this belongs to the applicant however surprisingly the report does not specify this. Again the data ceases on 23 December 2024 and fails to cover the entire period of the investigation which commenced on 19 December 2024 to 6 January 2025. I undertook a year to date comparison from the data available on the assumption that this data belonged to the applicant. This revealed:

1. There is no information in the papers as to what constitutes the WFH Active time represented above and nor how this data was collected. The data in the first row is similar despite being a year apart. The last two rows have significant differences.

1. Mr Shrestha gave oral evidence at the arbitration. I found him to be a credible witness who stated the facts without embellishment. To the extent that it overlapped his oral evidence was consistent with his investigation findings in the papers. He impressed me with his knowledge of IT and his ability to professionally distil complex issues simply.
2. On specific questioning Mr Shrestha testified:
   • he is employed in the Security & Infrastructure unit for the respondent;
   • he was asked by Nicole Medway to review the online activities of the applicant on 19, 23 and 24 December 2024;
   • on review of the activities he suspected a mouse jiggler was used. This is a device that can be operated either via software or hardware to activate a computer artificially after periods of inactivity, representing "online status". The applicant's laptop was issued by the respondent and so he was able to remotely review and access activity reports;
   • he identified that no software was installed which would activate a mouse jiggler and in any event the respondent's security infrastructure would not allow that;
   • on review of the activity reports, he suspected a mouse jiggler was employed via hardware which could not be detected by the respondent. He explained his suspicion was likely correct because he observed that at varying intervals, the mouse moved the curser on screen, however randomly and robotically. The movement of the curser via the mouse was not to any particular activity on the screen but was scrambled reinforcing his view that the movement was artificially generated;
   • he accepted that it is difficult to detect a hardware based mouse jiggler but not impossible;
   • his role was to action the request of management, identify unusual patterns and report them. Subsequent steps belonged to others;
   • he accepted movement of a mouse in such a scrambled fashion may have occurred due to a defective mouse but did consider it unlikely given the pattern of movement he observed;
   • on my specific questioning, he confirmed that online patterns of "jiggle activity" between WFH and office attendance were not compared as he was not instructed to do this, and
   • also at my questioning, I asked whether he could interpret the WFH data found on folio's 35, 36 and 37 of the Reply. He indicated he did not generate this data and could not answer my question.

1. In summary, counsel for the respondent submitted:

(a) injury is not in dispute. The respondent accepts the applicant sustained an injury within the definition of s 4b of the 1987 Act but seeks to rely on the defence found in s 11A of the 1987 Act with regards to dismissal;

(b) the respondent understands that it bears the onus of establishing that employment was the whole or predominant cause of injury and also that its conduct was reasonable. It is satisfied it can easily meet that onus;

(c) the evidence demonstrates the whole or predominant cause that give rise to the applicant's injury was the dismissal process;

(d) whilst the applicant claims his psychological injury was the result of bullying and harassment, his claims are vague and non-specific and there is no evidence of any contemporaneous complaint either to his employer or his doctor. The notification of psychological complaints and subsequent incapacity align with the disciplinary/dismissal process which was wholly or predominantly the cause for any psychological injury and incapacity;

(e) the actions taken by the respondent were objective and reasonable and the way the respondent dealt with the situation was fair, the applicant was given a summary of key issues the respondent required him to respond to and he was given sufficient time to respond, and

(f) PIAWE is not in dispute.

(a) the respondent has not made out the s 11A defence. All of the medical evidence supports the applicant sustained psychological injury as a result of bullying and harassment and close examination of the conduct of the supervisor validates the claims of the applicant;

(b) the applicant is credible. His history has been consistent. The applicant accepts that he did not attend upon his doctor earlier for psychological distress, instead opting to self-manage and avoiding any such complaint for fear of repercussions at the hand of his supervisor;

(c) there are more similarities than differences in the medical opinion of the applicant and the respondent. There is no dispute the applicant is totally incapacitated for work on account of adjustment disorder arising from the behaviour of his supervisor;

(d) the respondent's actions were not reasonable. It understood that the applicant was vulnerable on account of his difficult domestic circumstances. If there was a query about his work output he should have been given support and assistance, placed on a personal improvement plan or given an opportunity to correct any behaviour that did not align with his supervisor's requirements. He was not given an opportunity to do so and more importantly was not alerted to any issues prior to the instigation of surveillance of his online activity, and

(e) the evidence the respondent relied upon to terminate the applicant is suboptimal and speculative at best and far from reasonable given the applicant's exemplary standing as an employee and senior position.

1. In reply, counsel for the respondent submitted:

(a) the temporal connection between incapacity and dismissal needs to be reviewed closely. There were no prior documented complaints of psychological injury, and

(b) the actions of the respondent were more than reasonable. The applicant's position with the respondent held sufficient responsibility and the respondent was required to take action. The applicant has adopted an ideology of mistreatment via bullying and harassment which has not been established on the evidence.

1. The law relevant to this application is found in the 1987 Act.
2. A psychological injury must satisfy the definition of injury within the meaning of s 4 of the 1987 Act (relevantly):

(a) means personal injury arising out of or in the course of employment,

(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and

(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease..."

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

1. This is defined in s 11A (3A) of the 1987 Act as:

"'psychological injury' is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system."

1. This term is not defined by the Act. Review of the case law establishes the following:

(a) "wholly" and "predominantly" are separate concepts and only one of the definitions needs to be satisfied. The words are independent of each other;

(b) it is generally accepted that it means "mainly or principally caused"[19] (Poonan);

(c) the question of causation must be addressed by medical evidence

(d) causation is a question of fact to be determined on the evidence in each case (Kooragang).[21]

1. Again, not defined by the Act and difficult to succinctly outline, however the following non exhaustive summary of key principles are acknowledged:

(a) an employer bears the burden of proving that the action with respect to discipline was reasonable (Heggie);[22]

(b) in determining whether conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and employer (Rashov);[23]

(c) the test is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all circumstances, by questions of fairness (Irwin);[24]

(d) when considering the concept of reasonable action a decision maker is required to have regard not only to the end result but to the manner in which it was effected (Ivanisevic);[25]

(e) the reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time the action is taken (Heggie);[26]

(f) procedural and policy documents of the employer will be relevant evidence to consider. However, reasonableness will not be established simply because the employer complied with their own protocols if those protocols were not reasonable (Aravanopules),[27]and

(g) the concept of reasonableness does not require a counsel of perfection. It requires, that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not[28] (Van Vliet).

Did injury arise wholly or predominantly from the respondent's actions with respect to dismissal?

1. The applicant maintains systemic bullying and harassment by his supervisor was the main contributing factor or alternatively the substantial contributing factor to the development of his psychological injury. I disagree. The evidence relating to bullying and harassment is non-descript. His statement does not articulate with any sufficient detail what events he considers constitute bullying and harassment nor the contemporaneous sequelae. The term bullying and harassment is wide and a mere declaration that behaviour falls within such a term is without specific details of dates, times and events is insufficient. A disagreement or dislike of a management style or approach of itself does not fall within the ambit of bullying and harassment. I find this to be especially so in these circumstances as the applicant is an experienced workers compensation manager who had charge of over 60 staff. Not only was he a manager but prior to that he was a technical officer which would no doubt have exposed him to similar circumstances where he would be aware that dates, times, file notes and contemporaneous records are essential in establishing causation.
2. I agree with the respondent that the applicant has not given any sufficient particulars of events prior to the disciplinary/dismissal process that would account for the development or manifestation of his psychological symptoms.
3. I have also noted the timeframe and actions in this matter. Had the applicant not been subject to the disciplinary process, and his employment status quo preserved, more likely than not the applicant would have continued to work. He only sought treatment when the disciplinary action commenced and serious allegations of time theft/fraud were made. His statement also confirms the "meeting was the final straw" and prior to that he was unaware of any issues affecting his performance. So whilst his statement does suggest that the management style of his supervisor was unpleasant, the medical and statement evidence suggests 'injury' did not occur until the disciplinary process began. This is consistent with the qualified evidence that the "meeting precipitated the injury".
4. For these reasons, I find that the applicant's injury was wholly or predominantly caused by the disciplinary process.

Was reasonable action taken by the respondent with respect to dismissal?

1. I will now proceed to assess whether the actions of the respondent were "reasonable action" with reference to the authorities summarised in paragraph 44 above, and with reference to s 11A noting that it is axiomatic that each case turns on its own facts.
2. The termination was brought about as the respondent alleges the applicant engaged in 'serious misconduct' including but not limited to 'time theft'. This is a serious allegation especially given that the applicant works in the financial services industry. The insurance industry is a highly regulated niche market. The allegation of time theft and breaches of codes of conduct is significant. Time theft is salary theft. An allegation of this seriousness requires exhaustive and robust investigation and to successfully prosecute such a matter a higher onus of proof to be satisfied. What this means, in the context of this matter, is that in assessing whether the respondent had engaged in 'reasonable action', the respondent needs to demonstrate it engaged in sufficient enquiry to establish the serious misconduct and that the ultimate conclusion had not been produced by inexact proof, indefinite testimony or indirect inferences.[29]
3. A number of facts don't add up in this matter. I find that some of Ms Medway's statements are incompatible with the employment of the applicant. Ms Medway labours the point that the applicant was a poor performer yet this is inconsistent with;

(a) the applicant's past promotions;

(b) positive past performance reviews (performed twice yearly) where he was recorded as 'meeting expectations;

(c) the results of his VOE surveys where he obtained a 100% score of satisfaction from his team leaders and 80% from the balance of his team;

(d) the lack of performance review in the past or immediately prior to the disciplinary meetings;

(e) the privilege of only being required to attend the office four days per fortnight whereas other managers at his level had to attend the office five days per fortnight, and

(f) his transfer to a high performing group in October 2024.

1. I find that the respondent's actions in allowing the applicant greater WFH flexibility as compared to his at level peers demonstrates a trust in his abilities and performance capabilities. This trust and capability also aligns with his transfer to a high performing group, positive past performance reviews and VOE surveys. Ms Medway was summonsed but was not called to give evidence at the Arbitration. Whether her statements are self-serving or embellished are unknown but I do find they are inconsistent with the state of affairs prior to the disciplinary meeting.
2. Ms Medway alleged that the applicant was perhaps employing the use of a mouse jiggler to artificially inflate his online work participation. The evidence of Mr Shrestha confirmed that this was not conclusively established but highly suspected, realistically more probable than not. The applicant denies the use of such hardware or software. In her statement

Ms Medway maintained she viewed over 50 hours of online activity, which showed the applicant was not working. During the course of the formal disciplinary interview, Ms Medway informed the applicant that she reviewed over 40 hours of online activity. The applicant responded to claims of inactivity by stating that he was at his computer; it was a quiet time of the year and that he was doing other work that may not have necessarily involved the use of the various applications subject to surveillance. In addition, the log in records and sporadic responses to emails show that the applicant was "available and present" for work during core hours consistent with his obligations under the WFH policy. 3. Ultimately the letter of termination considered Allegation One (the use of the mouse jiggler) as a neutral consideration in the ultimate decision to terminate employment. So whilst much has been said on the alleged use of a mouse jiggler to artificially inflate online activity, this does not appear to be the main consideration in the decision to terminate employment. However, it is important to emphasise the applicant's work performance whilst on site was not assessed. It was understood that he used the same laptop and mouse both at home and in the office. Given the seriousness of this allegation, a prudent investigation would have considered the use of such hardware both in the office and whilst working from home. I would also find it 'reasonable action' for the mouse to have been relinquished to the IT department for inspection and replaced with a company issued device especially to better understand how the allegation impacted the applicant's work performance given that he had met targets consistently. This action would have either reinforced the respondent's position or alternatively discounted it in whole or in part. This was not done. This coupled with the fact that it has still not been conclusively established the applicant employed the use of this hardware are presumably reasons why the allegation was a 'neutral one'. 4. Further, the allegation is that the use of the 'mouse jiggler' possibly commenced as early as March 2024[30] with the statistics showing that online time was almost double what it previously was. This may or may not be the case, but I fail to understand what benefit was derived by the applicant by the use of a mouse jiggler. Certainly it may give the impression he was active on line at times when he was not, however his performance appraisal in August 2024 confirmed he was meeting expectations. His VOE results were above satisfactory. There is no evidence that his KPI's were not being met. There was no evidence of complaints in relation to delays of various employment obligations. In short, the records show the applicant was still performing to a satisfactory standard. Performance is measured against the achievement of clearly set and agreed to KPI's and not solely on online time. If the work is being done, and done to a standard that met expectations, I cannot see what was gained by the allegation of the use of a mouse jiggler. I appreciate the respondent submits such actions could severely undermine the trust and confidence, however there were no shortcomings identified in performance either with or without the use of the mouse jiggler. 5. The second allegation which resulted in a finding of serious misconduct was "time theft". The applicant accepted the respondent's statement he had received 142 emails, sent 17 emails (including three personal emails) and made 18 calls between 19 December 2024 and

6 January 2025 (18 days). (I note this accounts for a total of eight working days, the balance being consumed by weekends and public holidays.) 6. Further in its letter of termination, the respondent stated:

"EML acknowledge that the period between Christmas and New Year is typically quieter, which is why the investigation focused on the time before and after this period...Additionally, EML did not review your productivity on Tuesday 31 December 2024, nor was weight placed on the days reviewed between Christmas and Monday 6 January 2025."

1. Given the exclusion of the above days as part of the investigation, I understand this to mean the "time theft" allegation is then contained to the following days:
   • Thursday 19 December 2024;
   • Friday 20 December 2024;
   • Monday 23 December 2024, and
   • Tuesday 24 December 2024 (Christmas Eve).
2. An allegation of "time theft", ironically actually requires time to establish. An adequate investigation and 'reasonable action' would at a bare minimum require and allow a sufficient period of time, identified shortfalls in performance as a result of such theft, identify trends and patterns arising out of that theft and have undertaken a comparative analysis of previous years to establish true time theft and fraud. The failure to do this not only means that the respondent has only acted on minimal evidence but has failed to give the applicant the opportunity to fully respond the allegations in the context of his overall employment duties, denying him procedural fairness. (Rashov) (Irwin) (Ivanisevic).
3. I find it beggars belief that a serious allegation of time theft, ultimately resulting in termination on the basis of serious misconduct was ultimately confined to an investigation over a period of four days at the one of the quieter times of the year for the insurance industry. (This is especially so given the applicant's pronouncement that it is a quieter time of the year and the respondent conceding this.) More so, the allegation of time theft is made on the basis and the sole reliance of apparent inactivity online and does not arise from complaints of missed deadlines/timeframes or complaints raised by either staff, claimants or third parties relating to an inability to contact the applicant. There was a failure to use data from prior years to compare performance; especially given the investigation was undertaken during a quieter time of year. The allegation is serious. The respondent needed to satisfy itself that there was a true pattern of time theft. It could only do so by the analysis of past year data or peer data for the same period. I find this is not reasonable action as it lacks fairness because it does not give the applicant an ability to properly respond (Irwin) to claims relating to his performance overall and globally_._
4. The respondent relies heavily on the amount of electronic traffic generated and received by the applicant. The applicant cannot be held responsible for the amount of emails or teams messages he receives. He is however, as a manager, required to respond to any communications in a timely fashion, no doubt the subject of a KPI. It is mind boggling, that the applicant's supervisor spent over 50 hours reviewing his online activity and specifically looking for evidence of a mouse jiggler, yet did not disseminate each email or teams message to identify whether such communications required action and whether or not such action was undertaken in a timely fashion. The supervisor also failed to identify that there was a failure to meet KPI's during the period which falls short of what I find to be 'reasonable action' in the circumstances of this case. Such action would have reinforced its position of "time theft" had it been undertaken over an adequate period or alternatively discounted it entirely.
5. In addition, despite making claims of "time fraud" there was no attempt to undertake the 'reasonable action' of comparison of activities of other "at level" managers for the same period. Further the respondent failed to take reasonable action to establish time theft by undertaking a reconciliation of activity either online or otherwise during the same period the year prior. However, realistically this would have unlikely assisted the investigation given the applicant's successful performance review and VOE results. I have already discussed the WFH data provided and its shortcomings. Again, this failure prevents the applicant having a full opportunity to respond to the serious allegation of time theft and is not 'reasonable action'.
6. The respondent's Reply contained a number of policies. It maintains it has adhered to those policies and its conduct was reasonable action. Strictly speaking the respondent terminated the applicant's employment relying on conduct over a period of four days. Circling back to the definition of "serious misconduct" in paragraph 21 above, I find that given the above shortcomings in process, procedural deficiencies and evidentiary gaps in the investigation, the respondent's actions do not constitute reasonable conduct because;

(a) the applicant was never given an opportunity to rectify any breach;

(b) he was not aware of any concerns about his performance given his satisfactory record and positive feedback from his team members;

(c) there is no evidence apart from a suggestion of online inactivity that his work was unprofessional or negligent or that he had failed to meet KPI's;

(d) there has been no investigation into the work undertaken 'off line' as part of his duties;

(e) there was no attempt to compare in office performance to his WFH performance particularly in light of the concerns about the use of a 'mouse jiggler' to establish any patterns or improper activity;

(f) there was no refusal by the applicant to follow a lawful or unreasonable direction and indeed the applicant's response to the investigation was that he was willing to co-operate and take on feedback to ensure his professional development continued;

(g) despite claims made by the respondent there is no evidence that any alleged conduct could damage the respondent's reputation and indeed there is no evidence of any complaint raised either by a member of staff or third party stakeholder;

(h) if there were concerns about inactivity, senior management did little to cure this or identify shortfalls arising from inactivity. I say this because there is no record of incomplete tasks, timeliness complaints or failure to complete KPI's by the applicant. If a staff member can complete all tasks required in less than the standard core hours, a staff member should not be punished for productivity. Conversely, if a staff member cannot complete the tasks required within the standard core hours, a capability review on performance is required. If there were concerns about inactivity, reasonable action could have been that the applicant could be invited to take mandatory leave due to operational requirements or assigned additional tasks. This did not occur;

(i) the supervisor has alleged that matters were escalated to her by staff but specific instances were not raised with the applicant. The failure to apprise the applicant of any shortcomings in his behaviour particularly as it relates to his team falls short of 'reasonable action' as he has not been afforded reasonable fairness to respond or indeed correct his behaviour (Irwin). Whilst trite, the applicant could not address matters in which he had no knowledge;

(j) it is not reasonable action to allege there were any acts of dishonesty, theft or fraud on the basis of "online inactivity" alone especially when such activity was not compared with in office inactivity, and

(k) there is no evidence that any of the applicant's conduct would justify summary dismissal at common law.

1. I emphasise that it is not my role to assess the industrial actions/outcomes/motivations of the respondent. I am required to assess whether 'reasonable action' was taken.
2. The respondent emphasised that it had engaged in a process that was reasonable. The applicant was afforded reasonable fairness. The process undertaken was consistent with the respondent's disciplinary processes. It was entitled to make the enquiry and its enquiries yielded a result an outcome of serious misconduct which resulted in termination.
3. I agree, the respondent, as a licensed insurer has an obligation to the fund and all stakeholders to ensure that its staff are working optimally and are accountable for their actions. Random audits are necessary to ensure that management systems are robust, timeframes are met and accountability at all stages of decision making are optimal. Such action is in my view mandatory particularly as all stakeholders involved in statutory claims should have their claims and matters processed in a timely, cost efficient and professional manner. However, in making a decision about the applicant's adherence to internal policies, procedures and productivity, I find 'reasonable action' requires more than four days of data is required to establish an allegation to time theft and certainly more evidence is required, particularly when there have been no issues in relation to performance identified in the assessment of KPI targets twice annually. The action taken by the respondent is not 'reasonable action' as I find its process was hurried, premature and relied on speculation, inexact proofs and inferences. This is especially given the nature of the allegation which requires a higher standard of proof. (I appreciate that more than four days of data was obtained, but ultimately the respondent only relied on a limited period in its notification of termination and the investigation was done at a quiet time of year.) Its actions cannot also be seen as 'reasonable action' (paragraph 44 refers) given the applicant's satisfactory work history as evidenced by performance reviews, VOE surveys, absence of feedback and the limited evidence the respondent relies upon to establish the misconduct, which falls foul of procedural fairness.
4. I will now address the balance of the pleadings.

1. There is no dispute that the applicant suffers psychological injury and is totally incapacitated for work. PIAWE is not in dispute. As I have found the s 11A defence has not been established, the respondent is liable for weekly benefits as claimed. Parties indicated that there was no dispute about the quantum of entitlements but should a disagreement arise, I grant liberty to apply for further conference within 14 days of these reasons.

1. Section 60 of the 1987 Act states that if, as a result of an injury received by a worker, it is reasonably necessary that any medical or related treatment be given, the worker's employer is liable to pay for the cost of that treatment or service.
2. There were no submissions on whether the treatment claimed was outside of the sphere of 'reasonably necessary'. Review of the schedule of treatment reveals that the costs of medical consultations at both the general practitioner, psychological and psychiatrist level are claimed along with pharmaceutical expenses. These are mainstream uncontroversial treatments which are reasonably necessary given the diagnosis. I make a general order that the respondent pay the costs of reasonably necessary treatment.

1. For these reasons, I make the findings set out on page 1 of this Certificate of Determination.

[19] Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92 (Ponnan).

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

[21] Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452.

[22] Northern NSW Local Health Network v Heggie [2013] NSWCA 225.

[23] Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWCCPD 66 at [82].

[24] Irwin v Director General of School Education (NSWCC, Geraghty J No 14068/97, 18 June 1998, unreported).

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

[26] Northern NSW Local Health Network v Heggie [2013] NSWCA 225.

[27] Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65 at [81].

[28] Van Vliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49.

[29] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.