sarwar v michael pagesarwar v michael page [2001] NSWCC 71

Compensation Court of New South Wales

CITATION : sarwar v michael pagesarwar v michael page [2001] NSWCC 71 PARTIES : Nazmul N. Sarwar v Michael Page International and Nuance Australia Pty. Ltd MATTER NUMBER(S) : 31755 of 1997 JUDGMENT OF: Moran J CATCHWORDS: Statutes & Delegated Legislation :- LEGISLATION CITED: CASES CITED: DATES OF HEARING: 11/05/01 DATE OF JUDGMENT: 05/11/2001

FOR APPLICANT: Mr SARAJINSKI (sol) FOR RESPONDENT: LEGAL REPRESENTATIVES: MR DYER (sol) appeared for the 1st respondent. MR ZAURRINI (sol) appeared for the 2nd respondent

JUDGMENT: 1. In this matter the applicant, who is now aged 49, was hired by the first respondent, which is an employment agency, to work for the second respondent, Nuance Australia Pty Limited, and her job was that of accounts payable supervisor. She was a casual employee to start with and she commenced on 27 May 1997 with the first respondent and continued up until 27 July 1997 in that position. The next day, on 28 July 1997, she commenced with the second respondent as a permanent employee on a month's probation. The last that the applicant worked was on 22 August 1997. 2. The applicant, an accountant with some experience in the type of work she was given, was quite surprised after being in the job for a few days to find that the accounts were in somewhat of a messy state. She found that payments were being made without proper authorisation, that some accounts were paid more than once, sometimes two or three times, accounts were often paid on invoices rather than statements. She also found irregularities in the use of cabcharge by employees of the company, and generally she found that she had taken on quite a busy portfolio. She kept management informed of her concerns by direct communication or by memorandum, and some of the memorandum have been tendered before me as evidence in her case and became exhibits. She was first accountable to Mr Tony Funnel, whose next superior was Adrian Judson. She said that she had a staff of about 10, and that included some temporary staff. Nevertheless, she was able to perform the duties and, as I said, she was a casual employee by the first respondent up until 28 July 1997. 3. A week or so before that date she alleges that a Mr Simon Thompson spoke to her when they were both waiting to use a photocopying machine, and that he touched her jumper in the vicinity of her breasts and she considered that the action on his part was sexual harassment. Mr Thompson gave evidence before me on two days, his evidence did not finish the first day and he came back a second day. The first day he was not shown a photograph of the jumper, which became an exhibit the next time he came back to court. That photograph became Exhibit CC. Mr Thompson said that all he did was to touch the yellow fur at the top of the jumper up near her shoulder, and felt that fur and did not press or even touch the material on her jumper other than the fur, and made some complimentary remark about it. 4. He said that the applicant made no complaint to him at the time, and it was not until a week or two, towards the end of her employment, that is in about the middle of August 1997 when in a conversation with another employee, himself and the applicant, the applicant said something about a girl being employed because of her looks, and he told the applicant that she should not say that sort of thing because of the laws these days, and she said to him "You touched my jumper", and he said, in reply to her, "If you thought that was inappropriate at the time, you should have said something then". Perhaps I should go on and say that the next time that that was mentioned was the last day of her employment, 22 August 1997, when she returned to the company following the meeting the day before, 21 August 1997, that she was required to attend on notice from Mr Thompson and Miss Collins, who later became Mrs Chadwick. 5. On 21 August the applicant was presented with a record of formal warning discussion which had been filled in by Mr Thompson on the first two pages and looks like the last page by Miss Collins, as she then was. The effect of the warning discussion was that there was a line of communication and a line of command and that she should respect that and that she was to report to Simon because he was the treasury manager, and not continually go over his head to Adrian Judson and also not to continually upset the staff. She refused to sign that document and, as I said, she came along the next day. The next day was the first time that she made any written complaint about the incident with the jumper, and that document was tendered in her case as Exhibit B, which was addressed to Miss Collins, who was the personnel officer, and started off by saying: I wish to advise you that I intend to take a full and proper action against Simon Thompson for sexual harassment at my workplace. I did not give him permission to touch or play with fur on my jumper which I was wearing at .......... 6. A copy of that document was tendered during the evidence of Mrs Chadwick, Miss Collins, and became Exhibit 7., and Mrs Chadwick said that she had made the note on the bottom of that copy - the memorandum of 22 August "12.15 pm on 22 August 1997, was not prepared to discuss what happened or put it in writing." What the applicant complained about in that memo was in complete contrast with her own evidence which was that there was more than just the feeling of the fur on that jumper, as shown in exhibit CC. Wherever the applicant's evidence is at odds with the evidence of Simon Thompson or Adele Collins now Chadwick, I prefer the evidence of Mr Thompson and Mrs Chadwick, not only on that aspect, but on other matters where their evidence is at odds with the applicant. 7. The applicant's claim against the respondents are as follows. Firstly, as against the first respondent, that as a result of that incident to which I have just referred, as a result of the nature and conditions of her employment between 27 May 1997 and 27 July 1997 and an incident of 23 July 1997, the applicant suffered psychological trauma resulting in a major depression and injury to her head, neck and shoulders. As against the second respondent, that as a result of the nature and conditions of her employment from 28 July 1997 to 22 August 1997 she suffered psychological trauma resulting in major depression. On 22 August 1997 the applicant was informed by Adrian Judson that her employment was to be terminated. She had not agreed to the matters raised at the meeting on 21 July 1997. The respondent had put her on a month's probation and that month was just about up. The applicant did not consult her general practitioner, Dr Mahadev, (Exhibit B) until after she was dismissed. 8. He notes that he saw her on 24 August 1997, complaining of headaches for the last two weeks, for analgesics, and then made other complaints about the working conditions and the fact that she had lost her job. He referred her to Dr Whetton, a psychiatrist whose report was tendered by - (not by the applicant), but by the respondent. He saw her in October 1997. He did not think that she was depressed as such, but certainly "disheartened and disappointed by what is happening around her at the moment, she is has now been dismissed from the job and has taken the matter up legally." He told her that it was important that this did not go for too long and that she resolve the matter as quickly as possible. He thought that she was suffering from an adverse reaction and not from a substantial depressive condition. 9. The respondent's case is that the provisions of s 11A of the act should apply. This incident occurred after that section came into force and on 12 January 1997, and paragraph (1) states: That 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 or dismissal of workers or provision of employment benefits to workers. 10. And then it goes on to define psychological injury. The applicant being unhappy with her dismissal took the matter to the Unfair Dismissal Tribunal, and in fact was given some compensation. If the applicant claims to be unfit for the work that she was doing as and from 23 August 1997, why then does she claim that she was unfairly dismissed. She has since returned to work in a similar position in June of last year, and said was looking for work before June 1999, but unfortunately she suffered symptoms in both her arms which I understand were something of the nature of bilateral carpal tunnel syndrome, and had operations on each arm during the middle of 1999. Although the applicant claim for psychological injury supported by Dr Jones and a clinical psychologist, and another doctor, Dr J Sachdev and by her general practitioner, I prefer the medical evidence of Dr Whetton to which I have already referred and of Dr Dyball relied upon by the respondent. 11. It is convenient, at this stage now, to refer to the claim against the second respondent because that solely relates to psychological claim. Dr Dyball had the benefit of seeing Dr Whetton's report. He said in the last paragraph of the report, which became Exhibit 2, that most if not all of this woman's problems centre on the fact that she was fired and is no longer in employment, and he is talking about October 1998, and he refers to marital problems, and that she felt the innocent victim of a situation at work and was unfairly sacked et cetera and was determined to seek retribution it seems. I am not satisfied that the applicant did suffer a psychological injury and, as I said, because I prefer the opinions of Dr Whetton and Dr Dyball, but even if she did I am further satisfied that any action taken by the respondent was reasonable action within the meaning of s 11A, and that accordingly the applicant would not be entitled to compensation under the act because of the provisions of s 11A. It follows that not only is she disentitled to compensation for incapacity alleged, but also the s 60 expenses. In the circumstances I make an award in favour of the second respondent. 12. I now turn to the claim against the first respondent, which involves not only a psychological injury as claimed, but also an injury to the head resulting allegedly incapacity and s 60 expenses. The applicant's claim in respect of the nature and conditions of employment resulting in this psychological injury is for a period ending on 27 July 1997, which is between May 1997 and July 1997. That was a period during which the applicant was concerned about the accounts payable section of the company. Although a casual employee, she was put in charge as a supervisor, but I am not satisfied on the whole of the evidence before me that the applicant as a result of the nature and conditions of her employment in that responsible position in which she was placed had resulted in any psychological injury which she claimed caused incapacity. I do not think the facts support it, and certainly the medical evidence does not support it and, as I said, I am satisfied on the whole of the evidence that any depression she had was not a psychological injury but a feeling of resentment of being sacked. 13. Her dismissal did not happen until August when she was in the employ of another respondent. 14. I have already mentioned this alleged sexual harassment where Mr Thompson I find merely touched the fur on her jacket. The applicant claims she told Mr Adrian Judson about it, and that he was not called by the respondent. I am satisfied on the evidence that she did tell him about it, but not until the day after that meeting of 21 August 1997 when she included the complaint in her memo which she presented to the company on 22 August. 15. Coming now to the head inquiry claimed in the application for determination that occurred on 23 July 1997. She said the lid of a printing machine, mainly used for printing cheques fell on her head. She said it was large lid, it was a plastic lid. It is hard for me to believe that such a lid could weigh 15 to 20 kilograms as she told Dr Richard Evans, the doctor to whom she was referred by her solicitors. There seems to be no doubt that the lid was hinged the back of the printer and that it did not fall from some great height. I accept that it happened, I accept that she was stunned at the time, that she was dizzy for a short time, and she may have had some symptoms that day, and perhaps even a day or so later. Nevertheless, she not only continued with her work for the first respondent for another week, but also for the second respondent for another four weeks, and made no complaint about any inability to perform the work. 16. She lost no time, except for half a day, when she said she went off with a tummy bug on or about 20 August 1997. It was not until she was reprimanded at that meeting of 21 August 1997 that she complains about the headaches she has had for some time, the discomfort she has suffered. She has never been to a doctor about any problems with her head or neck and shoulders until two days after she left the employ of the respondent, that is on 24 August 1997. She did say that she had been to another doctor called Dr Kadou, however there is no evidence of when she saw him, no medical report or certificate was ever tendered from him. I am not satisfied that she did see any doctor about this head injury until she saw Dr Mahadev on 24 August 1997. She was able to do her work with overtime until she left. She was referred to Dr Richard Evans, but before that she was referred to a doctor at St George Hospital and a neurologist, Dr Curran. 17. I see a lot of reports from Dr Evans, he is a physician who does a lot of medico/legal work, and despite the fact that he is not an orthopaedic surgeon, he is quite often preparing reports as to disabilities and a percentage of permanent loss of arms and legs and impairments of backs and necks quite frequently. His report was not tendered by the applicant's solicitors, but by the first respondent's solicitors in its case. He saw her on 16 April 1998, took a long history from her, made a very lengthy examination of her, and he came to the conclusion that: As far as her neck was concerned it could only be regarded as a soft tissue injury of the cervical spine. It is most likely (more from the history than from the physical examination) as the latter cannot be regarded as being at all reliable. And on that history, then he makes this diagnosis referring to ligaments or facet joints. He said: However, the situation is so confusing, total confusion by a gross over-reaction, but I would be not confident in making such a diagnosis. That is he was referring to the possibility of a cervical disc lesion. So he says: For the present the damage can be regarded as being to the ligaments. Perhaps an MRI scan would help in the circumstances .......... Although he makes a percentage of impairment of the neck, he is not confident about any disability involving either arm, and he again talks about the fact that the precise cause of the neck pain is not known, maybe as a result of the depression or the over-reaction, the same remark to make any confident assessment et cetera, and he considered psychosomatic in origin. He sent a similar report in to the solicitors on 29 April 1998: I have difficulty .......... assessment was because of the over-reaction et cetera. 18. The respondent had the applicant examined by an orthopaedic surgeon, Dr Garry Scarf, a specialist surgeon, on 9 September 1998, and he had no doubt that she was fit for work, that there was no evidence of any degenerative change of the cervical spine in radiology. He thought that: If she did have some haematoma it would settle down in a matter of weeks, she may have a local headache. The symptoms she described today are unphysiological. 19. And he talked about the extent of them. He thought the woman's problem was less physical than mental, and having regard to her behaviour, which I think he described earlier in his report as bizarre, it is not possible to give any accurate account of permanent impairment of the neck. The doctors' opinions are based on the accuracy of the applicant's statement as to her symptoms and history and action et cetera. I am not satisfied that the applicant was ever incapacitated for work as a result of the printer hitting her on the head. I am also not satisfied that as a result of that accident, the printer lid hitting her on the head, that the s 60 expenses, which she incurred, were reasonably necessary as a result of the injury. 20. I am satisfied that doctors were led astray as to her symptoms, or so called symptoms, and that there was no need for any treatment at all; that the applicant was determined to seek some sort of justice for being dismissed from work, and that had she not been dismissed, and if she had only acknowledged that her employer was entitled to run its own business and to appoint people in authority, and that she was obliged to go through the proper channels of seniority, that she would have continued with her employment without any loss of time or without need for medical or hospital treatment. I am not satisfied also that there was any permanent impairment of the neck as assessed by Dr Evans. 21. So, for all those reasons, I find that the applicant is not entitled to any award against the first respondent, or compensation for weekly payments, or s 60 expenses, or for any lump sums, and I make an award in favour of the first respondent. I also make an award in favour of the second respondent. MR SARAJINSKI (sol) appeared for the applicant. MR DYER (sol) appeared for the 1st respondent. MR ZAURRINI (sol) appeared for the 2nd respondent