The matter of Department of Education -v- Azmitia
 WADC 85 involves an application for leave to appeal from a
WorkCover decision, where the arbitrator found that the respondent
worker, Ms Azmitia, suffered a stress-related disease in the course
of her employment.
The decision demonstrates the influence procedural matters have
on stress related claims and their influence on the ability to
plead section 5(4) defences.
Ms Azmitia alleged that she was bullied, intimidated and
harassed by her supervisor, Mr Edwards, from her first day at
Calista Primary School. However, her claim was lodged after Mr
Edwards spoke to her at a meeting on 23 March 2012 about her work
performance and mental health.
Specifically, the meeting concerned a parent's letter of
complaint directed to Ms Azmitia, in which she alleged Ms Azmitia
had "said some startlingly florid and inappropriate things to
her". Mr Edwards was so concerned that he referred the letter
to the appellant's Standards and Integrity Division, which
directed him to have Ms Azmitia seen by a doctor.
Ms Azmitia left the meeting in a distressed state, sought
immediate medical attention and reported the matter to her
The arbitrator did not accept Ms Azmitia's evidence about
any of the alleged stressors in her workplace prior to 23 March
2012. He concluded that Ms Azmitia had a tendency to view
relatively innocuous events in a histrionic way and thus
exaggerated them in her evidence.
Medical evidence was presented from psychiatrists, Dr Tannenbaum
and Dr Terace, and psychologist Dr Sekhon. However, the arbitrator
was not persuaded by the majority of this.
Instead, the arbitrator found that Mr Edwards' actions in
not telling Ms Azmitia in advance what the meeting was going to be
about, reading the letter to her for the first time in the meeting
and referring the matter to the Standards and Integrity Division
without her consultation were critical factors. The arbitrator
supported his findings in relation to causation by noting that the
relevant stressors were not confined to the content or what was
said in the meeting, but included the way in which the meeting was
The arbitrator further held that, even if Ms Azmitia expected an
excluded matter such as discipline or loss of a benefit to occur,
such was not the whole or predominant cause of the injury and thus
the excluded matters were not enlivened.
In the light of these findings, the arbitrator found that it was
not necessary to address the proviso to s 5(4), namely whether the
appellant's actions were harsh and unreasonable. However, for
completeness the arbitrator said that he "would have found
that the department's action[s] were harsh and
All three psychiatrists certified that Ms Azmitia was fully fit
to return to work, but after considering the evidence
'overall', the arbitrator found Ms Azmitia to be totally
unfit for work for the closed period.
The arbitrator's decision was subject to a District Court
Leave to appeal was granted in respect to 3 out of 5 grounds,
which dealt with the factual basis of the medical reports and the
arbitrator's interpretation of these reports however, the
appeal was dismissed.
In coming to this decision, his Honour found that the arbitrator
was mindful of the principle in Pollock v Wellington. He
also accepted that Ms Azmitia gave absolutely no evidence about her
symptoms and was satisfied with the arbitrator's
'overall' approach when considering the medical
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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