Balranald Shire Council v Walsh

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Balranald Shire Council v Walsh [2013] NSWWCCPD 47
APPELLANT:	Balranald Shire Council
RESPONDENT:	Anne Walsh
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-12085/12
ARBITRATOR:	Mr J Phillips SC
DATE OF ARBITRATOR’S DECISION:	24 June 2013
DATE OF APPEAL DECISION:	19 September 2013
SUBJECT MATTER OF DECISION:	Duty to provide sufficient reasons for determination; challenge to factual findings; s 11A of the Workers Compensation Act 1987; reasonable action with respect to discipline
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	On the papers
REPRESENTATION:	Appellant:	Bartier Perry
Respondent:	Slater & Gordon Lawyers
ORDERS MADE ON APPEAL:	1. The awards and orders found in the Certificate of Determination dated 24 June 2013 are confirmed. 2. The appellant is to pay the respondent worker’s costs of the appeal.

BACKGROUND

Ms Anne Walsh commenced employment with Balranald Shire Council (the appellant) as a personal care assistant in 2002. She worked in that role at Bidgee Haven Hostel, Balranald, which is an aged care facility conducted by the appellant. The hostel had 14 beds and there were 17 staff members.
Ms Walsh underwent spinal surgery in 2011. That treatment was related to a compensable back injury which she received in 2009. Ms Walsh returned to work following that surgery in October 2011. By reason of her ongoing back disability, a return to work plan had been prepared and implemented by a rehabilitation organisation known as IPAR. That plan imposed restrictions concerning particular duties. Ms Walsh was not to perform any showering, mopping, vacuuming, washing-up, hanging out clothes, assisting certain residents to bed, limited ironing and was not to lift more than 10 kilograms.
These proceedings do not directly relate to that back injury, but concern an undisputed psychological injury received by Ms Walsh arising out of and in the course of her employment following her return to work on selected duties. That psychological injury was received following action taken by the appellant, which it asserts was disciplinary action, against Ms Walsh following suggested breaches by her of either the terms of her return to work plan, or, as particularised in correspondence, breaches of Work Health and Safety Regulations. The transgressions relied upon by the appellant concerned occasions when Ms Walsh carried out duties which the rehabilitation agent had stipulated should not be performed by her. Her conduct included use of a lifting device without assistance on 11 February 2012 to lift a resident who had fallen to the floor, and an occasion, on 3 March 2012, when she alone physically assisted to the toilet, a resident who suffered incontinence.
The first incident came to the knowledge of Ms Genevieve McConnell, the appellant’s co-ordinator, in February 2012. Ms McConnell had earlier spoken to Ms Walsh concerning incidents involving Ms Walsh pegging out clothes on the line, an activity which she was not to perform. Ms McConnell passed information to Mr Robert Rayner, Manager. Following the second incident a discussion took place between Ms McConnell and Ms Walsh.
The appellant had forwarded, on 21 March 2012, a “first and final warning letter” to Ms Walsh concerning suggested breaches of “hostel policy, procedures” and “work, health and safety regulations”. Ms Walsh, who was at that time on holiday, did not receive the letter until 4 April 2012. The text of that letter, signed by Mr Rayner, was as follows:
“Re: First and Final Warning – Work Health & Safety Breaches
This letter constitutes a formal written warning that your performance falls short of the standards expected by Balranald Shire Council. This decision has been made after careful consideration of your response to two separate incidents on the 11/2/12 and 3/3/12 when you failed to follow Hostel policy, procedures and breached Work Health & Safety regulations which are designed to ensure your safety and the safety of the hostel residents. Your awareness of these policies and procedures should be heightened due to the previous injury you had sustained.
These above mentioned policies and procedures are as follows:
·        No lift – WHS Policy
·        O H & S Policy
·        Integrated Risk Management Policy
·        Manual Handling Procedure
·        Safe use of Mechanical Lifter
·        Safe use of sit/stand/walk belt
You are hereby advised that you are required to follow Hostel policy and procedures in relation to the use of lifting machines and the movement and lifting of residents; non compliance is a serious breach of the work health and safety regulations.
A review of your work practices will be undertaken at a meeting on 30 April 2012. If at that time it is determined that you have not made satisfactory progress in resolving these serious breaches of work health and safety, you will be subject to further disciplinary action, including the possibility of termination.”
Ms Walsh’s roster was changed as from 1 April 2012. Notice of that change was given to Ms Walsh by letter dated 5 April 2012 which was received by her on 9 April 2012.
A meeting was convened on 30 April 2012, attended by Ms Walsh, Mr Chris Littlemore, General Manager, Mr Rayner, Ms McConnell and, per telephone link, a union representative. Following that meeting there were a number of communications between Mr Littlemore and Ms Walsh and a further meeting was conducted, it seems, on 11 May 2012.
On 14 May 2012, Ms Walsh experienced a panic attack and was unable to attend work. She consulted her general practitioner, Dr Slava Zotov. A WorkCover medical certificate was issued stating that Ms Walsh was unfit for work. She has not returned to work since that time.
A claim for compensation benefits was made by Ms Walsh on 1 August 2012. The appellant’s insurer declined the claim. Notice of that decision was given to Ms Walsh in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) by letter dated 8 November 2012. The following reasons were given for rejecting the claim:
“a. We dispute you were bullied and/or harassed as alleged.
b. We assert your psychological injury was wholly or predominantly caused by reasonable action taken by your employer with respect to performance appraisal/discipline pursuant to the provisions of Section 11A(1) of the Workers Compensation Act, 1987 (‘the 1987 Act’).
c. Given no compensation is payable when a claim is disputed pursuant to Section 11A(1) of the 1987 Act, you are not entitled to be paid weekly compensation pursuant to Sections 33, 36, 37, 38 and/or 40 of the 1987 Act.
d. In addition, you are not entitled to have your medical expenses paid pursuant to Section 60 of the 1987 Act.”
The dispute between the parties came before Arbitrator Jeffrey Phillips SC, for conciliation/arbitration on 23 May 2013. The matter proceeded to arbitration and the Arbitrator reserved his decision. A Certificate of Determination was issued on 24 June 2013 in the following terms:
“The Commission determines:
1. There will be an award for the applicant pursuant to section 36 of the Workers Compensation Act 1987, as follows:
(a)From 14 May 2012 to 9 November 2012 at the rate of $1,171 per week pursuant to section 36, and
(b)From 10 November 2012 to 15 December 2012 at the rate of $522.30 per week pursuant to section 37, for a single worker with a dependant child.
2. Pursuant to section 40 of the Workers Compensation Act 1987, the applicant is entitled to a continuing payment of $522.30 per week from 16 December to 31 December 2012.
3.       The respondent will have credit for any payments made within that period.
4.       The applicant may approach the Registrar for a teleconference before an arbitrator for the period from 1 January 2013 onwards should the parties fail to reach agreement for that period of weekly benefits.
5. There is a general order for verified section 60 of the Workers Compensation Act 1987 benefits in favour of the applicant.
6.       The respondent will pay the applicant’s costs as agreed or assessed to which costs I provide an uplift of 15 per cent for complexity.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”

ISSUES IN DISPUTE

This appeal, given the terms of s 352(5) of the 1998 Act, is limited to a determination of whether the decision of the Arbitrator was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appellant relies upon three grounds of appeal. The manner in which the grounds have been drafted does not readily permit identification of the errors which it is contended have been made.
The first “ground” suggests that the Arbitrator “erred in his fact finding in that he failed to provide an adequate analysis of the relevant evidence and [sic] where the evidence of [Ms Walsh] differed from that of the evidence of the appellant’s witnesses”.
The second “ground” suggests error of law in that the Arbitrator “did not give a clear or logical explanation as to why he accepted the evidence of [Ms Walsh] over that of the appellant’s witnesses”. That ground asserts that “those [sic] discrepancies were material to [the Arbitrator’s] final decision”. The error of law is said to be “failure to disclose the essential reasoning process”.
The third “ground” asserts that the Arbitrator “erred in the exercise of his discretion in concluding the appellant’s actions were unreasonable because his discretion was inappropriately used given his incorrect appreciation of the facts as outlined in ground one above”.
The appellant has, in my view, failed to comply with the requirements of Practice Direction No 6 which stipulates that the grounds relied upon:
“must identify the respects in which error of law, fact or discretion is alleged to have occurred as well as any material findings it is said the Arbitrator should or should not have made, and any material facts it is said the Arbitrator should or should not have found.”
The deficiency which exists is not in any manner overcome by a consideration of the submissions put in support of the appeal. Those submissions do not address the particular “grounds” but rather are advanced as relevant, it seems, to each and all of the “grounds”. Further, those submissions in some respects merely reiterate the complaints which are advanced in the “grounds”.
Notwithstanding these shortcomings, I consider it tolerably clear that there are two issues raised for determination on this appeal being whether the Arbitrator erred in:
(a) failing to provide sufficient reasons for his factual conclusions, and
(b) finding that the appellant had failed to prove that the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the appellant within the meaning of s 11A of the Workers Compensation Act 1987 (the 1987 Act).

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

FRESH EVIDENCE

The appellant seeks leave to adduce additional evidence on this appeal. Such leave may be granted pursuant to the provisions of s 352(6) of the 1998 Act which provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Ms Walsh opposes the granting of such leave.
The first document which the appellant wishes to tender comprises two pages which were noted by the Arbitrator (at T20) as missing from the signed statement of the appellant’s witness Ms Genevieve McConnell made on 14 August 2012. Those pages contain part of paragraph [42] and all subsequent paragraphs to [50], inclusive, of that statement. Those pages are identified, by the appellant, as document “2.5.1”.
At the hearing the Arbitrator had granted leave to the appellant to file the missing pages within seven days of the hearing date and had granted leave to each party to provide any submissions in respect of the content of those pages “within seven days” of receipt of the document (T22).
No step was taken by the appellant to file the missing pages as was permitted by the Arbitrator’s order. No explanation for this failure has been provided by the appellant in submissions belatedly provided in respect of this application. It seems to be argued (at [3(a)]) that the appellant was not aware at some relevant time, not identified, that the pages were missing and thus “the evidence could not have been obtained by [the appellant] and tendered previously”. This submission is, in the circumstances I have attempted to outline, a nonsense.
Notwithstanding the appellant’s failure to address facts relevant to the question as to whether the document was available or whether it could not reasonably have been obtained before the proceedings (or thereafter as anticipated by the Arbitrator’s order) it remains to be determined whether failure to grant leave would cause substantial injustice.
Notwithstanding the appellant’s seemingly careless approach to the presentation of evidence and the absence of response to the Arbitrator’s granting of leave to supplement the tender of Ms McConnell’s statement, I am of the view that the two pages should be admitted into evidence. The absence of the missing pages may, in my view, lead to the Commission being misled concerning the evidence of Ms McConnell. I reject the submission put by Ms Walsh that admission of this material on appeal would give rise to prejudice. I note that such prejudice has not been identified in submissions. The statement in its entirety should, as intended by the Arbitrator, be before the Commission to permit a fair and just adjudication of the dispute: CDJ v VAJ [1998] HCA 67; 197 CLR 172 at [111]. Accordingly, leave is granted to tender document identified as “2.5.1”.
The second document, identified as document “2.5.2”, which the appellant seeks leave to adduce as fresh evidence on this appeal is described as “a letter drafted by Genevieve McConnell dated 6 March 2012 addressed ‘Dear Anne’”. Leaving aside the question as to the relevance of “draft correspondence” to the issues raised before the Arbitrator and on appeal, it is clear that the concession made in submissions (at [3a]) that “the appellant could have with reasonable diligence have [sic] provided the document to [its solicitors] prior to the arbitration hearing” has the consequence that leave to tender the letter on appeal must be refused. No argument is advanced that refusal of leave would cause substantial injustice. Leave to adduce document “2.5.2” is refused.

THE ARBITRATION HEARING

There was no dispute that Ms Walsh had received a psychological injury as alleged. The appellant’s defence was founded upon the provisions of s 11A(1) of the 1987 Act which, relevantly, provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1)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.
…”
Counsel appearing on behalf of the appellant made it clear that the action taken by the appellant was said to be disciplinary action within the meaning of s 11A(1). It was further put by counsel that “in many ways there’s really no dispute here about the relevant facts in this matter” (T17). That last submission, I note in passing, is of particular significance given the matters raised in argument by the appellant on this appeal. This aspect of the appeal is discussed below.
It should be noted that counsel for Ms Walsh, when responding to an enquiry of the Arbitrator, stated that the appellant’s action had not been “reasonable” in terms of s 11A(1) and that it was disputed that such action as was taken was “disciplinary” action within the meaning of the subsection (T36). Submissions put on behalf of Ms Walsh focused upon the question as to whether the appellant’s action was reasonable, however no argument was advanced in support of the suggested dispute as to whether that action could be identified as action with respect to discipline.

The Arbitrator’s Decision

Argument advanced by the appellant was summarised by the Arbitrator. It was the appellant’s case that Ms Walsh had, on a number of occasions, performed duties inconsistent with her return to work plan, thereby placing her at risk of further injury to her back. It was accepted by counsel, as noted by the Arbitrator, that by reason of the timing of her shift there would be periods of two hours when Ms Walsh was required to work alone. The Arbitrator further noted that the appellant’s case was that Ms Walsh knew that on such occasions her instructions were to “call another employee or the ambulance” if assistance was required.
The Arbitrator noted the evidence, relied upon by the appellant, of “Grievance and dispute procedures” which included “discipline procedures and other procedures”. The following provisions found in that document were noted:
“(i) Where an employee’s work performance or misconduct is considered unsatisfactory, employees shall be informed in the first instance of the nature of the unsatisfactory performance or conduct and of the required standard to be achieved, by the employee’s immediate supervisor or other appropriate officer of the Council.
(ii) Unsatisfactory work performance or conduct shall include, but not be limited to, neglect of duties, breach of discipline, absenteeism and non-compliance with safety standards. A written record shall be kept on the appropriate file of such initial warning. The employee shall be entitled to sight and sign such written record and add any notations regarding the contents of such record.
(iii) Where there is recurrence of unsatisfactory work performance or conduct, the employee shall be warned formally in writing by the appropriate officer of Council and counselled. Counselling shall reinforce the standard of work or conduct expected and, where the employee is failing to meet these required standards, a suitable review period for monitoring the employee’s performance; the severity of the situation, and whether the disciplinary action will follow should the employee’s work performance or conduct not improve. A written record shall be kept of such formal warning and counselling. The employee shall be entitled to sight and sign such written record and add any notations regarding the contents of such record.
(iv) If the employee’s unsatisfactory work performance or conduct continues or resumes following the formal warning and counselling, the employee shall be given a final warning in writing giving notice of disciplinary action should the unsatisfactory work performance or conduct not cease immediately.
(v) If the employee’s work performance or conduct does not improve after the final warning further disciplinary action may be taken.”

The appellant’s argument that the “need to impose a form of discipline was in order to protect [Ms Walsh’s] own safety with respect to her back injury” was noted, as was the appellant’s reliance upon the statement by Spigelman CJ in Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 (Sinclair) that “… a course of conduct may still be ‘reasonable action’ even if particular steps in the process are not” (at [97]).
The evidence of Mr Littlemore was, as noted by the Arbitrator, relied upon by the appellant concerning the issue of “reasonableness”. Part of that evidence was noted (at [25] of Reasons) as follows:
“Our main concern and reason for such disciplinary action was to ensure she understood the seriousness of her return to work plans and to ensure that she continued to work within the restrictions placed upon her. Council felt that if no action was taken she would continue to breach policies and procedures in place and risk the possibility of exacerbating her back injury or injure herself further.
…
In response to that [30 April 2012] meeting it was decided to withdraw the first and final warning and issue Anne with just a written warning in regards to the matters. This was done on [sic] good faith to show Anne and her union representative that Council was there to try and work with Anne in her return to work plans and assist in her recovery process for her back injury.”
The Arbitrator then turned to matters raised on behalf of Ms Walsh. It was said (at [33] of Reasons) that “the focus purely was to be given to the question of the reasonableness of the action”. A summary of argument advanced, which placed some emphasis on the relevant chronology, was then made by the Arbitrator.
Following a consideration of relevant authority, the Arbitrator noted that the appellant “bears the onus of the s 11A defence” and concluded (at [48]) of Reasons) that it had “not discharged that onus”. The Arbitrator found that:
“It is apparent, even on [the appellant’s] case, that [the appellant] did not follow [the discipline procedures].” (at [49] of Reasons)
The Arbitrator accepted the appellant’s submission “that one does need to look at these matters more broadly then [sic, than] merely being concerned about whether there was a precise slavish following of the procedures”. The Arbitrator observed that there was a need for fairness to the worker.
A finding was made that the appellant had “delayed for a considerable amount of time from the events, the subject of the final warning letter, before the letter was issued”. It was also noted by the Arbitrator that the subject letter was not seen by Ms Walsh until 4 April 2012, given that she was on holiday at the relevant time. A month elapsed, it was found, before Ms Walsh was at a meeting. Findings were made concerning the purported withdrawal by the appellant of the first and final warning letter. The subsequent correspondence sent to Ms Walsh dated 15 May 2012 was found to be in “similar terms”. The Arbitrator’s conclusion was as follows (at [52] of Reasons):
“Accordingly, I find that the respondent’s defence fails. It fails because its actions were not reasonable in that it failed to follow its own procedures and even went against what was told to the applicant in the meeting of 30 April 2012.”
The Arbitrator proceeded to address the questions concerning the extent of any incapacity suffered by Ms Walsh and her entitlement to weekly compensation. Those matters are not presently relevant. An award in favour of Ms Walsh was entered in terms as appear at [10] above.

SUBMISSIONS, DISCUSSION AND FINDINGS

The appellant challenges the Arbitrator’s determination that the action taken by it which wholly or predominantly caused the relevant injury was not reasonable action within the meaning of s 11A. The grounds relied upon and argument advanced suggest that there has been a failure by the Arbitrator to provide sufficient reasons for his conclusion of fact that the action was not reasonable. It is further suggested that that finding constitutes factual error.
That the question of reasonableness is one of fact is clear: Commissioner of Police v Minahan [2003] NSWCA 239; 1 DDCR 57 (Minahan). The obligation upon an Arbitrator to provide sufficient reasons for conclusions of fact is also clear: s 294(2) of the 1998 Act. Any failure to provide such reasons may constitute an error of law: Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (per Mahoney JA at 385-386) (Tatmar).
The evidence before the Arbitrator, concerning suggested breaches by Ms Walsh of the return to work plan, demonstrated that there was some conflict between Ms Walsh and the appellant’s witnesses as to precisely what had occurred on occasions said by the appellant to constitute such conduct. It was, by way of example, stated by Mr Littlemore that Ms Walsh “disputed” matters raised or had “no recollection” of matters, the occurrence of which was confirmed by documentation.
The factual disputes revealed on the evidence were, in my view, not extensive and that circumstance, no doubt, explains the submission put by the appellant’s counsel, noted at [28] above, that there was “really no dispute here about the relevant facts”.
Given the manner in which the matter had been conducted before the Arbitrator, his approach was to examine the process initiated by the appellant, which he plainly treated as being a disciplinary process, to determine whether such action was reasonable. That examination was made in the light of the requirements of the appellant’s own “Grievance and dispute procedures”.
The appellant’s complaints relate to a suggested failure by the Arbitrator to “analyse relevant evidence” (ground one) and failure to “give clear or logical explanation as to why [the Arbitrator] accepted the evidence of [Ms Walsh] over that of the appellant’s witnesses” (ground two). Leaving aside my earlier criticism of the form and content of those grounds, it is plain that the appellant seeks to raise matters not argued before the Arbitrator. There was no question that the action was in respect of discipline nor that circumstances required such action. The focus of argument advanced, and the Arbitrator’s reasoning, concerned, as earlier noted, the conduct of the process itself. The facts relevant to conduct of that process were not in dispute.
In my view grounds one and two, in so far as each suggest failure to provide sufficient reasons, must be rejected. As was stated by Mahoney JA in Tatmar (at 385-386):
“In my opinion, it is not open to a party on appeal to complain that reasons were not given for the decision of a matter of fact or law which was, or must have been, decided, if the matter was not the subject of submissions made to the court below in a way which called for a reasoned consideration of them.”
The third ground of appeal suggests some wrongful exercise of discretion by the Arbitrator “in concluding the appellant’s actions were unreasonable”. As earlier discussed this ground may be taken as a challenge to the Arbitrator’s factual finding that the appellant had not discharged the onus upon it to establish that its actions were reasonable within the meaning of s 11A.
It is argued that the actions of the appellant “fall within the parameters of the [appellant’s] own disciplinary policy and dispute procedures”, the text of which was in evidence. It is further argued that the Arbitrator had erred in not making reference to “discrepancies” in Ms Walsh’s evidence and failed to make reference to clause (iii) of the Employer’s Rights and Obligations” which is found in evidence and states:
“Notwithstanding the [procedures noted at [31] above] a council shall:
…
(iii) be entitled to take other disciplinary action before and/or during the procedures in cases of misconduct or where the employee’s performance warrants such action.”
Argument advanced by the appellant, which appears to address ground three, again seeks to emphasise “discrepancies” in the evidence of Ms Walsh, and it is suggested that the Arbitrator had erred in not taking account of such discrepancies. The general tenor of the submissions suggests that the implementation of the process by the appellant was justified and hence should have been found to be reasonable action within the meaning of the relevant sub-section. Particular facts are addressed, such as the absence of Ms Walsh and Ms McConnell on holidays. It seems to be suggested that error was committed by the Arbitrator in not taking those facts into account when addressing suggested delay in the process.
The task of the Arbitrator was to determine, upon an objective analysis of the facts, whether the relevant action was reasonable: Jeffery v Lintipal Pty Ltd [2008] NSWCA 138. The parties accepted, and the Arbitrator correctly observed, that the onus of establishing matters raised by s 11A was upon the appellant: Minahan.
The fundamental aspect of the Arbitrator’s reasoning which appears to have led to his conclusion as to reasonableness may be found at [52] of Reasons where he stated that the defence “… fails because [the appellant’s] actions are not reasonable in that it failed to follow its own procedures …”. The Arbitrator had found that there had been delay between the occurrence of the relevant incidents and the sending of the “first and final warning letter”. Whilst “delay” is in all respects a relative concept, it is in my view an appropriate description of the interval between the occurrence of those incidents relied upon by the appellant and the despatch of the relevant correspondence on 21 March 2012. Further the appellant, in my view, must be taken to have been aware that Ms Walsh was on leave at the time that correspondence was sent and that delay would likely occur before she received the letter.
The appellant’s document concerning procedure, as appears at (ii) under heading “employers rights and obligations”, prescribed that:
“[the employer] shall;
…
(ii) properly conduct and speedily conclude an investigation into the unsatisfactory work performance or conduct.”
It is apparent that this delay constitutes non-compliance with the relevant procedures. Notwithstanding the requirement that such matters be conducted “speedily” there was a further delay in the present matter until 30 April 2012 before a meeting was convened as required. It was this “delay” that the Arbitrator had also taken into account (at [51] of Reasons).
The Arbitrator had made clear in his Reasons that another aspect of the “disciplinary action” was unsatisfactory, that being withdrawal of the first warning letter following the first meeting and the subsequent issue of a letter “in similar terms” on 15 May 2012 (at [51] of Reasons).
The Arbitrator earlier in his Reasons at [49], as noted above at [35], observed that:
“It is apparent, even on [the appellant’s] case, that [the appellant] did not follow [the discipline procedures].”
Notwithstanding that conclusion, the Arbitrator properly took into account the entirety of the action to determine the question as to whether the steps taken were reasonable. Such an approach is consistent with those observations made by Spigelman CJ in Sinclair (at [69] and [97]).
Having regard to the state of the evidence, I am of the view that it was open to the Arbitrator to conclude, as he did, that the appellant had failed to comply with the procedural requirements. The evidence also permitted the Arbitrator’s conclusion as to delay in the conduct of the relevant action. The Arbitrator had considered the action taken in its entirety and had concluded that such action had not been proven to be reasonable. Such conclusion was, in my opinion, open on the evidence. No relevant error has been demonstrated.
Each ground relied upon by the appellant has been rejected and the appeal must be dismissed. Appropriate orders appear below.

DECISION

The awards and orders found in the Certificate of Determination dated 24 June 2013 are confirmed.

COSTS

The appellant is to pay the respondent worker’s costs of the appeal.

Kevin O'Grady
Deputy President

19 September 2013

I, KATHRYN CAMP, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

[2013] NSWWCCPD 47

19 September 2013

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Judicial Review

Reasonableness

Costs