Barnett v Northern Territory of Australia

[2010] NTMC 70

CITATION:      Barnett v Northern Territory of Australia [2010] NTMC 070

PARTIES:   ROBERTA BARNETT

V

NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT:   Work Health Court

JURISDICTION:   Work Health

FILE NO(s):   20716768

DELIVERED ON:   7 September 2010

DELIVERED AT:   Darwin

HEARING DATE(s):   2-5 June, 9-11 June, 7-11 December, 14-18 December & 21 December 2009

Final Submissions Received 1 July 2010

JUDGMENT OF:   Dr John Allan Lowndes

CATCHWORDS:

WORK HEALTH – EXTENSION OF TIME (s 182(3)) – DEEMED

ACCEPTANCE OF CLAIM – REASONABLE ADMINISTRATIVE AND DISCIPLINARY ACTION – FAILURE TO OBTAIN A PROMOTION OR BENEFIT – BULLYING AND HARASSMENT

Workers Rehabilitation and Compensation Act (NT) ss 3, 87, 182

Rivard v Northern Territory of Australian [1999] 129 NTR 1 followed

Swanson v Northern Territory of Australia [2006] 204 FLR 392 applied

Tracy Village Sports Club v Walker (1992) 111 FLR 32 applied

Van Dongen v Northern Territory of Australia (2005) 16 NTLR 169 considered

Re Brady and Australian National Railways Commission (1987) 13 ALD 187 followed

REPRESENTATION:

Counsel:

Worker:   Ms S Gearin

Employer:   Mr P Barr QC

Solicitors:

Worker:   Morgan Buckley

Employer:   Ward Keller

Judgment category classification:           B

Judgment ID number:   [2010] NTMC 070

Number of paragraphs:   713

CONTENTS

TOPIC     PAGE NUMBER

PRINCIPAL ISSUES                   1

THE LIMITATION ISSUE    12

DEEMED ACCEPTANCE OF THE CLAIM   37

THE RECRUITMENT OF THE WORKER AND THE    51
WORKER’S PSYCHOLOGICAL PROFILE

THE MEANING OF THE STATUTORY EXCLUSIONS   53

THE CONCEPTS OF BULLYING AND HARASSMENT                    70

THE MEDICAL EVIDENCE   73

ANALYSIS AND CHARACTERISATION OF THE CAUSES              80
OF THE WORKER’S INJURIES

1. The alleged sexual proposition   81

1. The Foley Involvement   82

3.   The October 2002 Genesweep operation and                     85

Curyer matter

4.   The contextual significance of the early incidents               87

5.   The conversation between Senior Sergeant Kerr                88

and the worker

6.   The Police College meeting on 11 June 2003   104

7.   The meeting on 12 June 2003 between the worker              111

and Commander Owen

8.   The worker’s complaints against Sergeant Foley,               126

Senior Sergeant Kerr and Commander Owen

9.   The mediation process and outcome   139

10. Alleged denial of natural justice   144

11. The investigation by the Professional Responsibility        153

Division

12. Lack of resolution with Commander Owen    156

13. The worker’s failure to obtain a promotion or benefit       163

14. The return to work management plan   169

THE COMPENSABILITY OF THE WORKER’S INJURIES    200

THE WORKER’S INCAPACITY AND CALCULATION OF             203
COMPENSATION

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20716768

BETWEEN:

ROBERTA BARNETT

Worker

AND:

NORTHERN TERRITORY OF AUSTRALIA

Employer

REASONS FOR JUDGMENT

(Delivered 7 September 2010)

Dr John Allan Lowndes SM:

THE PRINCIPAL ISSUES

1. The worker filed an application in the Work Health Court seeking payment of weekly benefits of compensation in respect of two injuries suffered by her and arising out of or in the course of her employment with the Northern Territory Police Force.

2. The worker alleged that from on or about 15 September 2004 until about 31 January 2005 she was diagnosed with a work related stress injury (the first injury). The worker alleged that her first injury occurred as a result of the failure of the employer to investigate her complaints of bullying and harassment as particularised in the Amended Substituted Statement of Claim.[1]

1. The worker opened her case as follows:

   It is our submission that the worker was denied procedural fairness in the way her complaints were dealt, and our ultimate submission, we will be saying that a denial of procedural fairness in disciplinary or administrative actions is unlawful and any unlawful action cannot be reasonable.

   The employer was provided with numerous medical reports from 2003 onwards advising that the worker was suffering from a psychological illness which would not be resolved until the various complaints were finalised; she made complaints which are identified in the pleadings about the behaviour of various police officers. The medical reports were ignored and the matter was not resolved in a timely and professional manner…

   As a result of the non-resolution of the workplace issues in a timely and professional manner the worker suffered psychiatric injury resulting in her incapacity to perform her duties…

   The worker believed that when these workplace issues were resolved then she would be able to continue her career as a police officer. This belief was well founded.

   If we go to the chronology you will see, on page 3, that the real issues started in June 2003 and 16 June there was a formal written complaint made by the worker which, we submit, was never dealt with in relation to Commander Owen and not dealt with appropriately, although mediation was set up in October 2003, mediation did not occur in relation to Owen and it did not occur in relation to Kerr. And by March 2004 my client received a lengthy email from Assistant Commissioner, Graham Kelly, saying that he would “discuss the matters raised by you with Mr Owen” and then on 17 August 2004 we get another lengthy email from Assistant Graham Kelly advising that the matter is still not progressing for various reasons. So we’ve gone from June 2003 to August 2004 with these matters unresolved.

   Given the context of the medical advice that these people were getting, the necessity for a proper and professional resolution of these disputes, these actions were unprofessional and they were unlawful. They were unlawful under the guidelines that are published by the defendant and they are unlawful on the basic principles of administrative law.[2]

2. The worker also alleged a second mental injury – adjustment disorder with anxious and depressed mood – in about April 2006, said to have been suffered as a result of bullying and inappropriate behaviour on the part of the employer.

3. The worker alleged that as result of the first injury and/or the second injury she has been totally or in the alternative partially incapacitated for employment as a police officer from and including 13 April 2006 to date and continuing.

4. However, it is noted that in her opening counsel for the worker stated (at page 29 of the transcript):

   …the issues that Your Honour is required to determine: firstly, did my client suffer an injury arising out of or in the course of her employment such as to incapacitate her for employment secondly, what if any employment is she capable of earning now. My client is physically a very fit woman. The psychiatric evidence is guarded; some say that she can return to some part-time work, others say she can go and work in the normal sorts of jobs, such as driver or waitressing or a worker of that nature, and we don’t say that she can’t work but we say that she’s entitled to the difference to what she would be able to earn in accordance with section 65(3) of the Work Health Act.

5. The worker bears the onus of proving that she suffered an injury arising out or in the course of employment, and such injury materially contributed to an incapacity for work. The worker bears the legal as well as the evidentiary burden of establishing the level of her incapacity, both in the physical sense and in the sense of the amount of compensation to which that level of incapacity entitled her.[3]

6. In essence, the employer’s case is that:

   ·Any injury that occurred on 10 September 2004 was as a result of reasonable disciplinary action taken by the employer against the worker and/or reasonable administrative action taken in connection with the worker’s employment, or both;[4]

   ·Further and in the alternative any injury that occurred on 10 September 2004 was materially contributed to by, or was a result of, the injuries sustained by the worker on 12 June 2003 and/or 24 October 2003, or both. The injuries sustained on 12 June 2003 and/or 24 October 2003 were themselves a result of reasonable disciplinary action taken against the worker, or reasonable administrative action taken in connection with the worker’s employment or both; [5]

   ·Further and in the alternative any injury that occurred on 10 September 2004 was a result of the worker’s failure to obtain a promotion or benefit, namely her designation as a detective;[6]

   ·Further and in the alternative any injury that occurred on 10 September 2004 was contributed to by ongoing issues relating to complaints against Kerr, Foley and Commander Owen (as pleaded in paragraph 22 of the Defence) which constituted reasonable administrative action taken in connection with the worker’s employment and/or reasonable disciplinary action taken against the worker, or both;[7]

   ·Any injury suffered by the worker was sustained on or before 13 April 2006  and was materially contributed to by, or was a result of, the injuries sustained by the worker on 12 June 2003, 24 October 2003, 10 September 2004, or any combination of the three. The injuries sustained on 12 June 2003, 24 October  2003 and 10 September 2004 were themselves a result of reasonable disciplinary action taken against the worker, or reasonable administrative action taken in connection with the worker’s employment or both;[8]

   ·Further and in the alternative any injury suffered by the worker was sustained on or before 13 April 2006 and was a result of the matters pleaded in paragraphs 34.4, 34.5 and 34.13 of the Defence, all or some of which were reasonable administrative action taken in connection with the worker’s employment or reasonable disciplinary action taken against the worker, or both;[9]

   ·To the extent that the Notice of Alleged Serious Breach of Discipline contributed to the worker’s injury or the extent of her injury as sustained on or before 13 April 2006, it was reasonable administrative action taken in connection with the employer’s employment or reasonable disciplinary action taken against the worker, or both.[10]

7. At [100] of the worker’s written submissions dated 27 January 2010 the following submissions were made in relation to the administrative or disciplinary action taken against the worker:

   The actions by NT Police which Mrs Barnett alleges were                    unreasonable and resulted in injury and subsequent incapacity for     employment by the NT Police are:

   a.The “meeting” held on 11 June 2003 of which Mrs Barnett was not given notice or advised of the purpose of the meeting or the allegations made against her and during which she was confronted by four senior officers all of whom had been provided with the Foley memorandum (the bullying meeting);

   b.The “meeting” held on 12 June 2003 of which Mrs Barnet was given no notice or advised of the purpose of the meeting or the allegations that had been made against her to Commander George Owen;

   c.The conduct of Commander Owen during the “meeting” which was the subject of the formal complaint on 16 June 2003;

   d.Harassment by Commander Owen being verbal abuse and threats by Commander Owen contrary to 8.3 of the Code of Conduct and Ethics;[11]

   e.Commander Owen failing to provide Mrs Barnett with procedural fairness by failing to provide Mrs Barnett with particulars of the allegations against her and failing to provide Mrs Barnett with any opportunity to respond to the allegations, before threatening her contrary to 8.3 of the Code of Conduct and Ethics;

   f.Commander Owen exceeding his authority by ordering Mrs Barnett to attend at anger management counselling and threatening to dismiss her from the detectives course contrary to sections 12.1, 13.2 and 8.3 of the Code of Conduct and Ethics;

   g.Commander Owen exceeding his authority by having Mrs Barnett’s locker searched and obtaining personal possessions and other official notebooks and diaries and refusing to return them;

   h.The failure of NT Police to properly investigate the complaint of 16 June 2003 and accord Mrs Barnett procedural fairness in that alleged investigation;

   i.The failure to accord Mrs Barnett procedural fairness in making a decision to mediate all the complaints;

   j.The cancellation of the mediation process without any explanation to Mrs Barnett;

   k.The failure to commence disciplinary action against Commander Owen when the PA Act required action be commenced against him;

   l.The failure to resolve all the complaints of bullying and harassment by Commander Kerr;

   m.The failure to accord Mrs Barnett procedural fairness prior to AC McAdie making the decision of 31 March 2004 and the failure to provide reasons for that decision; and

   n.The inappropriate and inadequate actions by AC Grahame Kelly, wherein he sought to blame the victim for her complaints, albeit in an ad hoc and haphazard manner. As a senior police officer he should have conducted a proper investigation of the complaints against all concerned.

8. To put the employer’s case in statutory context, “injury” is defined in section 3 of the Workers Rehabilitation and Compensation Act as follows:

   Injury in relation to worker means a physical or mental injury arising before or after the commencement of the relevant provision of this Act out of or in the course of his or her employment and includes:

   a)a disease; and

   b)the aggravation, acceleration, exacerbation, recurrence or deterioration of a pre-existing injury or disease,

   but does not include an injury or disease suffered by a worker as a result of reasonable disciplinary action taken against the worker or failure by the worker to obtain a promotion, transfer or benefit in connection with the worker’s employment or as a result of reasonable administrative action taken in connection with the worker’s employment.

9. It is clear from the exclusionary elements of the definition of “injury” that if a work related injury is the result of reasonable administrative or disciplinary action taken against a worker or the result of a failure by a worker to obtain a promotion transfer or benefit, then the injury is not compensable. As the employer has pleaded and relies upon the exclusionary elements of the definition of “injury”, it bears the onus of proving that any injury suffered by the worker was a result of reasonable disciplinary or administrative action or a failure to obtain a promotion, transfer or benefit.[12]

10. As stated by Martin (BR) CJ in Swanson v Northern Territory of Australia [2006] 204 FLR 392 at 417, the phrase “ as a result of “, as appears in the statutory definition of “injury”, is to be given its ordinary and natural meaning, and a causal link is required to be established between the administrative or disciplinary action and the injury.[13]

11. The exclusionary elements of the definition of “injury” were considered by the Court of Appeal of the Supreme Court of the Northern Territory in Rivard v Northern Territory of Australia [1999] 129 NTR 1.

12. In that case a probationary police auxiliary failed to have his employment confirmed after a probationary period of 12 months. The Work Health Court found that the worker’s stress related illness was a result of her failure to obtain a promotion or benefit. On appeal, in the Court of Appeal, Priestley J (with whom Martin CJ and Thomas J agreed) held that the injury was the result both of the worker’s failure to obtain a promotion or benefit and of other materially contributing factors which fell outside of the exclusionary elements of the definition of “injury”. As pointed out in the employer’s submissions, “there had been instances of ‘unreasonable administrative action’ on the part of the employer during and after the probationary period, such as not providing counselling, allowing the worker to find out from the Police Gazette she had not gained confirmation without first notifying her and then returning her to another police station for a 28 day period of assessment without putting arrangements in place for her supervision”.[14]

13. Priestley J stated:

    In my opinion the finding that some events outside any of the three exclusions made some contribution to the worker’s injury excludes in law the conclusion that the injury was “a result of…failure by the worker to obtain a promotion… or benefit.[15]

14. In the course of his judgment Priestly J provided the following analysis of the relationship between the three statutory exclusions:

    It seems clear that administrative action taken in connection with the worker’s employment, the third exclusion in the NT Act, could overlap with administrative action in the promotion process in the wide application given to it by the Chief Magistrate and Bailey J in the present case. This position is avoided if what seems to be a straightforward reading is made of the NT Act’s exclusions, namely that the first applies to mental stress injury resulting from disciplinary action, the second applies to such injury resulting, as it says, from failure by the worker to obtain promotion or benefit, and the third to such injury resulting from reasonable administrative action connected with the worker’s employment, this last exclusion being well adapted to include events in the promotion process and other administrative events connected with the employment, but not mental stress injury resulting from the failure itself by the worker to obtain promotion or benefit.

    That this is the most straightforward reading of the second of the three exclusions seems to me to be apparent if an effort is made to state the “promotion process” construction in terms as close as possible to the words of the second exclusion itself. The result must be something like:

    does not include an injury…suffered by a worker as a result of…failure (including events before and after and connected with that failure) to obtain a promotion…or benefit.

    In my view, when the second exclusion is read bearing in mind the third, the events referred to in brackets fall much more easily into the third exclusion than the second. Adoption of the construction I favour does not involve the addition of any words to the second exclusion (or the third), except perhaps the word “only” after “result” in the second exclusion.

    In summary, in my view the foregoing approach gives a clear operation to each of the three exclusions, in each case by means of an unforced and obvious meaning. The meaning of the second exclusion is that if a worker suffers mental stress injury as a result of the non-obtaining of a promotion or benefit, then the injury is not compensable; because of the presence of the third exclusion, in

    considering whether the injury resulted from failure to obtain promotion or benefit, the tribunal or court would not take into account either matters leading up to the employer’s decision not to promote or benefit the worker or actions of the employer consequent upon the employer’s decision not to promote or benefit the worker. Whether the last mentioned matters and actions had the effect of excluding a worker from compensation would depend upon their assessment by the tribunal under the third exclusion.[16]

15. Priestley J made the following addition:

    I would add that if my interpretation of the exclusion part of the definition of “injury” is wrong, and the “promotion process” construction should be adopted, then a version of the conjunctive construction submission for the worker would need to be considered.  If the second exclusion is to be read as encompassing events before and after the worker’s failure to obtain promotion or benefit, these events would necessarily include events in the nature of administrative action; in view of the insistence in the first and third exclusions upon reasonable disciplinary action in the one case and reasonable administrative action in the other, I would be of the opinion that the second exclusion in referring to (on this hypothesis) the “promotion process” must have been contemplating a proper or regular promotion process, not one involving, as here, unreasonable administrative processes.[17]

1. The employer made the following submission in relation to the effect of the decision in Rivard v Northern Territory of Australia (supra):

   The decision of the Court of Appeal thus established the principle that, for the injury to be non-compensable as resulting from one of the exclusions, that exclusionary element had to be the sole cause of the injury. It should follow that the principle thus stated would be applicable to all of the exclusions.[18]

2. The Court respectfully agrees with and adopts that analysis of the decision in Rivard (supra).

3. It is noted that the employer contends that Rivard was wrongly decided.[19] However, the employer rightly concedes that “until and unless the Full Court of the Northern Territory Supreme Court (or the Northern Territory Court of Appeal) overrules Rivard the Work Health Court is bound by that decision”.[20]

4. Although all of the medical evidence is to the effect that the worker suffered a mental injury that resulted in an incapacity for work, [21] the causation of that injury - and hence its compensability – is in dispute.

5. On the one hand, the employer asserts that the worker’s first injury was “caused by one or more of the exclusionary elements of the definition of “injury” in section 3 of the Act”.[22] In relation to the worker’s second injury, the employer says that that injury was:

   a)an accumulation of the previous “insults” and the continuing effects of the 2004 injury; and

   b)precipitated by events or actions that are properly characterised as reasonable administrative action or reasonable disciplinary action by the employer.[23]

6. On the other hand, the worker alleges that her first injury was caused by the employer’s failure to investigate her complaints of bullying and harassment and that her second injury was the result of bullying and inappropriate behaviour. It is implicit in the worker’s case that the actions of the employer did not fall within any of the exclusionary elements to the definition of “injury”.

7. Whether or not the worker is entitled to compensation depends upon the cause or causes of her injuries and the application of the legal principles   articulated in Rivard (supra) to the established facts. It is only if the worker’s injuries are found to be compensable, in accordance with the principles in Rivard (supra), that the Court needs to proceed to determine the worker’s incapacity.

8. The present proceedings also give rise to two further issues.

9. The first is a limitation issue. The worker failed to make a claim for compensation within the six month period as required by s 182 of the Work Health Act (as it then was).

10. The worker submits that this is not a bar to the maintenance of the proceedings, as the delay in making a claim falls within one of the grounds specified in section 182(3) of the Work Health Act, namely “other reasonable cause”. Accordingly, the worker seeks an order in respect of the first and/or second injury extending the time in which the worker could make a claim for compensation.

11. The employer denies that the worker is entitled to an extension of time pursuant to section 182(3) of the Act to make a claim in respect of the first and/or second injury.

12. The second issue concerns the operation of s 87 of the Act.

13. The worker seeks a ruling that the employer is deemed to have accepted liability for compensation in respect of the claim pursuant to section 87 of the Work Health Act from the date of the first injury, or in the alternative the second injury to such date as the Court might determine. The worker relies upon the matters pleaded in paragraphs 87- 91 of the Amended Substituted Statement of Claim. The employer denies that it is deemed to have accepted liability.

    THE LIMITATION ISSUE

14. It is convenient to deal with the employer’s limitation defence first because unless the worker obtains an extension of time pursuant to section 182 (3) of the Workers Rehabilitation and Compensation Act the present proceedings are not maintainable, and the worker is not entitled to the relief sought, or indeed any relief at all, in relation to the injuries alleged in the Amended Substituted Statement of Claim.

15. With respect to the first injury in 2004 the worker failed to make a claim for compensation within the statutory six month period. Furthermore, in relation to the second injury in 2006, the worker also failed to make a claim within time. It was not until 31 January 2007 that the worker made a claim for compensation.

16. The claim which was dated 26 January 2007 was sent to the employer under cover of letter from the worker’s solicitors dated 31 January 2007. That letter was hand delivered on that date. The claim form recorded the date of injury as 13 April 2006. The relevant incident was described in the claim as “culmination of workplace harassment over period of 3 – 5 years”. The claim form also recorded the worker having suffered from a similar injury that occurred on 12 September 2004.

17. In my view, the claim made in January 2007 purported to cover both the alleged first injury and second injury; and should be treated as a claim in respect of both injuries. However, even if there were some doubt about whether the claim was also in respect of the first injury, the claim cannot be properly considered to be referable to the first injury, and the absence of any claim does not preclude the exercise of the Court’s discretion under section 182(3) of the Act: see Prime v Colliers International Pty Ltd [2006] NTSC 83 at [27] – [29].

18. Section 182(3) of the Work Health Act (as it then was) provided as follows:

    The failure to make a claim within the period specified in subsection (1) shall not be a bar to the maintenance of the proceedings if it is found that the failure was occasioned by mistake, ignorance of a disease, absence from the Territory or other reasonable cause.[24]

19. The worker submitted that the delay in making a formal claim falls within the “other reasonable cause” ground specified in section 182(3).

20. The worker relies upon the consideration of the meaning of “other reasonable cause” in Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 :

    Amongst other factors which may be classed as a reasonable cause as a matter of law is a “hope and expectation that a worker might make a complete recovery”.[25]

21. The worker also seeks to rely upon the following exposition of “reasonable cause” in Commonwealth v Connors (1989) 10 AAR 398 where Northrop and Ryan JJ approved the judgment of the Full Court of the Victorian Supreme Court in Black v City of South Melbourne:

    A cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man.” [26]

22. It was submitted on behalf of the worker that:

    In the present case the worker was determined to remain with the Police Force, and subject to certain accommodations being made was optimistic of her ability to do so and manage her injury within the scope of her employment. The worker “always intended to return to work” (T193 – T 194, T 205, T 230). The worker’s hope and expectation was always to return to unrestricted duties. The worker’s intention was to make her career within the Police Force. A formal claim was not made because the worker did no want to jeopardise her career and always hoped she would make a complete recovery.[27] 

23. The worker submitted that “the matter should also be seen in respect of the second injury in the context of her return to work program (T214, W69, T215, T487, T488 and T489)”.[28]

24. The following submission was made on behalf of the worker:

    The worker was apprehensive that submitting a claim for compensation would result in further victimisation and harassment (given the evidence of Dr Tracey at T664) and would create an administrative nightmare. The alternative of unlimited sick leave and dealing with the injury in–house is consistent with a reasonable standard of conduct. The worker ensured there were open channels of communication regarding her injury, the management of the injury and the scope of her employment. Given the worker’s fears and the lack of prejudice to the employer it was reasonable that submitting a formal claim was not necessary.

    It was only after the worker was forced to leave her employment of the Police Force that she submitted a claim. The formal claim for compensation was submitted because the worker felt safe from the harassment and victimisation of the employer. Submitting a claim whilst still employed would have placed the worker in a more vulnerable position, and the employer was still involved in the treatment of her injury (see T195, T230, T326-T327)…

    Regardless of the lack of formal claim for compensation the employer still had notice and was intimately involved in the treatment of the worker’s injury.[29] 

25. By way of opposition to the worker’s submissions, the employer pointed out that “Dr Tracey had recommended to the worker that she make a claim in November 2003, when she was in a distressed state during the mediation process, after she had become “aware of the CAP file over the investigation of the dog complaint – see Exh W94, page 136.” [30]

26. The employer relied upon Dr Tracey’s explanation why the worker did not make a claim following that recommendation. The doctor explained that it was more economically advantageous for police officers to go on sick leave (which was unlimited) than to go on worker’s compensation which might result in reduced pay after a few months.[31]

27. However, the employer conceded that Dr Tracey had also explained that “the compensation process is very stressful, so it would just be an added stress for her”.[32]  It also conceded that Dr Tracey was of the opinion that the reason why a claim for compensation was not made was due to fear of loss of income and the added stress.[33]

28. The employer relied upon the following evidence given by Dr Tracey at page 664 of the transcript:

    Fear of loss of income and additional stress that may – of course, if somebody did make a worker’s comp claim, Doctor, they can then be managed in a different way, can’t they?  Well, theoretically, yes but…

    Yes. In practice with stress cases they can be – and with the Police they can be subjected to just as much bullying as whether they’ve got a worker’s comp claim or being managed in house, and the HR department in the Police, in fact, try to manage many of these situations in –house. And this was the case with Roberta with her return to work plan, which was exactly the same or very similar to what would have happened with the worker’s, because you’re then subject to the worker’s comp claim.[34]

29. The employer made the following submissions:

    From 2004 onwards the employer was severely constrained in its ability to obtain a diagnosis of the worker’s condition, pursue medical or other treatment for the worker, or assess the worker’s capacity and suitability for work. The rights and obligations which operate between employer and worker in the management of a compensation claim were noticeably absent. This was at a great cost to the employer.

    The employer sought to have the worker medically examined in 2004 after the first injury. The worker strongly resisted being examined, as evidenced by the exchange of emails between the worker, the Police Association and Assistant McAdie in late 2004 (Exh E 165).[35]

30. The employer relied upon the following evidence given by Assistant Commissioner Kelly regarding his observations of the worker in April 2005:

    As a personal observation I got the distinct impression from Michael Grant that he genuinely believes that Roberta has an illness that may include a persecution complex.  I wonder whether Roberta is getting the necessary and appropriate treatment by a doctor, or whether she is being treated as a person who has a genuine grievance because the treating doctor believes what he is being told by her (exh W 150).[36]

31. The employer made this submission:

    If the worker had submitted a work health claim, the employer would have been at liberty to pursue that possibility without being dependent on the worker’s consent to do so. With the benefit of hindsight, it can be said that identification of that question could have avoided any further injury being sustained by the worker in 2006 and could have resulted in medical treatment and rehabilitation that actually resolved the worker’s condition.

    The employer was only able to secure the worker’s return to work in June 2005 under the terms of an agreement which provided for her placement in a CIB unit. Working as a detective was critical to her. The employer had no way of directing the worker to work in any alternative setting without facing the worker refusing outright to return.[37]

32. In submitting that the worker did not make a claim for economic reasons the employer relied upon the following evidence given by the worker at page 560 of the transcript:

    You considered at various time putting in a work health claim? It was raised, probably by my Doctor. But, because I knew that we had unlimited sick leave and I always intended to go back to work, I didn’t want it to be an option.

    But you agree on several occasions, Dr Tracey suggested to you that it would be appropriate to put in a work health claim? I don’t know what he suggested. It was discussed and I said that I didn’t want to.[38]

33. The employer also submitted that a further likely reason for not submitting a claim was because of a risk of being transferred to another section and in that regard relied upon the worker’s evidence at pages 560- 561 of the transcript.[39]

34. In that regard the worker gave the following evidence:

    So, you’re telling us that you had no idea that there was a connection between your making a work health claim and the possibility that you could be moved away from your detective’s work. No, because I’d made work health claims before for physical injuries and that didn’t take me off the road, so why would it be any different. I have no idea what they did.[40]

35. It was submitted by the employer that the worker’s claimed ignorance was “transparently false”.[41]

36. The employer went on to deal with the employer’s inability to “manage the worker’s situation in the way that it could have if it was a work health claim”.[42] The employer relied upon the emphasis placed by Mildren J in Maddalozzo v Maddick (1992) 108 FLR 59 on the importance of injury prevention and appropriate rehabilitation as part of the legislative scheme.[43] The employer relied upon His Honour’s observations and comments therein as providing “guidance in considering the underlying policy reasons for the requirement to submit a claim form within the time limited by the Act”.[44]

37. The employer submitted that the worker had failed to bring herself within one of the statutory excuses contained in section 182(3) of the Act. In particular the employer relied upon the decision in Van Dongen v NT of Australia (2005) 16 NTLR 169.[45]

38. In that case the worker had failed to make a claim within the statutory six month period. The worker argued that during the relevant period he had suffered no loss of earnings nor had he incurred medical and other compensable expenses. As pointed out by the employer, “unlike in the present case …the worker in that case continued working whereas here, the worker stopped working but utilised her unlimited sick leave entitlements”.[46]

39. In rejecting the worker’s application for an extension of time under section 182(3) of the Work Health Act (as it then was) Martin (BR) CJ held at [173]:

    On one view, it might seem odd that a worker who has suffered an injury in the course of the worker’s employment resulting in an inability to carry out properly the terms of employment, but who has not thereby suffered a compensable loss, should be required to make a claim within the six month period or run the gauntlet of establishing that the failure to make the claim within that period was occasioned by reasonable cause. However, the interpretation for which the appellant contended would leave the employer without notice of the inability brought about by injury sustained in the course of employment until such time as the worker sees fit to inform the employer of that inability. In the meantime the worker is recompensed by full salary notwithstanding that the worker is unable to carry out properly the terms of the worker’s employment. In addition, the employer is denied the opportunity of placing the worker in appropriate conditions of employment and of both avoiding exacerbation of the injury and arranging appropriate rehabilitation.” [47]

40. The employer pointed out that in the present case the worker had in fact suffered a compensable loss in that she ceased to be paid salary and was paid sick leave from 19 September 2004 onwards. The employer submitted:

    The employer did have notice of an inability brought about by illness, but was unable to obtain further information to confirm the situation until after the worker had been seen by its doctor in January 2005 under the inability provisions of the Police Administration Act.[48]

41. The employer went on to submit:

    Even if the availability of sick leave meant that the worker did not suffer a compensable loss, that does not excuse her from the requirement to lodge a claim for compensation within the relevant time period. Mildren J held (Van Dongen at [178] ) that “it is well established that if the failure to be able to comply was due to the fault of the person whose responsibility it was to comply, the failure cannot be excused”.[49]

42. Reliance was also placed on Riley J’s observations in Van Dongen (supra) as to the circumstances relevant to determining whether the worker in that case had reasonable cause for failing to make a claim within the statutory six months.[50] The relevant circumstances were:

    1.the worker was familiar with the work health scheme;

    2.he was aware, within the relevant period, that he had suffered a mental injury as a consequence of the first incident in 1996;

    3.in pursuing a crimes victims assistance claim made in November 1996 which related to the first incident as well as a second incident the worker sought to identify part of his claim as relating to a mental injury;

    4.despite that knowledge he made no work health claim for mental injury in respect of either incident;

    5.during the relevant period the worker knew that he was unable to fulfil all of his operational duties and that if he disclosed that state of affairs to his employer, he would probably be taken off such duties with a consequent loss of income.[51]

43. The employer sought to rely upon Riley J’s conclusion in that case:

    This is not a case where the appellant was without the information necessary to enable him to make a reasoned decision or where there was some aspect of his mental condition which contributed to his failure to make a claim. He failed to make a claim and later, well outside the relevant period, changed his mind. His reasons for the failure were not those to be expected of a reasonable person and were not consistent with a reasonable standard of conduct which might be expected to cause such delay. In this case there was no reasonable cause for the failure to make a claim within time.[52]

44. It was submitted on behalf of the employer that “those observations apply with equal force where, as here, the worker had in fact obtained medical treatment and, notwithstanding advice received from her doctor to make a work health claim at a much earlier stage ( November 2003, Exh W 94, p 136), the worker deliberately delayed in submitting a claim for compensation for her own reasons during which time her condition deteriorated to the point of total incapacity for an extended period of time”.[53]

45. The worker made a number of submissions to the effect that the employer had not been prejudiced by the worker’s failure to make a claim within the prescribed six month period.[54] The worker made the following specific submissions:

    ·The employer was never “severely constrained “from being involved in the treatment of the worker’s injury or rehabilitation. The worker pointed out that the worker was assessed by independent medical practitioners, Dr Meadows and Dr Giese (Exh W66 and W99) at the employer’s bequest in 2004. The worker was also on a return to work management program (RTWMP) in relation to the 2004 injury. That program was created in consultation with the employer and the worker and was “designed to reintroduce the worker to the workplace and to provide a psychologically supportive work environment”;[55]

    ·The employer was unable to meet its obligations under the return to work program. The employer failed to meet “its obligations under the RTWMP in providing a psychologically supportive workplace and providing weekly reports to the worker as required”. The RTWMP and the involvement of Bilato in overseeing the worker’s re-entry into the Police Force “demonstrate the employer had full knowledge of the particulars of claim and was managing the injury, albeit problematically”;[56]

    ·The employer’s submissions have failed to “identify how the organisation would have differently responded if a formal claim by the worker had been made”;[57]

    ·If the worker had submitted a formal claim in respect to the injury she could have been required to be independently assessed. But this occurred in 2005. The allegations that the worker strongly “resisted being examined are of no consequence given that she was examined”;[58]

    ·A secondary step if the worker had submitted a formal claim would have been a return to work under the guide of a RTWMP. In fact this occurred , and “it was the employer’s own actions which created the circumstances for the failure of the RTWMP”;[59]

    ·The employer’s submission that further injury could have been avoided if a formal claim had been made in relation to the 2004 injury is also without basis. The worker was on a RTWMP in respect to the 2004 injury. The injury that the worker sustained in 2006 was due to “a failure to meet the requirements of the RTWMP and Heath’s desire to remove the worker from the unit”;[60]

    ·The employer’s submission that “the worker’s failure to submit a formal claim was for economic reasons is a mischaracterisation”. Firstly, all “the necessary notification and information was given to the employer by the worker”. Secondly, “the worker submits that the answers given at T560 are not in relation to any economic reasons. Instead it is a nuanced appreciation of the workplace reality within the Police Force; that while a worker’s compensation claim for physical injury is accepted within the workplace that a worker’s compensation claim for a psychological injury would be detrimental to her career and advancement within the Police Force. This is especially the case given that the worker ‘always intended to go back to work’”;[61]

    ·Van Dongen is distinguishable from the present case. In Van Dongen the employer had no notice of the psychological injury and hence was “denied the opportunity of placing the worker in appropriate conditions of employment and of both avoiding exacerbation of the injury and arranging appropriate rehabilitation”. This is clearly not the case in the present case where the employer had full knowledge of the worker’s injury. The employer and worker had agreed to a RTWMP, which was implemented to manage the 2004 injury. There can be “no suggestion that the employer was in the same position as in Van Dongen where the employer had no knowledge of the psychological injury until a significant period of time had elapsed since the injury was sustained”. In the present proceeding the channels of  communication were open and the employer had extensive knowledge of the injury and the worker’s inability due to that injury; [62]

    ·The RTWMP was a facade “behind which the employer had the appearance of facilitating the worker’s re-entry into the Police Force. It is clear from Heath’s evidence that having a member of the unit on a RTWMP was disruptive to the managerial efficiency of the Palmerston CIB and he attempted, and succeeded in removing the worker from the unit. Heath was disingenuous at best in his attempts to achieve the goals of the RTWMP”;[63]

    ·The employer in fact facilitated the worker’s failure to submit a claim in relation to her injuries. The “internal structures of the employer’s organisation meant that the worker was never aware of the necessity of lodging a claim given that the process was handled ‘in –house’”. Reasonably, the worker had notified the employer of the injury and steps had been put in place to deal with the injury and to facilitate the worker’s rehabilitation. In fact the underlying substance of the Act was complied with”.[64]

1. Section 182(3) provides that the failure to make a claim within six months after the occurrence of an injury shall not be a bar to the maintenance of proceedings if it is found the failure was occasioned by mistake, ignorance of disease, absence from the Territory or other reasonable cause.

2. The issue between the parties is whether the failure of the worker to make a claim for compensation within six months of the occurrence of her injury was occasioned by “other reasonable cause”.

3. Riley J in Van Dongen v NTA (2005) 16 NTLR 169 at [27] - [28] discussed “other reasonable cause”:

   In Black v City of South Melbourne [1963] VR 34 the Full Court compared the expression “reasonable cause” with the concept of mistake under s34(1) of the Limitation of Actions Act 1958 (Vic). The Court noted (at 38) that the inquiry in relation to reasonable cause justifies “a more liberal attitude” being adopted to its interpretation compared with “mistake” and went on to observe that the expression refers to “some act or omission which operated to prevent the giving of notice, and which was an act or omission which was in the circumstances reasonable.”

   Some further observations regarding the expression can be made. The test of reasonableness is an objective one: Tracy Village Sports and Social Club v Walker (1992) 111 FLR 32 at 41 It is a “cause which a reasonable man would regard as sufficient, a cause consistent with a reasonable standard of conduct, the kind of thing which might be expected to delay the giving of notice by a reasonable man”: Quinlivan v Portland Harbour Trust [1963] VR 25 at 28. A hope or expectation that a worker may make a complete recovery may amount to reasonable cause and may more readily do so where the injury is latent, difficult of diagnosis or possibly, difficult of prognosis: Fenton v Owners of Ship “Kelvin” [1925] 2 KB 473 at 482; Butt v John W Eaton Ltd (1920) 29 CLR 126.”

4. Riley J went on to observe at [30]:

   It is clear that each case must be assessed upon its own facts and circumstances… the whole of the circumstances of the case as they impact upon the reasonableness or otherwise of the conduct of the worker must be considered in order to determine whether reasonable cause is established. It would be an artificial exercise to do otherwise.

5. Martin (BR) CJ in Van Dongen v NTA (supra) at [6] stated: “While a delay beyond six months occasioned by the hope of recovery might amount to reasonable cause in appropriate circumstances, if a worker fails to disclose to the employer an inability to carry out properly the terms of employment caused by injury in the course of employment, the absence of compensable loss will not necessarily amount to reasonable cause”

6. As stated in Re Scutts and Department of Defence (1998) AATA 13085 “the test as to whether there was … a reasonable cause is an objective one but one which takes into account the subjective circumstances of the applicant in each case”.

7. In a similar vein in Re Willis and Australian Telecommunications Commission and Commonwealth (1989) 19 ALD 665 at 675 the Tribunal stated at [34]:

   …the consideration of the facts in each case against those principles shows that each has applied the test by looking at what was a reasonable course of conduct for the plaintiff in the circumstances in which he found himself. They have not judged the plaintiff by reference to some hypothetical man in hypothetical circumstances. It is an objective test taking into account the subjective circumstances of the plaintiff in each of those cases.

8. In Bear v State of South Australia (1981) 48 SASR 604 Judge Russell QC said:

   The word “reasonable” is, of course, a relative term. The facts of the case must therefore be considered before determining whether or not the cause is reasonable. Furthermore, the word “reasonable” has in law the prima facie meaning of reasonable in regard to those existing circumstances of which the actor, called on to act reasonably, knows or ought to know: Re a Solicitor [1945] KB 368 at 371.

9. It is clear law that the relevant period for the purposes of s 182(3) is the initial six months period following the injury on or about 10 September 2004: see Murray v Baxter (1914) 18 CLR 622; Tracy Village Sports and Social Clubv Walker (1992) 111 FLR 32; Van Dongen v NTA [2005] 16 NTLR 169.

10. Furthermore, once “reasonable cause” is found to exist for failure to make a claim within the prescribed period, the fact that no claim was made when the period of “reasonable cause” came to an end does not bring the proviso back into play.[65]

11. In terms of determining whether there or not reasonable cause has been established, the present case presents some difficulties due to the nature of the injuries and the circumstances under which those injuries were sustained, as well as the conduct of both the employer and the worker at all material times.

12. The starting point is to identify the injuries that the worker says that she suffered during the course of her employment and the date of the occurrence of those injuries.

13. On 15 September 2004 Dr Tracey wrote to the Commissioner of Police to the following effect:

    You will recall our meeting about 16 months ago when I expressed my concern about a number of matters including the matter involving Senior Constable Roberta Barnett and Commander George Owen. There appears to have been no final closure as yet.

    Recently there was a meeting between Mrs Barnett and Assistant Commissioner Graham Kelly when she was advised that this would be resolved before Mr Owen went on leave but this did not eventuate.

    She feels that having this matter unresolved and without closure (regardless of whether this is in her favour or against her) is having an adverse effect on her performance and she is beginning to have negative thoughts of her future in the organisation.

    I think that it is fairly imperative for Mrs Barnett’s general health and well being that this matter reach some form of final resolution as soon as possible.

    She is currently on sick leave.

14. The worker relied upon this correspondence as constituting notice of injury to the employer. [66] The employer denied the worker’s allegation, asserting that it would refer to Dr Tracey’s letter for its proper interpretation.[67]

15. According to the Amended Substituted Statement of Claim “from or about 10 September 2004 until about 31 January 2005 the worker was diagnosed with a work related stress injury and utilised her sick leave and continued to hope that her complaints would be dealt with”.[68] The employer denies those allegations, claiming that any injury that occurred on 10 September 2004 was the result of reasonable disciplinary or administrative action or a result of the worker’s failure to obtain a promotion or benefit.[69]

16. As a consequence of the pleadings the date of the first injury should be treated as about 10 September 2004. Indeed this was the date on which sick leave commenced.[70] The worker did make not make a claim for compensation in respect of the 2004 injury within the six month period after the occurrence of that injury as required by section 182(1)(a) of the Work Health Act. The issue, therefore, is whether the claim for compensation was not made within the relevant period through “other reasonable cause”.

17. On or about 13 January 2005 the Chief Medical Officer (Dr Meadows) prepared a report wherein he expressed the opinion that the worker was suffering from the medical condition of “anxiety/depression”.[71] Dr Meadows considered that the worker was medically fit to resume all duties of her current position. As to whether a further period of sick leave was recommended he stated: “only if situation cannot be satisfactorily resolved”.  He also made the following comment or recommendation:

    That in the event of any conflict, requirement to explain actions, disagreement – immediate mediation by independent person.

18. Although Dr Meadow’s report dated 14 April 2005 did not come into existence until after the relevant six month period, that report documents the antecedent interpersonal relationships between the worker and the employer as well as throwing light on the relationship between the worker’s injury and her return to work. The following is extracted from the doctor’s report:

    I interviewed Detective Barnett on 13 January 2005. During this long session it became clear that there were many issues of significant conflict within the police that Detective Barnett had become embroiled in, and which, if handled more appropriately by both sides, would not have escalated to the level they did…

    Allegations made by Detective Barnett are obviously recorded without my being privy to the “other person’s” version of events, but the nature and genuineness of the testimony deserves to be taken on merit as it points to a known problem within many male-dominated service entities.

    What became apparent was the inability of the force to adequately deal with a confrontation of that culture with an individual who was not prepared to back down. Instead of acquiescing and keeping quiet, as she was “supposed to do” in that system, she has challenged the authority process, in effect demanding some personal justice, and as a result has been (and still is) under severe stress, which has led to the periods off work, and a perception of continuing harassment by certain sections of the police.

    Her return to work is predicated on resolving these extensive issues, which involves some degree of acceptance that problems do exist within the hierarchical system…

19. Despite the worker’s allegation that after the Chief Medical Officer’s report of 13 January 2005 she had ceased to be incapacitated for work, the evidence shows otherwise. The worker’s treating doctor certified the worker unfit to work from September 2004 until her eventual return to work on 31 May 2005 on a return to work management plan – and even then he restricted the worker’s hours to 3 days per week in the initial stages of the return to work program.[72]

20. In Exhibit  W67 the worker demonstrated her continuing illness, preventing her from returning to work:

    I have been on sick leave, stress leave, since 10 September 2004 as a result of the unresolved harassment complaint that I made in regard to Commander Owen, Supt Kerr and Sgt Foley. Unfortunately the whole matter came to a head in September and I took it out on Sgt Sodoli which I am deeply sorry for. Since then I have been too ill to return to work.

    I would like to return to work but I feel very angry and distressed about this whole matter. I feel thus far that the current outcomes are inadequate as nothing has been resolved in my favour at all. I do not expect everything to be in my favour but I expect justice to be seen to be done. I am the victim in this matter and feel that I continue to be victimised. If you as my employer are satisfied that what has occurred is the best that will be achieved, then I shall accept the decision and endeavour to get on with it.[73]

21. It is important not to overlook Dr Tracey’s evidence. Although he had recommended the worker to make a claim for compensation he pointed out that as police officers have unlimited sick leave, and if they go on worker’s compensation they are liable to suffer a reduction in pay after the first 26 weeks; “ it’s a general feeling amongst members that they don’t go on worker’s compensation”. Dr Tracey went on to say:

    Now, the Commissioner of Police has discretion to top up their pay and in my experience members who have a physical injury or sustain a physical injury in the line of duty, unquestionably have their pay topped up. However, it’s also my experience dealing with other members that if they take worker’s compensation for stress leave and they’re not the flavour of the month, which is usually the case in stress cases, the Commissioner refused to top them up.[74]

22. Dr Tracey was sure that the worker was aware of that practice.

23. However, he did not identify that as the sole reason for the worker not making a claim:

    Well that would be one of the things and the other thing is the worker’s compensation process is very stressful, so it would jut be an added stress for her.[75]

24. Dr Tracey gave the following evidence at page 664 of the transcript::

    …if somebody did make a worker’s compensation claim… they can be managed differently?  Well, theoretically yes, but in practice with stress cases they can be – and with the Police they can be subjected to just as much bullying as whether they’ve got a worker’s compo claim or being managed in-house, and the HR Department in the Police, in fact, try to manage many of these situations in house. And this was the case with Roberta with her return to work plan, which was exactly the same or very similar to what would have happened with the worker’s, because you’re then subject to the worker’s comp claim.

25. The worker gave the following evidence at page 560 of the transcript:

    You considered at various times putting in a work heath claim? It was raised, probably by my doctor. But, because I knew that we had unlimited sick leave and I always intended to go back to work, I didn’t want that to be an option.

26. She said that the prospect of making a claim was discussed with Dr Tracey; however, she said that she didn’t want to make a claim.[76]

27. The issue is, were the reasons for the worker failing to make a claim within the relevant six month period those to be expected of a reasonable person and consistent with a reasonable standard of conduct which might be expected to cause such delay: see Van Dongen v NTA (supra) at [39] per Riley J.

28. This is not a straightforward case. It requires a very careful analysis of “the whole of the circumstances of the case as they impact upon the reasonableness or otherwise of the conduct of worker”. In applying the requisite objective test it is important to take into account the subjective circumstances of the worker.

29. Although the worker was aware that she could have made a claim for compensation, she made a conscious decision not to do so. She decided not to make a claim because she had unlimited sick leave and always intended to go back to work.

30. Although the employer submitted that the reason why the worker did not make a claim was for purely economic reasons – in effect considering that this was where her best interests lay[77]  - I consider that this represents a far too simplistic analysis of the worker’s conscious decision not to make a claim.

31. First, it appears to have been common practice within the NT Police Force for police officers to go on sick leave rather than make a claim for compensation. The worker’s decision must be viewed within the context of that pervading practice.

32. Secondly, there was another reason for the worker not making a claim and taking sick leave in lieu – and that was an intention to return to her employment as a police officer. In my opinion, that intention was fully genuine, and entirely consistent with a hope and expectation on the part of the worker that she may make a complete recovery.

33. Although the worker did not, in explicit terms, express a hope and expectation of full recovery, I consider that it is reasonable, on the whole of the evidence, to impute that mental outlook to the worker. It is clear on the evidence that the worker’s mental condition was engendered by her perception that her various complaints had not been adequately dealt with by the employer. It is equally clear that she hoped that those complaints would ultimately be appropriately dealt with. Dr Meadows was of the view that the worker’s return to work was predicated on resolving the conflict issues between the worker and the employer. I think that it is reasonable to infer from those circumstances that the worker had a hope and expectation that she may make a full recovery from her injury, and thus be able to return to her employment.

34. Furthermore, it strikes me that the worker’s decision to take sick leave, rather than to become embroiled in the compensation process,  was consistent with her intention to return to work, such return being dependant upon the resolution of the conflict issues between herself and the employer.

35. In my opinion, it is important to bear in mind that a worker need only establish that the failure to make a claim was occasioned by “reasonable cause”. The word “occasioned” connotes causing or bringing about something. In order to establish “reasonable cause” a worker need only establish that the postulated “reasonable cause “materially contributed to the failure to make a claim. Although the worker’s decision to opt for sick leave for economic reasons could not by itself excuse the worker’ failure to make a claim, I am satisfied that the worker’s intention to return to work predicated upon an expectation or hope of recovery materially contributed to her failure to make a claim in relation to the first injury. 

36. In my opinion, reasonable cause for failing to make a claim in relation to the first injury within the specified time has been established. In reaching that conclusion I draw comfort from the fact that in Re Brady and Australian National Railways Commission (1987) 13 ALD 187 at 191 the Tribunal held that the applicant had reasonable cause for failing to make a claim within six months of his injury because sick pay paid to him was more than compensation and he hoped to get back to work.

37. Paying due regard to the need to examine the whole of the circumstances as they impact upon the reasonableness or otherwise of the worker’s conduct in the present case, the following is duly noted:

    ·the worker notified the employer of her injury;

    ·the worker was independently medically examined by Dr Meadows; and

    ·a return to work management problem was created on 26 May 2005 in relation to the 2004 injury on an “in house” basis (rather than in the context of a managed compensation claim), resulting in the worker’s return to employment on 1 June 2005.

38. This is not a case where the worker was not managed with a view to facilitating her rehabilitation and return to the work force. Although the worker did not return to her employment within the relevant six month period, the trigger for that process did occur during that time frame. The outcome on 1 June 2005 was entirely consistent with the worker’s expressed intention to always return to work. In my opinion, those matters form part of the whole set of circumstances that bear upon the reasonableness or otherwise of the worker’s conduct, and which must be considered in order to determine whether reasonable cause has been established.

39. When considering the reasonableness of the worker’s failure to make a claim within time it is important to bear in mind the legislative regime that applies to police officers – via the Police Administration Act - who suffer from medical incapacity.

40. Police officers are entitled to unlimited sick leave, with a certificate from a medical practitioner certifying the police officer is unable to perform their duty.[78] However, if Northern Territory Police wish to determine the nature of a member’s illness, then it is entitled to have that member medically examined by an approved medical practitioner in accordance with s 91 of the Police Administration Act.[79] As pointed out in the worker’s submissions, that statutory procedure enables the Northern Police to determine if a police officer:

    ·is unfit to perform the duties of his or her present position but may be able to perform efficiently in the same or similar position with modified duties, or in another job;

    ·if alternate placements are recommended then the medical practitioner specifies the type of duties suitable or not suitable to be performed by the police officer; and

    ·alternatively, the medical practitioner may recommend a program of vocational assessment, rehabilitation or retraining.[80]

41. It is relevant that the worker was referred to the Chief Medical Officer, Dr Meadows, in January 2005 - still inside the relevant six month period - to determine if she was fit to perform her duties.

1. It is important to take into account the internal legislative structure and procedure for dealing with police officers, suffering from a medical incapacity, as a circumstance relevant to the determination of whether the worker had a reasonable cause for failing to make a claim within six months of the date of occurrence of the first injury. That regime appears to provide an alternative to the worker’s compensation process. It amounts to an “in house” regime, applying what might be best described as a policy of “early intervention”.

2. In my opinion, the existence of that internal regime impacts upon the reasonableness of the worker’s conduct, and, indeed, supports the finding that the worker has established “reasonable cause” for failing to comply with s182(1(a)) of the Act with respect to the first injury.

3. The worker’s counsel suggested that there were two explanations for the worker’s failure to make a claim within time that would qualify as “reasonable cause”. However, I consider that neither was reasonably supported by the evidence.

4. Dr Tracey gave evidence that had the worker made a claim for compensation, then that would probably have caused her added stress. However, there is no evidence, or insufficient evidence, that the worker did not make a claim for that reason. Had there been greater evidential support, then that might have qualified as “reasonable cause”.

5. It was submitted that the worker was apprehensive that submitting a claim for compensation would result in further victimisation and harassment (given the evidence of Dr Tracey at page 664 of the transcript). However, the evidence does not sufficiently impute such a state of mind to the worker. Again, had the evidence been more cogent, then such a state of mind might have qualified as “reasonable cause” within the meaning of s 182(3) of the Act.

6. It now remains to consider the failure of the worker to make a claim within time in relation to the second injury in 2006.

7. The second injury is particularised as “adjustment disorder with anxious and depressed mood”. This injury is alleged to have been sustained on or about  13 April 2006 (not at all clear) as a result of the bullying and inappropriate behaviour of Acting Superintendent Andrew Heath.

8. Again the relevant period for the purposes of s 182(3) is the initial six months period following the injury in April 2006.

9. The fact that the worker only made a claim for compensation after she decided to leave her employment as a police officer is a critical circumstance for the purposes of the Court’s consideration of “reasonable cause”.

10. At the time of the second injury the worker was on a return to work program. Although the worker again went off on sick leave, it is clear from Ms Bilato’s report of 18 May 2006 that the return to work program had not been abandoned by the employer:

    Ms Barnett’s return to work under A/Superintendent Andrew Heath is untenable and would be strongly challenged on medical grounds.

    Whilst Ms Barnett has not yet received a medical clearance it is recommended that consideration be given to facilitating Ms Barnett’s return to Darwin Investigation Unit, where she was stationed prior to her placement on the Supervised Management Plan.

11. In her subsequent report dated 22 May 2006 Ms Bilato wrote:

    As outlined in the Progress Report Ms Barnett’s case is reasonably complex and requires sensitivity and commitment from all parties. In recent times Ms Barnett has cooperated fully with her treatment providers however it appears that it is her behaviour that is again being scrutinised and questioned rather than the reasonableness of A/Superintendent Heath’s actions.

    Whilst I will continue to work closely with your staff on the particulars of this case I would appreciate the opportunity to meet with you to discuss the more systemic issues surrounding supervised management plans and rehabilitation management.

12. In her next report dated 30 August 2006 Ms Bilato made the following observations in relation to the worker’s treatment intervention and rehabilitation :

    Ms Barnett has continued with regular psychological intervention under the treatment of clinical psychologist, Jan Isherwood-Hicks. Dr Isherwood – Hicks confirms that Ms Barnett has been committed to active participation in treatment, including implementing strategies in impulse control.

    Ms Barnett has expressed strong motivation to return to work for several months. Her preference is to be able to resume her substantive duties as a Detective within Darwin Investigation Unit and this option was raised with Commander Kate Vanderlaan at a meeting attended by Vicki Lewfatt and the writer on 27 June 2006.

    Whilst off work Ms Barnett has initiated and maintained a high level of activity and fitness with the intention of enhancing work capacity. Her attitude towards her rehabilitation has been very positive and she has demonstrated a strong commitment towards achieving her return to work goal. Ms Barnett has developed a good awareness of the triggers that have negatively impacted her work relationships in the past. She and her treating psychologist have expressed confidence in her ability to manage such stressors in the future.

13. Ms Bilato provided the following summary and recommendation:

    As outlined in previous correspondence Ms Barnett had adhered to medical and rehabilitation guidelines with respect to the management of her depression symptoms and was making progress prior to receiving a copy of A/Superintendent Andrew Heath’s Internal Memorandum.

    It is recommended that Ms Barnett be given an opportunity to trial a return to work at the Darwin Investigation Unit under the direction of Commander Kate Vanderlaan and Superintendent Kris Evans.

14. In her next report dated 2 November 2006 Ms Bilato stated:

    Uncertainty surrounding her future employment is understandably causing Ms Barnett some worry and following receipt of the NT Medical Officer’s report it is important that Ms Barnett receive clear information and advice about her employment and entitlements.

    Ms Barnett has developed a good level of awareness of those factors that exacerbate her symptoms of depression and is finding effective ways to reduce their impact on her as well as other family members. However, at this time ongoing psychological and medical management is imperative to maintain the gains she has made.

15. In his report dated 16 October 2006 Dr Giese provided his medical assessment of the worker. In that report he stated:

    Constable Barnett has had depression and anxiety due to ongoing issues with management and interpersonal relationships with other members of the NT Police Force which are contributing to her continuing symptoms and the failure to resolve her work issues.

    I recommend she return to her GP, a psychologist and rehabilitation provider to continue to examine all possible avenues to return her to a meaningful, responsible position in the work force.

16. In his report dated 13 December 2006 Dr McLaren observed:

    At present, she is not receiving assertive treatment but, in any event, I feel the chances of a successful return to work are now close to zero. There is no question that, in these types of cases, the earlier assertive treatment is instituted, the better the outcome. This matter has been going on for years and she has now had something like 18 months off work in all. I do not believe there is any reasonable chance of reinstatement to her former post or, indeed, of rehabilitation to a post with similar responsibility in the NT Police Dept.

17. In light of the evidence of both Ms Bilato and Dr McLaren, I am satisfied as to the following:

    ·At the time of her second injury the worker was on a return to work program;

    ·While the worker went off on sick leave, both the worker and the employer continued to pursue the worker’s return to her employment as a police officer;

    ·During that period until the receipt of Dr McLaren’s report the worker demonstrated a very positive attitude towards her rehabilitation and a strong commitment to achieving her return to work goal;

    ·It was not until Dr McLaren’s December report ( which only appeared after the six months from the date of the second injury) that the prospects of a return to work became “close to zero”;

    ·It was not until Dr McClaren’s report that the worker accepted that she could not return to her former employment;

    ·That at least up until Dr Giese’s report the employer actively supported, and was working towards, the worker’s return to work.

18. Owing to the mindset of both the employer and the worker and their mutual goal to achieve a return to work during the relevant six month period, I consider that the worker has established a “reasonable cause” for not making a claim in relation to the second injury within time.

19. Pursuant to s 182 (3) of the Act I make an order extending the time within which the worker could make a  claim for compensation in respect of the first and second injuries.

20. In the event that the Court has erred in finding that the worker had “reasonable cause” for failing to make a claim in relation to the first injury within the prescribed six month period, the second injury (even if it be an aggravation, exacerbation, recurrence or deterioration of the first injury) is distinct from the earlier injury and is, for the purposes of the Act, to be regarded as an injury itself. As the Court has found that the worker has established a reasonable cause for failing to make a claim in relation to the second injury there is no bar to the maintenance of proceedings seeking payment of worker’s compensation with respect to that injury.

    DEEMED ACCEPTANCE OF THE CLAIM

21. The following was pleaded in paragraphs 88 to 90 of the Amended Substituted Statement of Claim:

    [88] The Territory Insurance Office on behalf of the employer disputed the claim by Notice of Decision and Rights of Appeal dated 15 February 2007 which was posted on an unknown date to the worker c/- Ward Keller Lawyers GPO Box 330 Darwin and received in the ordinary course of post by Ward Keller on behalf of the worker on 26 February 2007 (“the Notice of Decision”).

    [89] The Notice of Decision stated the employer disputed liability for the worker’s claim pursuant to Section 85 of the Act, but did not state that the employer was deemed to have accepted liability for compensation payable in accordance with Section 87 of the Act, or payments of such compensation would only cease 14 days after the date on which the employer notified the workers of its decision.

    Particulars

    The worker will rely on the form and content of the Notice of Decision and Rights of Appeal signed by L Jackson on behalf of the Territory Insurance Office for the employer and dated 15 February 2007 for its full force and effect.

    [90] The Notice of Decision was dated and served more than 10 working days after service of the claim on the employer and the employer is deemed pursuant to section 87 of the Act to have accepted liability for compensation payable under Subdivisions B and D of Division 3 of the Act from 12 September 2004 to date and continuing, or alternatively from 12 September 2004 until 12 March 2007 inclusive being 14 days after the day on which the Notice of Decision was served on Ward Keller on behalf of the worker.

22. In its Amended Defence to the Amended Substituted Statement of Claim the employer responded as follows:

    [45] The employer denies the allegations contained in paragraph 87 and says that the claim form was not accompanied by a current medical certificate as required by section 82(6) of the Act. The worker first served a current medical certificate upon the employer on 8 March 2007 and that date is the deemed date of delivery of the claim form to the employer.

    [46] The employer admits that it disputed the claim by Notice of Decision and Rights of Appeal dated 15 February 2007 but otherwise denies the allegations contained in paragraph 88.

    [47] The employer admits the allegations contained in paragraph 89 and says that by reason of the matters pleaded in paragraphs 42 and 43 above, the Notice of Decision was provided to the worker within the time required under the Work Health Act.

    [48] The employer denies the allegations contained in paragraph 90 and says

    1.Further and in the alternative, if the employer did notify its decision to the worker within 10 days after service of the claim on the employer by the worker (which is denied) then any deemed acceptance of liability persists for the period from the date the claim form was served on the employer and the date 14 days after the day on which the notice of its decision was given to the worker, pursuant to section 87(1) (a) of the Workers Rehabilitation and Compensation Act.

    2.Further and in the alternative  for the period of any deemed acceptance of liability the worker was in any event in receipt of sick leave payments which were in excess of her entitlements to weekly payments under the Act (if any), and accordingly any liability for weekly payments of compensation (which is denied) has been fully met.

23. The primary argument made by the employer is that the claim form was not accompanied by a current medical certificate as required by section 82(6) of the Act.[81] The employer says that the worker first served a current medical certificate on it on 8 March 2007 and that is the deemed date of delivery of the claim form to the employer.[82] The worker’s claim form was delivered to the employer under covering letter from the worker’s solicitors (Exhibit W76).[83] The covering letter refers to a medical certificate of Dr Wal Tracey dated 5 December 2006.[84] Although the letter and claim form are in evidence (Exhibit W76) the medical certificate is not.[85]

24. The employer relies upon section 82(1) (b) of the Act (WRCA) which provides that a claim form must be “accompanied by a certificate in the form approved by the Authority from a medical practitioner or other prescribed person”.[86] The employer also relies upon section 82(6) of the Act which provides that “a certificate referred to in subsection 1(b) has effect only for the prescribed period”.[87] The prescribed period is set out in Regulation 12 of the Workers Compensation and Rehabilitation Regulations:

    (2) For section 82(6) of the Act, a certificate referred to in section 82(1)(b) of the Act has effect for the following period:

    a.if it is from a medical practitioner – 14 days[88]

25. The employer submits that at the time the worker made her claim, the medical certificate was not current, and therefore had no effect.[89]

26. The employer points out that the next medical certificate was obtained from Dr Tracey on 8 March 2007. The employer submits that by that date the employer had already issued its section 85 Notice and therefore the deemed acceptance does not arise.[90]

27. The employer submitted that an expired certificate is not “a defect, omission or irregularity for the purposes of section 82(3):

    Section 82(3) provides that a “defect, omission or irregularity in a claim form or certificate shall not affect the validity of the claim and the claim shall be dealt with in accordance with this Part unless the defect, omission or irregularity relates to information that which is not within the knowledge of or otherwise ascertainable by the employer or his or her insurer.

    The medical certificate in this case is not saved by section 82(3). There was no defect, omission or irregularity in the document. It had ceased to have effect. There is a difference between a defect, omission or irregularity in a document on the one hand and a document which is legally ineffective on the other hand. A certificate which has become stale is in the latter category.[91]

28. After referring to the rationale for the insertion of Section 82(6) into the Act,[92] the employer made the following submission:

    The enactment of s 82(6) combined with the making of Regulation 12 limited the “effect” of a medical certificate to 14 days, after which a medical certificate had a “nil” effect. A certificate which has no effect is – relevantly – not a certificate for the purposes of s 82.[93]

29. In making that submission the employer relied upon the joint judgment of the Court of Appeal in Johnston v Paspaley Pearls (1996) 133 FLR 456:

    The primary obligation under s 82 when making a claim for compensation is to serve on the employer a claim in the prescribed form and, where required, an accompanying prescribed medical certificate. It is service of such a claim that triggers the obligations on the employer under s 85.

    Given that the 28 day time limit was inserted by an amendment, it would seem strange for it not to have been the intention of the legislature that that time limit should be strictly complied with, such that a failure to give the second document (in this case the medical certificate), within that time limit did not render the claim invalid.[94]

30. The employer went on to make these submissions;

    Similarly, here, subsection 6 was inserted by an amendment for a specific purpose. If an “expired” or “stale” medical certificate was “a defect, omission or irregularity”, capable of being ignored because of subsection (3), then, subsection (6) would be unnecessary and, in fact, pointless. Any certificate could be used to accompany a claim. Such a result would be at odds with the clear purpose of the amendment.

    The correct position must be either that (a) the fact of expiry of the certificate is a specific “defect, omission or irregularity”, for which the separate provision in subsection (6) has been written and thus overrides subsection (3) or (b) that the expiry of the certificate renders it to be of no effect at all. In either case the outcome is the same.

    The result is that the medical certificate dated 5 December 2006 had no effect because a period greater than the prescribed period had elapsed from the date of its issue. The obligations on the part of the employer under s 85 were thus not “triggered” in the sense explained by the Court of Appeal in Johnston v Paspaley Pearls (1996) 133 FLR 456 at 460.[95]

31. The employer made an alternative submission as to the effect of a failure to notify the worker of the employer’s decision to dispute the claim within 10 working days.

32. In response to paragraph 89 of the Amended Substituted Statement of Claim the employer submitted that there is no requirement under s 87(1)(a), read with s 87(3)(b), read with s85(8) of the Workers Rehabilitation and Compensation Act for the Notice of Decision to state (1) that the employer is deemed under s 87(1) to have accepted liability for compensation and (2) that payments of weekly benefits to the worker will continue until the expiry of 14 days after the date of notification of the employer’s decision.[96] In support of that submission the employer relied upon the decision of former Chief Magistrate Blokland in Dunkel v Northern Territory of Australia [2009] NTMC 048 at [66] and [68] where her Honour stated:

    I agree the principles of compliance underlying both s 69 and s 87 are similar in that they are derived from the need to ensure employers meet their obligations under the Act and that workers will not be prejudiced. The fact remains the two regimes differ markedly in terms of the requirements and consequences of non-compliance. There is no requirement under s87 read with s 85 to state that payments of weekly benefits would continue until the expiry of 14 days after the date of notification of the employer’s decision.[97]

33. Again with respect to paragraph 89 of the Amended Substituted Statement of Claim, the employer made the following submissions:

    Paragraph 89 raises an issue directed to the extent of liability which the employer would be deemed to have accepted under s87 which the worker says was “liability for compensation payable under Subdivisions B and D of Division 3 of the Act from 12 September 2004 to date and continuing, or alternatively from 12 September 2004 until 12 March 2007 inclusive being 14 days after the day on which the Notice of Decision was served on Ward Keller on behalf of the worker”.

    The employer submits that the employer’s “default liability” under s 87(1)(a) would be for compensation payable in the period starting 10 working days after the receipt of the claim for compensation, ie the date by which notification of a decision had to be given under s 85(1) of the Act; alternatively, compensation payable in the period starting from the date of service of the claim on the employer under s82(1)(c); in either case ending on a date 14 days after the day on which the Notice of Decision is served. That would be consistent with an assumed legislative intent to provide for interim payment of compensation consistent with the situation where the employer deferred accepting liability for the compensation under s 85(1) (b).

    There is no warrant to read into s 87(1)(a) a liability on the part of an employer for what might be 3, 5 or 10 years (depending on when the injury was sustained) of past compensation.[98]

[98] See [22] – [24] of those submissions.

[99] See [25] of those submissions.

[100] See [26] of those submissions.

[101] See [27] of those submissions.

[102] See [3] of the worker’s submissions on deemed acceptance dated 10 August 2010.

[103] See [4] of those submissions.

[104] See [5] of those submissions.

[105] See [6] of those submissions.

[106] See [7] – [9] of those submissions.

[107] See [11] –[12]  of those submissions.

[108] See [13] – [15] of those submissions.

[109] See [16] of those submissions.

[110] See [21] of those submissions.

[111] See [21] of those submissions.

[112] See [22] of those submissions.

[113] See the employer’s submissions in reply dated 11 August 2010.

[114] See [2] of those submissions.

[115] See [3.1] of those submissions.

[116] See [3.2] of those submissions.

[117] See [3.3] of those submissions.

[118] See [3.4] of those submissions.

[119] See [4] of those submissions.

[120] See [21] of the worker’s submissions in relation to deemed acceptance of the claim dated 10 August 2010 and [22] – [24] of the employer’s submissions on deemed acceptance of the claim dated 30 July 2010.

[121] See [22] – [23] of the worker’s submissions dated 10 August 2010 and [25] – [27] of the employer’s submissions dated 30 July 2010. See also [4] of the employer’s submissions in reply dated 11 August 2010.

[122] See p 1042 of the transcript.

[123] See Exhibits W2 and W3.

[124] See pp 1181 -1202 and Exhibit E167.

[125] See [50] of the worker’s submissions dated 27 January 2010 and pp 1379 -1380 of the transcript.

[126] See [8] of the employer’s  submissions dated 10 March 2010. See also p 1384 of the transcript.

[127] See [8] of those submissions.

[128] See [1] of those submissions.

[129] See [28] of those submissions.

[130] See Exhibit W 96.

[131] See [97] of the worker’s submissions dated 27 January 2010. The worker also submitted that “it is not necessary to embark on the issue of whether Mrs Barnett’s response to the various actions of NT Police was reasonable in some objective sense: see Westgate v Australian Telecommunications Commission 14 ALD 367, 371”.

[132] See Mitsubishi Motors Australia v Lupul [204] SAWCT 130. This point was also made in the worker’s counsel opening at pp 26 – 27 of the transcript: “They knew that she had this propensity and…it was reasonable for people who were managing her to know about that and to factor that into the way that they managed her. They did not do so. There’s certainly no evidence that anybody who ever dealt with her knew about that”.

[133] See Norah Price v The Corporation [A.45/1994].

[134] Section 5A (2) of the Commonwealth Act says that “reasonable administrative action” is taken to include the following:

(a)a reasonable appraisal of the employee’s employment;

(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;

(c)a reasonable suspension action in respect of the employee’s employment;

(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;

(e)anything reasonable done in connection with an action mentioned in paragraph (a),(b), (c) or (d);

(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer, or benefit or to retain a benefit, in connection with his or her employment. 

[135] See J Ballard, P Sutherland and A Anforth Annotated Safety Rehabilitation and Compensation Act 1988 The Federation Press 2003 at [4.19].

[136] See Ballard, Sutherland and Anforth,  n 135 at [4.19].

[137] These two cases are discussed in  Ballard,  Sutherland and  Anforth n 135 at [4.19].

[138] This view was adopted in Re Quarry v Comcare (1997) 47 ALD 113 and Arthur v Comcare (2004) AATA 241. In both cases it was held that counselling sessions were not part of the disciplinary process.

[139] See also Wierzbicki and Comcare (1999) AATA 123.

[140] Section 5A was inserted as a result of the 2007 amendments to the Commonwealth Act.

[141] See Wiegand v Comcare (2002) 72 ALD 795.

[142] See also Re Bartlett v Comcare (1996) 40 ALD 709 where an employee who was suspended from her duties as a result of accessing confidential data was not given a chance to respond to allegations of misconduct. It was held that the employer had acted unreasonably.

[143] See R Guthrie, M Ciccarelli and A Barbic “Work –Related Stress in Australia: The Effects of Legislative Interventions and the Cost of Treatment”, International Journal of Psychiatry 33 (2010) 101 at 105.

[144] See Guthrie, Ciccarelli and Barbic, n 143 at 105.

[145] See Guthrie, Ciccarelli and Barbic, n 143 at 105.

[146] See Ballard, Sutherland and Anforth, n 135 at [4.20].

[147] See Ballard, Sutherland and Anforth, n 135 at [4.20].

[148]For a full discussion of that case see Ballard, Sutherland and Anforth n 135 at {4.20].

[149] See Ballard, Sutherland and Anforth, n 135 at [4.20].

[150] See Ballard, Sutherland and Anforth, n 135 at [4.20].

[151] Ballard, Sutherland and Anforth, n 135 at [4.20].

[152] Ballard , Sutherland and Anforth, n 135 at [4.20].

[153] Ballard, Sutherland and Anforth, n 135 at [4.20].

[154] Ballard, Sutherland and Anforth, n 135 at [4.20].

[155] This case is discussed at length in Ballard, Sutherland and Anforth, n 135 at [4.20]. Trewin v Comcare was followed by Cooper J in Golds v Comcare (1999) FCA 1481.

[156] This extract appears in the employer’s submissions Part 1 dated 10 March 2010 at [243].

[157]See Ballard, Sutherland and Anforth, n 135 at [4.20].

[158] See Ballard, Sutherland and Anforth, n 135 at [4.20].

[159] See Ballard, Sutherland and Anforth, n 135 at [4.20].

[160] See Ballard, Sutherland and Anforth,  n 135 at [4.20].

[161] This point was made in the employer’s submissions in reply dated 15 June 2010 at [3] and [4].

[162] See, however, the definition of “harassment in the workplace” which appears on the Workplace Health and Safety Queensland Department of Justice and Attorney General – .  Workplace harassment is defined there as “repeated, unwelcome and unsolicited behaviour that an employee considers to be offensive, intimidation, humiliating or threatening and that a reasonable person would consider to be of that nature”.

[163] See paragraph 8 of the Code. It is noted that the Code does not define “bullying”.

[164] See Exhibit W65.

[165] See Exhibit W 66. 

[166] See Exhibit W 174.

[167] See Exhibit W99.

[168] See Exhibit W94.

[169] See Exhibit W94.

[170] See Exhibit W94.

[171] See Exhibit W94.

[172] See Exhibit W95.

[173] See Exhibit W95.

[174] See Exhibit W95.

[175] See Exhibit W95.

[176] See Exhibit W95.

[177] See Exhibit W95.

[178] See Exhibit W96.

[179] See Exhibit E98.

[180] See Exhibit E98.

[181] See Exhibit E98.

[182] See [8] of the worker’s submissions in response dated 1July 2010.

[183] See [7] and [8] of those submissions.

[184] See [54] of the worker’s  submissions dated 27 January 2010.

[185] See [30] and [31] of the employer’s submissions in reply dated 15 June 2010.

[186] See [32] of those submissions.

[187] See [32] of those submissions and p 58 of the transcript

[188] See [33] of the employer’s those submissions.

[189] See [16] of those submissions

[190] See [54] of the Schedule of incorrect assertions attached to the employer’s submissions dated 15 June 2010. See pp 946, 963 and 978 of the transcript of Foley’s evidence. Foley’s evidence is that she reported the worker’s leaking of confidential information to Kerr on the day of the incident. Foley said that the memorandum dated 21 June 2003 was the first time that she had written down the incident. Furthermore, Foley said that she went to Kerr because she was not happy with the response she received from command structure at the College. Foley also stated that she never lectured again after the incident because she felt that the College did not support her in viewing the worker’s conduct seriously enough.

[191] See [55] of the worker’ssubmissions dated 27 January 2010 and Exhibit W138.

[192] See [55] of those submissions and Exhibit W107.

[193] See [55] of those submissions.

[194] Paras [56] – [57] of the worker’s submissions dated 27 January 2010.

[195] The worker relied upon the evidence of Jaci Grant at  pp 1336-1338 of the transcript.

[196] See [58] and [59] of the worker’s submissions dated 27 January 2010.

[197] See [60] of those submissions.

[198] See [34] and [35] of the employer’s submissions in reply dated 15 June 2010.

[199] See [55]-[57] of the employer’s schedule of incorrect assertions, attached to the employer’s submissions in reply dated 15 June 2010.

[200] See [58]-[60] of that schedule.

[201] See p 770 of the transcript. See also [58] of the employer’s submissions Part 1 dated 10 March 2010.

[202] See [80] of those submissions.

[203] See [81] – [83] of those submissions.

[204] See [85] of those submissions.

[205] See [88] of those submissions.

[206] See [90]-[91] of those submissions.

[207] Kerr’s memorandum of 23 February 2003 (Ex E101).

[208] See [94] of the employer’s written submissions dated 10 March 2010.

[209] See [97] of those submissions and Ex W104.

[210] See [97] of those submissions.

[211] See [98] of those submissions and p 364 of the transcript.

[212] See [13] of the workers written submissions dated 1 July 2010 in response to the employer’s submissions filed on 12 March 2010.

[213] See [14] of those submissions.

[214] See [14] of those submissions.

[215] See [15] and [16] of those submissions.

[216] See[17] of those submissions.

[217] See [18] – [20] of the submissions.

[218] See [61] – [66] of the worker’s submissions dated 27 January 2010.

[219] See Exhibit W103.

[220] See Exhibit W104.

[221] See Exhibit E101.

[222] Police Administration Act s 76(a).

[223] See Exhibit W9.

[224] See [49] - [50] of the worker’s submissions Part 1 dated 10 March 2010.

[225] See [51] of those submissions.

[226] Para [89] of those submissions.

[227] See [15] of the employer’s submissions in reply dated 15 June 2010.

[228] See [35] of those submissions.

[229] See [61]-[66] of the employer’s schedule of incorrect assertions attached to those submissions

[230] See [95] of the employer’s written submissions dated 10 March 2010.

[231] See [96] of those submissions.

[232] See [58] – [79] of the employers submissions Part 1 dated 10 March 2010.

[233] See [93] of the employer’s submissions Part 1 dated 10 March 2010.

[234] See [100] of the employer’s submissions Part 1 dated 10 March 2010.

[235] See [59] and [60] of the Amended Substituted Statement of Claim and [94] of the worker’s submissions dated 27 January 2010. See also the worker’s counsel opening at pp 26-27 of the transcript.

[236] See [104] of the employer’s submissions dated 10 March 2010. See also Detective Senior Constable Cooper’s memorandum dated 16 June 2003 (Exhibit E 100).

[237] See [104] of the employer’s submissions Part I dated 10 March 2010.

[238] See [69] of the worker’s submissions dated 27 January 2010. See also  Exhibit W176.

[239] See [105] of the employer’s submissions Part 1 dated 10 March 2010.

[240] See [105] of those submissions.

[241] See [106] of those submissions. At p 942 of the transcript Sergeant Foley said that when the worker lunged across the table the worker’s eyes were wide and she was swearing.

[242] See [108] of those submissions. See also p 401 of the transcript.

[243] See [108] of those submissions.

[244] See [109] of those submissions.

[245] See [110] of those submissions and Exhibit W87.

[246] See [110] of those submissions. See also pp 402 and 404 of the transcript.

[247] See [113] of those submissions.

[248] See [114] of those submissions.

[249] See [69] of the worker’s submissions dated 27 January 2010.

[250] See Exhibit W9.

[251] See Exhibit W180.

[252] See Exhibit W 100.

[253] See [70] of the workers written submissions dated 27 January 2010.

[254] See [23] and [25] of the worker’s submissions in reply dated 1 July 2010. The worker noted the comments made by students at point 9 of the Student Evaluation on 19 June 2003 to the effect that instructors could be more receptive to the views of students without dismissing them outright, instructors appeared to be a bit confrontational if someone had a different view, and instructors need to be aware and understand that, listen to students comments/feedback and reply constructively and vice versa.

[255] See [101] of the employer’s submissions Part 1 dated 10 March 2010.

[256] See [103] of those submissions.

[257] See [111] – [112] of those submissions.

[258] See [116] of those submissions.

[259] See [117] of those submissions and Exhibit E102.

[260] See [118] of those submissions.

[261] See [119] of those submissions.

[262] See [120] of those submissions.

[263] See [120] of those submissions.

[264] See [71] – [74] of the worker’s submissions dated 27 January 2010.

[265] See Exhibit E102.

[266] See Exhibit W10.

[267] See Exhibit W11.

[268] See Exhibit W170, p 2.

[269] See Exhibit E102.

[270] See [26] – [28] of the worker’s submissions in response dated 1 July 2010.

[271] See also [41] of the worker’s submissions in response to the employer’s submissions dated 1 July 2010.

[272] See [100] of the worker’s submission dated 27 January 2010.

[273] See Exhibit W9.

[274] See Exhibit W9.

[275] See Exhibit W9.

[276] See [32] of the worker’s submissions in response dated 1 July 2010.

[277] See [121] of the employer’s submissions dated 10 March 2010.

[278] See [122] of those submissions.

[279] See [122] of those submissions.

[280] See [125] of those submissions.

[281] See [126] – [129] of those submissions.

[282] See [130] of those submissions.

[283] See [131] of those submissions.

[284] See [131] of those submissions. In fn 19 to the submissions the employer stated: “From Exh W14 it appears that he accessed the worker’s office on 13 June, but was unable to find the relevant diary or diaries. On 16 June, Owen sent Sergeant Lade to take the worker from the classroom to get the worker’s diaries which had still not been provided – T108.9. The worker had to go home to get them; they were not at Palmerston Police Station at her ordinary place of work. The worker claimed that she was first asked for her diaries on 16 June. She denied in cross examination that she had previously been asked for her diaries - contrary to Sergeant Martin’s note”.

[285] See [132] of those submissions.

[286] See [133] of those submissions.

[287] See [134] of those submissions.

[288] See [135] of those submissions.

[289] See p 438 of the transcript.

[290] See [139] of those submissions.

[291] See [140] of those submissions.

[292] See [141] of those submissions and p 1103 of the transcript.

[293] See [142] of those submissions.

[294] See [143] of those submissions.

[295] See [144] of those submissions.

[296] See [145] of those submissions.

[297] See [148] of those submissions.

[298] See [149] of those submissions.

[299] See [40] – [41] of the employer’s submissions in reply dated 15 June 2010.

[300] Although students are encouraged to discuss issues and challenge opinions there are ways and means of doing that.  In my opinion the worker went too far and acted inappropriately. 

[301] The steps taken by Commander Owen were similar to those taken by the school principal in Swanson v Northern Territory of Australia  [2007] NTCA 4, and satisfied the requirements of reasonable administrative action.

[302] See Exhibit W10.

[303] See in particular the worker’s letter to retired Commissioner Jim O’Sullivan (Exh W 87 folios 48-52) where, inter alia, the worker stated as follows:

“At the conclusion of the hearing Owen reiterated that I was on my last warning, but that he will allow me to continue on with the Detective Training Course on the condition that I provide him some evidence, within one week, that I am addressing my anger by way of receiving anger management counselling and that if I have any further concerns about being bullied then I am to see Superintendent Hofer. This behaviour caused me extreme emotional distress and concern. I do not believe that I am getting a fair go from Owen”.

[304] See [151] of the employer’s submissions Part 1 dated 10 March 2010.

[305] See [154] of those submissions.

[306] See [154] of those submissions.

[307] See [157] of those submissions.

[308] See [158] of those submissions.

[309] See [159] of those submissions.

[310] See [161] of those submissions.

[311] See [161] of those submissions.

[312] See [162] of those submissions.

[313] See [163] of those submissions.

[314] See [164] of those submissions.

[315] See [165] of those submissions.

[316] See [166] of those submissions and Exhibit W 87 folios 80-81 adopted by Owen as his document at p 1123 of the transcript.

[317] See [167] of those submissions.

[318] See [168] of those submissions

[319] See [169] of those submissions.

[320] See [170] of those submissions.

[321] See [172] of those submissions.

[322] See [172] of those submissions

[323] See [176] of those submissions.

[324] See [177] of those submissions

[325] See {178] of those submissions.

[326] See [178 ] of those submissions.

[327] See [90] – [91] of the worker’s submissions dated 27 January 2010.

[328] See pp 790, 883, 1144 and 1274 of the transcript.

[329] See pp 1244 and 1250-1252 of the transcript.

[330] See [33]-[35] of the worker’s submissions in response to the employer’s submissions dated 1 July 2010.

[331] See [46] of the employer’s submissions in response dated 15 June 2010.

[332] See [46] of those submissions.

[333] See [47] of those submissions.

[334] See [48] – [49] of those submissions.

[335] See [152] of the employer’s submissions Part 1 dated 10 March 2010.

[336] See [92] of the worker’s submissions dated 27 January 2010.

[337] See [92] of those submissions.

[338] See Exhibits W34-36, W39, W45,W47, W48, W51-61.

[339] See [93] of the worker’s submissions dated 27 January 2010.

[340] See [93] of those submissions.

[341] See [36] – [40] of the worker’s submissions in response to the employer’s submissions dated 1 July 2010.

[342] See [104] of the worker’s submissions dated 27 January 2010.

[343] See Exhibit W47.

[344] See Osmond v Public Service Board [1984] 3 NSWLR 447; See also Public Service Board of NSW v Osmond (1986) 159 CLR 656, 668 per Gibbs CJ.

[345] See Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme [2003] 216 CLR 212 at [105].

[346] See Osmond v Public Service Board (supra).

[347] See [180] of the employer’s submissions Part 1 dated 10 March 2010.

[348] See [180] of those submissions.

[349] See [180] of those submissions.

[350] See [181] of those submissions.

[351] See [182] of those submissions

[352] See [183] of those submissions.

[353] See [184] of those submissions.

[354] See [185] – [186] of those submissions.

[355] See [41] of the worker’s submissions in response to the employer’s submissions dated 1 July 2010.

[356] See Kioa v West (1985) 159 CLR 550 per Mason J.

[357] See [36] – [37] of the worker’s submissions dated 27 January 2010.

[358] See [100] of those submissions.

[359] See [41] of the worker’s submissions in response to the employer’s submissions dated 1 July 2010.

[360] See [42] of those submissions.

[361] See [42] of those submissions.

[362] See [43] – [44] of those submissions.

[363] See [45] –[46]  of those submissions.

[364] See [187] of the employer’s submissions Part 1 dated 10 March 2010.

[365] See [188] of those submissions

[366] See p 129 of the transcript and [188] of those submissions.

[367] See [188] of those submissions.

[368] See [190] of those submissions.

[369] See [191] of those submissions.

[370] See [192] of those submissions.

[371] See [193] of those submissions.

[372] See [193] of those submissions.

[373] See [193] of those submissions.

[374] See [194] of those submissions.

[375] See [194] of those submissions.

[376] See [195] of those submissions. The employer noted that the worker’s email Exhibit W33 “made no such mention and no complaint otherwise was made to McAdie: see T1299.7”. 

[377] See [196] of those submissions. The reason why Assistant Commissioner McAdie did not give a copy of the documentation to the worker was referred to by the worker in her submissions referred to above.

[378] See [197] – [198] of those submissions.

[379] See [199] of those submissions and Exhibits W36 and W87.

[380] See [201] of those submissions.

[381] See [53] – [54] of the employer’s submissions in reply dated 15 June 2010.

[382] See [75] of the worker’s submissions dated 27 January 2010.

[383] See [76] of those submissions and Exhibit E118.

[384] See [77] of those submissions.

[385] See [78] of those submissions. See also pp1080-1081 of the transcript and Exhibit E119.

[386] See [79] –[80] of those submissions.

[387] See pp 1085-1093 of the transcript.

[388] See [202] of the employer’s submissions Part 1dated 10 March 2010. The employer noted that on 18 November 2003 Dr Tracey recommended that the worker make a workers compensation claim : see Tracey’s notes, Exhibit W94, p 136.

[389] See [208] of the employer’s submissions dated Part 110 March 2010. See also Exhibit E119, p1

[390] The worker was cleared of any “wrongdoing”: see [203] of the employer’s submissions.

[391] See [216] – [217] of those submissions.

[392] See [42] – [43] of the employer’s submissions in reply dated 15 June 2010.

[393] See [219] of those submissions.

[394] See [100] of the worker’s submissions dated 27 January 2010.

[395] See [220[ of the employer’s submissions Part 1 dated 10 March 2010.

[396] See [221] of those submissions.

[397] See[221] of  those submissions.

[398] See [222] of those submissions.

[399] See [223] of those submissions.

[400] See [224] – [227] of those submissions.

[401] See [230] – [232] of those submissions.

[402] See [233] of those submissions.

[403] See [234] of those submissions.

[404] See [236] of those submissions.

[405] See [237] – [238] of those submissions.

[406] See [48] – [52] of the worker’s submissions in response to employer’s submissions dated 1 July 2010.

[407] See [53] of those submissions.

[408] See [53] of those submissions.

[409] See [81] – [84] of the worker’s submissions dated 27 January 2010.

[410] See Exhibit W12.

[411] See Exhibit W108.

[412] See Exhibit W139.

[413] See [85] – [89] of the worker’s submissions dated 27 January 2010.

[414] See [239] – [269] of the employer’s submissions Part 1 dated 10 March 2010.

[415] See [239] of those submissions. See also pp 194, 538-9 of the transcript and Exhibit E85.

[416] See [240] of those submissions.

[417] See [242] of those submissions.

[418] See [245] of those submissions.

[419] See [246] of those submissions

[420] See [247] of those submissions.

[421] See [248] of those submissions.

[422] See [249] – [263] of those submissions.

[423] See [262] - [263] of those submissions.

[424] See [264] of those submissions.

[425] See [266] of those submissions.

[426] See [267] – [268] of those submissions.

[427] See [269] of those submissions.

[428] See [44] of the employer’s submissions in reply dated 15 June 2010.

[429] See [45] of those submissions.

[430] The allegation  was that the worker sustained a further psychological injury at the hands of Acting Superintendent Heath due to his bullying and inappropriate behaviour: see also [55] of the worker’s submissions in response to the employer’s submissions dated 1 July 2010.

[431] See [101] of the worker’s submissions dated 27 January 2010.

[432] See [1] – [121] of the employer’s submissions Part 11 dated 10 March 2010.

[433] See [1] and [3] of those submissions.

[434] See [6] – [12] of those submissions.

[435] See [13] – [24] of those submissions.

[436] See [16] of those submissions.

[437] See [17] of those submissions.

[438] See [18] of those submissions.

[439] See [19] of those submissions.

[440] See [20] of those submissions.

[441] See [21] of those submissions and pp 497 and 499 of the transcript of the worker’s evidence.

[442] See [22] of those submissions.

[443] See [23] of those submissions.

[444] See [23] of those submissions.

[445] See [24] of those submissions

[446] This became Exhibit E82, the email from HR to the worker’s supervisors on 31 May 2005, attaching the return to work management plan after it had been approved by Dr Tracey.

[447] See [25] – [46] of the employer’s submissions Part 11 dated 10 March 2010.

[448] See [26] of those submissions.

[449] See [27] of those submissions.

[450] See [28] of those submissions.

[451] See [28] of those submissions.

[452] See [28] of those submissions.

[453] See [30] of those submissions.

[454] See [31] – [34] of those submissions.

[455] See [35] of those submissions.

[456] See [35] of those submissions.

[457] See [37] – [43] of those submissions.

[458] See [44] of those submissions and Exhibit W94, p56.

[459] See [45] and page 1229 of the transcript.

[460] See [46] of those submissions.

[461] See [47] of those submissions.

[462] See [48] of those submissions.

[463] See [50] of those submissions.

[464] See [51] of those submissions.

[465] See [54] – [57] of those submissions. See also Sergeant Bennett’s email to Senior Sergeant Heath and Superintendent Dowd on 17 March 2006 (Exhibit E124) referred to in [58] of the employer’s submissions.

[466] See [59] of those submissions.

[467] See [60] of those submissions.

[468] See [61] of those submissions.

[469] See [61] of those submissions.

[470] See [62] of those submissions.

[471] See [63] of those submissions. Heath gave evidence that he could not meet the full operational requirements of the unit because he needed a full time person who could devote and take their fair share of the load; and the worker was not able to do that. In relation to the suggested positions, Senior Sergeant Heath said “ …the reason I looked at that was to assist Senior Constable Barnett so she could maintain her senior constable detective status as well as complete the program and taken into consideration some of the – was going to that Roberta Barnett’s perspectives on E123. I was just trying to balance everyone if I could”. Senior Sergeant Heath was asked this question “The reality was you couldn’t accommodate somebody who could only work part time … and needed psychological support” to which he gave the answer “Not within that unit, that’s correct”.

[472] See [64] of those submissions.

[473] See [65] and [66] of those submissions.

[474] See [67] of those submissions.

[475] See [69] of those submissions. Acting Senior Sergeant Heath’s evidence was as follows: “ I asked her have you got this illness diagnosed correctly…are you on medication for it, is the mediation the right medication, is it the right dosage. I’m just looking at as the manager to try and work, look at all of the factors that could possibly be affecting Senior Constable Barnett’s mood and behavioural changes that happened rapidly in the workplace at times”. He gave the following evidence as to what prompted him to ask that series of questions: “The reason I say that, and I related this to Roberta at the time, is that my first wife suffered a mental illness and also suffered from cancer, and there were different medications the doctors put her on and I knew from my experiences on the home front that some medications don’t work… so I was talking to Senior Constable Barnett like that to try and show her that look I’m empathetic ….”

[476] See [70] of those submissions.

[477] See [71] of those submissions.

[478] See [71] of those submissions and pages 1226 and 1227 of the transcript.

[479] See [73] of those submissions.

[480] See [74] – [92] of those submissions.

[481] See [74] of those submissions.

[482] See [76] – [78] of those submissions.

[483] See [81] of those submissions.

[484] See [82] of those submissions.

[485] See [83] of those submissions.

[486] See [84] of those submissions.

[487] See [85] – [92] of those submissions

[488] See p 1229 of the transcript.

[489] See p 675 of the transcript.

[490] See [93] –[96] of those submissions.

[491] See [96] of those submissions.

[492] See [97] – [103] of those submissions.

[493] See [97] of those submissions.

[494] See [ 98] – [99] of those submissions.

[495] See [100] of those submissions.

[496] See [100] of those submissions.

[497] See [101] of those submissions.

[498] See [102] of those submissions.

[499] See [103] of those submissions.

[500] See [104] –[113] of those submissions.

[501] See [105] of those submissions.

[502] See [106]- [110] of those submissions.

[503] See [111] of those submissions.

[504] See [112] – [113] of those submissions.

[505] See {114] – [ 117] of those submissions.

[506] See [115] of those submissions and the evidence of Heath at p 1328 of the transcript.

[507] See [115] of those submissions

[508] See [115] of those submissions.

[509] See [116] of those submissions and pp 1329-1330 of the transcript.

[510] See [116] of those submissions and the transcript.

[511] See [117] of those submissions.

[512] See [118] of those submissions.

[513] See [120] – [121] of those submissions.

[514] See [56] –[ 60] of the worker’s submissions in response to the employer’s submissions dated 1 July 2010.

[515] See [61] of those submissions.

[516] See [61] of those submissions.

[517] See [62] –[65] of those submissions.

[518] See [66] of those submissions.

[519] See [66] of those submissions.

[520] See [67] of those submissions.

[521] See [68] of those submissions.

[522] See [68] of those submissions.

[523] See [68] of those submissions. Acting Superintendent Heath conceded that the worker became very distressed when she received the memorandum.

[524] See [68] of those submissions.

[525] See [72] – [77] of those submissions.

[526] See [126] of the employer’s written submissions Part 11 dated 10 March 2010.

[527] See p 29 of the transcript.

[528] See the medical reports of Dr Epstein,  Dr McLaren and Professor Whiteford.

[529] See [125] of the employer’s submissions  Part 11 dated 10 March 2010.

[530] See [99] – [110] of the worker’s submissions in response to the employer’s submissions dated 1 July 2010.

[531] See [122] – [152] of the employer’s submissions Part 11 dated 10 March 2010.

[532] See [130] of those submissions and Exhibit W96, report dated 12 May 2009, p3.

[533] See Exhibit W96, p 3. See also [129] of the employer’s submissions Part 11 dated 10 March 2010.

[534] See p 704 of the transcript and [133] of those submissions.

[535] See pp 715, 716 and 722 of the transcript and [134] – [135] of those submissions.

[536] See [136] – [137] of those submissions.

[537] See p 698 of the transcript.

[538] See pp 721 and 722 of the transcript and [139] of  the employer’s submissions Part 11 dated 10 March 2010.

[539] See [140] of those submissions.

[540] See p 70 of the transcript and [140] of those submissions.

[541] See [141] of those submissions.

[542] See [141] of those submissions.

[543] See [142] – [147] of those submissions.

[544] See [148] – [ 152] of those submissions.

[545] See [124] of those submissions.