BC v State of New South Wales
[2020] NSWWCCPD 39
•19 June 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | BC v State of New South Wales [2020] NSWWCCPD 39 |
| APPELLANT: | BC |
| RESPONDENT: | State of New South Wales |
| INSURER: | Employers Mutual Limited |
| FILE NUMBER: | A1-2690/19 |
| SENIOR ARBITRATOR: | Ms J Bamber |
| DATE OF ARBITRATOR’S DECISION: | 8 November 2019 |
| DATE OF APPEAL DECISION: | 19 June 2020 |
| SUBJECT MATTER OF DECISION: | Section 11A of the Workers Compensation Act 1987 – whether the disciplinary action taken by the employer was reasonable – Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 applied; s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 – requirement to establish error – Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4, Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68 applied; whether failure to consider or give sufficient weight to material evidence Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 applied; whether the Senior Arbitrator’s reasons were sufficient; whether inconsistency in those reasons |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Ms K Hogan, counsel | |
| Kemp & Co Lawyers | |
| Respondent: | |
| Mr C Street, counsel | |
| Turks Legal | |
| ORDERS MADE ON APPEAL: | 1. The Senior Arbitrator’s Certificate of Determination dated 8 November 2019 is confirmed. |
INTRODUCTION
BC (the appellant) was employed by the State of New South Wales (the respondent) as a registered nurse in a mental health unit in a Local Health District from February 2013.
The appellant brought proceedings in the Commission in respect of a psychological injury deemed to have occurred over the course of his employment and culminating in an incident on 21 November 2017. The respondent disputed the claim on the basis that the psychological injury was wholly or predominantly caused by reasonable action taken by the respondent in respect of discipline, transfer and performance appraisal undertaken in relation to the appellant in accordance with s 11A of the Workers Compensation Act 1987 (the 1987 Act).
The matter proceeded to arbitration. Senior Arbitrator Bamber issued a Certificate of Determination dated 8 November 2019, in which she found that the injury was wholly or predominantly caused by reasonable action on the part of the respondent in respect of discipline of the appellant.
The appellant appeals the Senior Arbitrator’s decision that the respondent’s disciplinary actions were reasonable.
BACKGROUND
In the Application to Resolve a Dispute (ARD), the appellant alleged that his injury resulted from “a history of workplace bullying, culminating in an incident on 21 November 2017.”[1] The appellant also complained in his statement evidence of harassment and vilification. The Senior Arbitrator concluded that the appellant was an unreliable witness and accepted the evidence of the respondent’s witnesses. She determined that she was not satisfied that the events relied on by the appellant relating to workplace bullying, harassment and vilification occurred and found that the appellant’s psychological injury resulted wholly or predominantly from the respondent’s actions with respect to discipline. Those findings are not challenged in this appeal.
[1] ARD, Part 4 – Injury Details.
The uncontested factual matrix involved in the assessment of the respondent’s disciplinary action was that:
(a) on the overnight shift commencing on 21 November 2017, there was an incident involving an aggressive and agitated patient who stabbed a security guard with a pencil, causing injury;
(b) the appellant was the nurse in charge of the unit at the time;
(c) the respondent’s relevant policy required completion of the “Seclusion and Restraint Register” (the Restraint Register), which the appellant did not do before completion of the shift;
(d) the respondent made several requests of the appellant to complete the Restraint Register;
(e) on 6 December 2017, the Clinical Operations Manager, emailed the appellant requesting an informal meeting with the appellant. This informal meeting did not occur;
(f) on 13 December 2017, the Clinical Operations Manager lodged a complaint with the Australian Health Practitioner Regulation Agency (AHPRA) in respect of the appellant having allegedly failed to complete the Restraint Register after being directed to do so, and
(g) on 28 December 2017, the appellant was handed two letters of that date. The first was from the Clinical Operations Manager and contained 10 allegations of inappropriate behaviour on the part of the appellant. The second was written by the Director of Operations, advising the appellant that a risk assessment had been conducted, the appellant would be placed on restricted alternate duties and that the respondent was obliged to advise the Service Check Register of the restriction in duties.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The appellant is content for the appeal to be determined ‘on the papers.’ The respondent’s position is that it is a matter for the Commission as to whether there is sufficient documentary evidence before the Commission to determine the appeal on the basis of those documents.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties in respect of whether the appeal can proceed to be determined on the basis of these documents. In the circumstances, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
The decision is not interlocutory, so that leave to appeal the decision is not required.[2]
[2] Section 352(3A) of the 1998 Act.
THE EVIDENCE
Given the uncontested findings made by the Senior Arbitrator and the only challenge to the appeal being limited to whether the respondent’s actions in respect of discipline were reasonable, it is not necessary to provide detail of the appellant’s complaints of being bullied, harassed and vilified, or the respondent’s reply to those allegations.
The appellant’s statements
The appellant provided a statement dated 13 February 2018 following an interview conducted by MJM Corporate Risk Services who were tasked with investigating the appellant’s compensation claim.[3] The appellant provided an overview of the difficulties at work in relation to the respondent introducing its own policies which were hard to adhere to, concerns about staff safety and the staff’s fear of reprisal if they raised concerns.
[3] Reply to Application to Resolve a Dispute (reply), pp 458–469.
The appellant stated that in 2016, he had consulted Ms CG, psychologist, in respect of anxiety, sleep issues, depression, and maladjustment as a result of workplace discrimination and bullying by management, in particular by the Endorsed Enrolled Nurse. The appellant reported that he did not make a workers compensation claim and after receiving treatment, he fully recovered.
The appellant described his reaction to the allegations made against him in the letters dated 28 December 2017. The appellant said that he was completely shocked by being placed on restricted duties and that there would be a record of the allegation placed in the Service Check Register. The appellant said that the incident when the security guard was stabbed was upsetting for him, but that the attack on his professional integrity by the Clinical Operations Manager was more upsetting. The appellant stated that he was not informed of the Clinical Operations Manager’s complaint to AHPRA until notification from the Nursing and Midwifery Council on 4 January 2018. He said he was “blindsided” by the allegations, which he refuted, and had to ask his partner to read them to him. He thought the Clinical Operations Manager was attempting to have him sacked and was worried about his livelihood.
The appellant complained that:
(a) documented procedures in relation to resolving workplace grievances were not followed;
(b) he had no verbal warnings of any type about his behaviour, and
(c) management had not been procedurally fair.
The appellant said that this added to his confusion, eroded his self-confidence and his usually positive attitude, and he felt unsafe and angry. The appellant referred to his issues with the Inpatient Service Manager and the Endorsed Enrolled Nurse, and said he remained distressed by the poor workplace culture and systemic workplace bullying.
The appellant provided a further statement dated 30 May 2019, with 12 annexures attached.[4] The appellant described his duties as a registered nurse in the employ of the respondent.
[4] Application to Resolve a Dispute (ARD), pp 1–59.
The appellant stated that during the course of his employment he was “persecuted, victim blamed, vilified, unfairly treated, managed unfairly” and often informed that colleagues were attempting to have him de-registered from the New South Wales Nursing and Midwifery Council (NSWNMC).[5]
[5] Appellant’s statement dated 30 May 2019, [6], ARD, p 1.
The appellant said that he had been examined at a tribunal about events that had occurred on 21 November 2017, following which he was told to “re-register” himself for nursing practice and that there would be no further action taken against him. The appellant thought that the Clinical Operations Manager was the author of the complaint to the NSWNMC. The appellant said that it had not been explained to him the reasons for being placed on a management plan, which he said was without consultation and without union representation.
The appellant stated that at the hospital where he worked, the management would develop their own policies which were not always congruent with those of NSW Health. The appellant said he did not find this conducive to achieving safe and efficient patient outcomes. The appellant said that he had kept a record of reports where members of the community had been affected by poor adherence to nursing practice and risk management principles, which he annexed to his statement as annexure “A”. The appellant gave the example that despite “overwhelming” risk assessments undertaken by him and other staff, management (who he believed to be the Clinical Operations Manager and the Chief Psychiatrist) would not transfer a violent and mentally unstable scheduled patient to a bed that had access to a restraint room.
The appellant referred to the incident on 21 November 2017 when a security guard was stabbed in the chest with a pencil. The appellant said that immediately following the incident, the Chief Psychiatrist transferred the patient to a mental health intensive care unit. The appellant said that he spoke to the acting Director of Nursing about client safety and the high level of risk to responders, which could have been prevented.
The appellant described the incident on the night shift on 21 November 2017, in which he was in charge of both the acute and sub-acute mental health units which he said were clearly understaffed, consistent with common practice. The appellant said that during this shift, there was a patient with a drug induced psychosis who needed to be restrained and sedated. The appellant said there were three security guards present who restrained the patient while he was given an intramuscular injection. The appellant said that during this process, the patient stabbed a security guard in the chest with a pencil. The appellant referred to CCTV footage monitoring the ward, which was not made available for review although he had seen the Clinical Operations Manager and her managers openly viewing the footage at the nurses’ station. He referred to the monitor at the nurses’ station, which was faulty. The appellant annexed a copy of the ward journal in which staff had requested the monitors in the nursing station to be fixed (annexure “I”). He said he was not informed that one of the security guards had been injured and admitted to hospital until 3 am on the morning of 22 November 2017.
The appellant considered that:
(a) the managers and the Chief Psychiatrist had not done enough to ensure the safety of his colleagues;
(b) there was little time to debrief after the incident;
(c) there was no time to reconcile the events, and
(d) the case was manipulated by management to such an extent that he felt broken with a severe mood disturbance, poor sleep and suffered significant weight loss.
The appellant stated that at the time of the altercation he was attending to another patient and there was also a patient who was manic and agitated. The appellant said that, for the safety of the ward, he had not taken a proper break.
The appellant reported that at 5 am on 22 November 2017, he checked the Endorsed Enrolled Nurse’s documentation of the restraint, which he said made no sense. He said he completed the Incident Information Management System (IIMS) report, providing a clear statement of the event, but was later told that he had not completed a risk assessment. The appellant was certain that he would not make such an error after such an aggressive incident. He added that it was impossible to complete his rounds within the required time frames during that shift.
The appellant said that from 23 November 2017, he was asked to complete the “Seclusion and Restraint Register”, which he had insufficient time to complete because of incidents occurring during the night shifts. He said he was also cognisant that he was advised verbally and by email that it did not have to completed by the person in charge and because he did not witness the incident, he needed to consult with other colleagues. Emails dated 13 December 2017 and 16 October 2018 were annexed to his statement as annexures “J’” and “K” respectively.
The appellant advised that he consulted his general practitioner, Dr RD on 25 November 2017 and was diagnosed with an adjustment disorder. The appellant noted he had also seen Associate Professor Michael Robertson, psychiatrist, who diagnosed him as suffering from major depression, and he was continuing to see Dr Selwyn Smith psychiatrist, who continued to treat him.
The appellant stated that on 13 December 2017, he was transferred to alternate duties pending investigation into his refusal to complete the Restraint Register. The appellant said that he had informed the Nurse Unit Manager (the NUM), that he could not complete the form because he did not witness the incident.
The appellant was of the view that the management team had “colluded and premeditated a plan to sabotage and destroy” his nursing career.[6] He maintained that they had not included him in any of their deliberations except to advise him that they found him at fault. He described the investigation as biased and prejudiced against him.
[6] Appellant’s statement, ARD, p 7, [43].
The appellant stated that the outcome of the investigation was that he had:
(a) failed to complete the seclusion and Restraint Register;
(b) failed to provide details of the incident;
(c) failed to complete the “In Charge of Shift” checklist, and
(d) according to the CCTV footage, failed to complete observations.
The appellant said that it was recommended that he be placed on a more supervised roster with increased educational support. The appellant stated that on 22 December 2017, he contacted his unit manager and advised that he felt he was being unfairly treated. The appellant said that the investigation did not take into account the full facts. He alleged that the Endorsed Enrolled Nurse lied about her allocation of clients on the night in question and said she was in another ward. The appellant disputed that to be true because he was the nurse in charge on that night and was aware that the Endorsed Enrolled Nurse had the care of the aggressor because he had personally allocated her to that role.
The appellant stated that on 8 January 2018, he attended Dr RD, who certified him as unfit for work and that he has remained unfit since then. The appellant described the ongoing difficulties he was experiencing as a result of his condition and his financial situation.
The annexures to the appellant’s statement
Annexure “A” to the appellant’s statement contained a number of documents which were untitled and unsigned. Those documents consisted of:
(a) a typed document with a hand-written date of 21 November 2017, describing an oppositional, combative and verbally intimidating patient with observed escalating behaviour. Security was called and the aggressive patient stabbed a security guard with a pencil. The patient was secured but continued to be aggressive until he was sedated by injection. The security staff were reported to be concerned about safety when patients had access to weapons. A hand-written note at the bottom referred to “IIMS” with a number following;[7]
(b) the remaining five documents included in annexure “A” detailed numerous incidents involving difficult and aggressive patients. Again, the documents were unsigned and some bore hand-written notations, the authors of which were not identified. Two of the documents were dated 3 December 2017 and 9 December 2017 respectively, but the balance were undated.[8]
[7] ARD, p 9.
[8] ARD, pp 10–16.
Annexure “B” consisted of:
(a) a typed, undated and unsigned one page document said to be concerns held by the local Mental Health Branch of the New South Wales Nursing and Midwives’ Association (NSWNMA) in relation to staffing levels, lack of staff training, staff workloads and safety. The document did not bear a letterhead and appeared to relate to matters occurring in April 2014.[9]
(b) An email from the appellant to the NSWNMA dated 2 January 2018 requesting assistance. The appellant referred to being handed two sealed letters by the NUM, which he was told to read at home. The appellant advised that there were 10 allegations about him of which five were false, and the other five had “justifiable and mitigating circumstances.”[10]
[9] ARD, p 18.
[10] ARD, pp 22–23.
Annexure “H” comprised a letter dated 11 January 2018 from the General Secretary of the NSWNMA (the General Secretary), addressed to the Executive Officer of the Nursing and Midwife Council, NSW.[11] The General Secretary provided a detailed account of the events on 21 and 22 November 2017 and of the appellant’s busy work schedule on that shift. The General Secretary explained that the appellant completed his shift at 7.30 am on 22 November 2017, but that because of the nature of the incidents on that shift, the appellant had insufficient time to complete the Seclusion and Restraint Register. The General Secretary advised that the appellant was then not rostered on again until the night duty shift on 26 and 27 November 2017. The General Secretary reported that the appellant was approached by the NUM on 27 November and the Acting Nurse Unit Manager on 28 November 2017, who both requested the appellant complete the Seclusion and Restraint Register. The General Secretary advised that the appellant told the Acting Nurse Unit Manager that he had not witnessed the entire event, but that he would complete the Restraint Register in collaboration with the nurses who were present. The General Secretary said that at about 8 am, the appellant visited the NUM and told the NUM what he had observed in relation to the restraint and the NUM recorded that information directly onto his computer. The General Secretary said the appellant then advised the NUM that he would follow up with the other nurses who were present during the restraint to ensure their observations were recorded in the form.
[11] ARD, pp 34–40.
The General Secretary recorded that on 21 December 2017, the NUM contacted the appellant and advised him that restrictions would be placed on the appellant’s practice, in that he would be working only from Monday to Friday with no overtime and would not be in charge of the shift until the outcome of the investigation. The reason provided by the NUM was that the appellant had not completed the risk assessment in relation to the incident on the shift on 21 to 22 November 2017. The General Secretary advised that the appellant was called into the NUM’s office on 28 November 2017 and handed two letters, one from the Clinical Operations Manager and the other from the Director of Operations, which the appellant was to take home and read.
The General Secretary said that the two letters contained the allegations made against the appellant. The General Secretary indicated that the appellant accepted that he should have completed the Seclusion and Restraint Register and the Review of Restraint Form prior to completing his shift on 22 November 2017 and that it was the appellant’s understanding that 50% of those forms were completed. The General Secretary also indicated that the appellant accepted that he may not have completed the patient rounds during the shift on 21/22 November 2017 but had made a clinical judgment in relation to both staff and patients, while still maintaining safety of both as a priority. The General Secretary pointed out that prior to the incident, the appellant had submitted numerous forms in which he raised concerns about safety risks and care of staff and patients, monitors, preventable staff injuries, non-compliance with management, safety and risk management policies, faulty CCTV and unresolved workplace hazards. The General Secretary said that there had been no follow-up, feedback, consultation, resolution or support offered, which appeared to be a breach of NSW Health Incident Management Policy and of work health and safety legislation.
Annexure “J” consisted of an email dated 13 December 2017 from the Clinical Nurse Consultant directed to various staff, including the appellant, advising that there were a number of outstanding in-charge restraint and seclusion reviews. The email advised that the task did not have to be exclusively completed by the “in charge” nurse.[12]
[12] ARD, p 42.
Annexure “K” contained the appellant’s response dated 16 October 2018 to the allegations.[13] The appellant indicated that the first four allegations had been the subject of a complaint made by the Clinical Operations Manager on 13 December 2017, which had been referred to the Nursing and Midwife Council, NSW following which he underwent a performance interview. The appellant said that the outcome in respect of all four allegations was that no further action be taken and the matter was to be closed. In relation to the balance of the allegations, the appellant responded that:
(a) on 22 November 2017 and on 28 November 2017, he had informed the Acting Nurse Unit Manager about the incident during the shift but that had not witnessed the entire event. He said that on 28 November 2017 he understood that he had completed 50% of the Restraint Register with the NUM (allegation 5);
(b) when he left the NUM’s office on 28 November 2017, he was satisfied that he had provided all required information and the form was completed (allegation 6);
(c) in the context of having provided a medical certificate on 25 November 2017 in relation to issues with sleeping and insomnia, he had been called in and completed a night shift, which finished late because he needed to do a hand over to a nurse that had not arrived (allegation 7);
(d) on 9 December 2017, he contacted the Psychiatric Registrar in order to have treatment provided to an agitated patient who had been scheduled. The appellant said that he and other staff were extremely disappointed that there was an extended delay before the Psychiatric Registrar provided the treatment, which left staff feeling unsupported (allegations 8, 9 and 10);
(e) in relation to allegation 9 and 10, the appellant said that the allegations were unsubstantiated, and he agreed with the proposed outcome, and
(f) in relation to allegation 10, the Psychiatric Registrar had attended, but there were still patients to see so, as the appellant had finished his shift, the appellant handed over to another nurse to sign off the Psychiatric Registrar.
[13] ARD, pp 43–49.
The remaining annexures to the appellant’s statement do not assist in determining the issues on appeal.
The respondent’s statement evidence
A number of personnel employed by the respondent provided statements for the purpose of the factual investigation. The relevant evidence is summarised below.
The Clinical Operations Manager
The Clinical Operations Manager provided a statement dated 28 February 2018, which appears to have been completed on 6 March 2018.[14] She described the appellant as an adequate performer who appeared to her to have a “brittle” personality. The Clinical Operations Manager said that the appellant did not take feedback positively and could become defensive and sometimes angry. She said some staff had reported that he had been rude, unreasonable and unprofessional towards them, but she had been unable to investigate those complaints because of the appellant’s significant sick leave absences from work. The Clinical Operations Manager gave the example that on 29 November 2017, the appellant rang her about a patient and spoke to her rudely on speakerphone while staff were listening. The Clinical Operations Manager said that she suggested the appellant have a meeting with her and the appellant advised he would bring a union representative and hung up the telephone.
[14] Reply, pp 471–484.
The Clinical Operations Manager considered that the appellant’s condition stemmed from the receipt of her letter of allegations dated 28 December 2017. The Clinical Operations Manager said that she had consulted the Human Resources Unit and the Professional Practice Unit before sending the letter and it conformed with the respondent’s policy on managing misconduct.
The Clinical Operations Manager responded to the various grievances about the conditions in the workplace raised by the appellant. Relevantly, the Clinical Operations Manager responded to the appellant’s allegation that the letters dated 28 December 2017 came as a complete shock to him. The Clinical Operations Manager stated that the nature and seriousness of the allegations made against him were such that a verbal warning was not sufficient. The Clinical Operations Manager said that prior to receiving the letters, the appellant was emailed on 27 and 28 November 2017 and telephoned on 28 November 2017 by the NUM. The Clinical Operations Manager stated that the NUM discussed the appellant’s failure to complete the Restraint Register in relation to the incident on 21 November 2017, and that the appellant would have been well aware of the seriousness of that failure. The Clinical Operations Manager added that the appellant was advised by the NUM on 22 December 2017 that there would be restrictions placed on his practice because of the allegations.
The Clinical Operations Manager further responded to the appellant’s allegation that:
(a) the appellant felt that the allegations were an attack on him and were an attempt by the Clinical Operations Manager to have him sacked. The Clinical Operations Manager advised that the allegations against the appellant were serious and her purpose was not to “sack” the appellant. She indicated that she wanted the appellant to return to work as a fully functional member of the team when he was able. The Clinical Operations Manager said that the respondent had a robust support system for staff who were in those circumstances but that she was obliged to follow due process in order to ensure the safety of patients and staff.
(b) in making the allegations, the Clinical Operations Manager did not follow documented procedures. The Clinical Operations Manager provided a copy of the “Managing Misconduct in the Workplace” policy and said that at all times she followed that procedure and took advice from Human Resources. The Clinical Operations Manager was surprised that the appellant said he had no-one to talk to about his circumstances when he had in fact discussed them with other staff members in breach of the requirement to keep the allegations confidential. The Clinical Operations Manager added that she had emailed the appellant on 6 December 2017 and 14 December 2017 with an offer of an informal meeting in relation to a prior telephone conversation she had with him which led her to be concerned about his clinical judgment. The Clinical Operations Manager said the appellant refused and later indicated that he would only attend with the union representative.
The NUM
The NUM provided a statement dated 29 March 2018.[15] He confirmed that the appellant reported to him when they were working together, and that he reported to the Inpatient Service Manager. The NUM said there were no communication issues between the appellant and him and he and the appellant got along well at work. The NUM discussed the role of the nursing staff. The NUM said that there was a NUM Level 1 who worked on the unit floor who was more directly involved with the appellant. The NUM said he would work in his office and usually interact with the appellant if there was an issue, question or complaint. The NUM observed that Level 1 NUM’s (the Acting Nurse Unit Manager and a different Nurse Unit Manager) would have plenty of interactions with the appellant during the day shift and at night there would be an allocated nurse in charge, who would be the most experienced nurse on the shift.
[15] Reply, pp 495–502.
The NUM stated that he did not regard the appellant as a leader and would avoid putting him in leadership situations if possible, but he had no significant performance issues with the appellant. The NUM said that he arranged for the appellant to work on day shifts at the appellant’s request in December 2017.
The NUM referred to a file note made by the Acting Nurse Unit Manager on 11 March 2018 indicating that on 4 January 2018, she saw the appellant taking photos of the CCTV monitors and told her that he was “gathering evidence.” The NUM said he was also aware that the appellant was discussing bullying by management and the allegations with other staff members, when he had reminded the appellant of the need for confidentiality.
The NUM referred to an email on or about 27 December 2017 that he received from the appellant listing a number of concerns about patient care, staff safety and breaches of policy the appellant had previously notified to the Clinical Operations Manager. The NUM said that the Clinical Operations Manager had responded to the appellant in a timely manner and advised the appellant to discuss those matters with his line manager. The NUM, who was one of the appellant’s line managers, was not aware of the appellant having taken up that suggestion.
The NUM added that he had recently become aware that the appellant had accessed recent IIMS reports in circumstances where he was not working in the unit which was a breach of confidentiality. The NUM said that this was being investigated.
The respondent’s documentary evidence
The respondent relied upon a series of emails passing between the appellant, the NUM, and the Clinical Operations Manager.
On 27 November 2017, the NUM emailed the appellant and commented that the events on the shift on 21/22 November 2017 sounded “pretty hectic,” and offered the appellant a “debrief” about the event. The NUM requested the appellant to fill out the Restraint Register that evening, which was a requirement, and to complete the Seclusion and Restraint in-charge questionnaire.[16]
[16] Reply, p 201.
On 28 November 2017 at 4.57 pm, the NUM again requested the appellant to provide the information required by 1 December 2017 and commented that there was no documentation in the Restraint Register about the incident.[17]
[17] Reply, p 309.
On 6 December 2017, the Clinical Operations Manager emailed the appellant. The Clinical Operations Manager advised that she was seeking an informal meeting with the appellant in relation to events that took place on 22 November 2017. The Clinical Operations Manager referred to a telephone conversation she had had with the appellant and feedback she had received from clinical and managerial staff about interactions with the appellant on that day. The Clinical Operations Manager expressed concerns about the appellant’s behaviour and clinical decision making during that shift and advised that she was seeking the appellant’s understanding and insight into those matters.[18]
[18] Reply, p 246.
On 11 December 2017 at 12.02 am, the appellant responded to the Clinical Operations Manager. The appellant referred to an earlier informal meeting conducted in 2016 and complained of numerous more recent incidents alleged to have occurred in the course of his duties, including issues with other staff and clinical management issues in relation to some patients. The appellant concluded the email by advising that he considered the informal meeting suggested by the Clinical Operations Manager which was to take place while he was attending a training program was unfair and unnecessary. The appellant requested a meeting between the Clinical Operations Manager, the Inpatient Service Manager, a union representative and his support person, as well as a representative from Human Resources or Workforce to ensure the meeting was conducted in accordance with policy and core values.[19] The email “trail” included an email in the same terms as the email from the Clinical Operations Manager dated 6 December 2017, but referred to the events of 28 November 2017, rather than incidents occurring on 22 November 2017.[20]
[19] Reply, pp 314–317.
[20] Reply, pp 317–318.
The appellant sent a further email to the Clinical Operations Manager dated 11 December 2017 at 8.29 pm. The appellant referred to the Clinical Operations Manager’s request for an informal meeting to discuss “an IIMS event that occurred on 28 November 2017.” The appellant referred to a “myriad of issues that remained unresolved.” The appellant proposed a time for an informal meeting suitable to him and the union representative.[21]
[21] Reply, p 320.
The respondent also relied on the email dated 13 December 2017 from the Clinical Nurse Consultant, which was annexure “J” to the appellant’s statement. That email was directed to a number of staff, including the appellant and the Registered Nurse, and referred to “outstanding in charge review of seclusion and restraint.” The email referred to the patient who had stabbed the security guard, for which both the Registered Nurse and the appellant were responsible to provide a review but did not specify what event the requirement related to.[22]
[22] Reply, p 321.
The NUM wrote a letter to the appellant dated 12 December 2017. The letter was in the following terms:
“I am writing to you in relation to an alleged incident that occurred on the shift of 21 November 2017 where you were In Charge of the Mental Health Acute Unit. During this shift you did not comply with NSW Ministry of Health Code of Conduct NSW Policy PD2015-049 and you also breached the Aggression, seclusion and restraint: Preventing, minimising, and managing disturbed behaviour in Mental Health Facilities in NSW Policy.
On the morning of 23 November 2017, you were directed to complete the seclusion and restraint register by the Acting Nursing Unit Manager. On the [sic] 27 November 2017 further requests to complete the restraint register were made by me, and emailed to you as the In Charge of Shift on 21 November 2017. A follow up phone call was made to you on the morning of the 28 November 2017 as you had not complied with reasonable directives. During this phone conversation you stated that you would not complete this requirement.
Due to the nature of the alleged incident and your behaviour, a risk assessment has been completed, and it has been determined that it is inappropriate for you to continue with your usual duties during the investigation.
Pending the outcome of the investigation, you are placed on alternate duties. You will be required to work Monday to Friday morning shifts when rostered. During this period you will not be allocated as In Charge of the Mental Health Unit, and you will not be able to do overtime shifts within the Inpatient facilities.
Please be advised that this action to restrict your duties also obliges SESLHD to record your name and the action taken on the Service Check Register in accordance with NSW Health Policy Directive PD2013_036 Service Check Register for NSW Health Services. You should be aware that resigning your employment will not necessarily result in your Service Check Register record being removed.
Access to the Service Check Register is restricted to authorised NSW Health staff only. Should you apply for a position elsewhere in the NSW Health Service or the Ministry of Health, and be selected as a preferred applicant, your name will be checked against the Register and SESLHD will be required to provide information about this matter to assist in the recruitment processes. Further information about this process is contained in the Policy Directive.
You are entitled to a copy of your record on the Service Check Register. If you would like a copy, please contact [the] Manager HR Advisory Services … If a further risk assessment is conducted, or if at the conclusion of the investigation the restrictions are removed, the Service Check Register record will be removed.
The alleged behaviour if sustained is unacceptable. The outcome of the investigation may result in disciplinary action being taken against you, and possibly resulting in the termination of your employment.
A fact finding meeting will be scheduled as soon as possible as part of the investigation to allow you to respond to the allegations. You will receive a letter of invitation shortly.
I would like to remind you that it is essential that confidentiality be maintained during this process. Accordingly you are not to approach any staff in your work area to discuss the issues raised during the course of the investigation.
You are reminded of the availability of confidential counselling through the Employee Assistance Program, available on ...”.[23]
[23] Reply, pp 211–212.
Apparently, that letter was not sent to the appellant until it was emailed to him on 21 December 2017.
The respondent relied on the letter of allegations directed to the appellant dated 28 December 2017 and written by the Clinical Operations Manager. The letter advised:
“I am writing in relation to a number of incidences and allegations concerning your inappropriate behaviour which have occurred recently.
The allegations are as follows:
Allegation 1
On 21 November 2017 a patient was restrained during the night shift. As the Nurse In-charge of Shift (‘In-charge’) it was your responsibility to ensure the Seclusion and Restraint Register was completed. It is alleged that you failed to do so contravening the Aggression, Seclusion and Restraint: Preventing, Minimising and Managing Disturbed Behaviour in Mental Health Facilities in NSW PD2012/035, section 5.3.
Allegation 2
It is alleged that on two separate shifts:
• 20–21 November 2017, between 2322hrs and 0510hrs; and
• 21–22 November 2017, between 2322hrs and 0510hrs
you did not carry out your duties as In-charge appropriately, as care level observations for a patient on Care Level 1 and a patient on Care Level 2 were not conducted as per the policy directive. You signed the Nursing Care Level Observation Chart (‘the Chart’) indicating you had completed nursing observations as per the Chart. After a review of CCTV footage, recorded on the above dates and during the above time periods, it is alleged that you did not complete 41 of these observations of which you have signed for.
Allegation 3
On 23 November 2017, at the end of your shift, the Acting Nursing Unit Manager (‘A/NUM’) spoke with you while you were in the treatment room of the Mental Health Inpatient Unit. During this conversation, the A/NUM requested that you ensure the Seclusion and Restraint Register was completed. It is alleged that you did not follow this directive.
Allegation 4
On 27 November 2017 the Nursing Unit Manager 3 (‘NUM3’) [the NUM] requested, via email, that you complete the Seclusion and Restraint Register and that you also complete the In-charge Review of Seclusion or Restraint form, for the patient restraint that occurred during the night shift on 21 November 2017. It is alleged that you did not respond to this directive.
Allegation 5
On 28 November 2017, during your night shift, the NUM3 contacted you via telephone to discuss the email he had sent to you on 27 November 2017. This email directed you to complete the Seclusion and Restraint Register and also to complete the In-charge Review of Seclusion or Restraint form for the patient restraint that occurred during the night shift on 21 November 2017. It is alleged that you did not follow this directive.
Allegation 6
On 28 November 2017 you chose to wait at work, to speak with the NUM3 after your shift had finished. During this conversation the NUM3 reiterated that under the Aggression, Seclusion and Restraint: Preventing, Minimising and Managing Disturbed Behaviour in Mental Health Facilities in NSW PD2012/035 you were required to complete the Seclusion and Restraint Register and the ln-charge Review of Seclusion or Restraint form. You were again directed to complete this by the NUM3. It is alleged that you failed to follow this directive.
Allegation 7
On 28 November 2017 you did not contact the In-charge to advise you would be late for your shift. It is alleged that you were approximately one hour late for your shift.
Allegation 8
On the morning of 9 December 2017, whilst on the phone to the On Call Registrar, [the Psychiatric Registrar], you shouted at her saying that ‘You are being negligent [the Psychiatric Registrar]’ and ‘I am going to escalate this matter as you are avoiding your duty of care.’
Allegation 9
At approximately 11.30am on 9 December 2017, when [the Psychiatric Registrar] asked you who was looking after a patient, you inappropriately responded with ‘look yourself at the board and find out which nurse is looking after the patients.’
Allegation 10
At approximately 3.30pm on the 9 December 2017, [the Psychiatric Registrar] asked you to sign her out. You refused to do so and asked another Nurse to do it.
Due to the nature of the concerns and alleged behaviour, an investigation into the matter is being conducted. If it is found that the behaviour has occurred, this behaviour is unacceptable and the outcome of the investigation may result in disciplinary action being taken against you. If the allegations are substantiated, this would breach the Aggression, Seclusion and Restraint: Preventing, Minimising and Managing Disturbed Behaviour in Mental Health Facilities in NSW PD2012/035 Section 5.3 and the NSW Health Code of Conduct and CORE Values.
A fact finding meeting to obtain the facts about the matter has been scheduled on 9th January 2018 at 1300hrs in the Executive Offices Community Mental Health, [at] The … Hospital. [The] A/Principal HR Advisor will also be in attendance. You may bring a support person to this meeting as a witness. If you require the services of an interpreter, please advise me so that this can be arranged.
You are also encouraged to respond to the matter in writing. If you choose to do so, please provide a written response to me ... by close of business within 14 days of the date of this letter. Alternatively, you may submit your written response at the meeting.
This investigation will be conducted in a confidential manner, and you are required to treat the matter as confidential throughout the investigation. You are not to discuss the matter with anyone other than myself, [the A/Principal HR Advisor] or your support person. Your support person is also bound by the confidentiality of this process. Any breaches of confidentiality of this matter may result in disciplinary action.
The interview will be recorded by audio recording. Consent for audio recording the interview will be obtained from you prior to the commencement of the interview. You will have an opportunity to review and comment on the minutes/transcript of the interview.
You are reminded of the availability of confidential counselling through the Employee Assistance Program … You may also contact [the A/Principal HR Advisor] in HR Advisory Services … if you have any questions about the process.”[24]
[24] Reply, pp 227–229.
The respondent also relied on the letter from the Director of Operations dated 28 December 2017, in which the Director of Operations advised the appellant that, as a consequence of his alleged behaviour, a risk assessment was conducted and that it was inappropriate for the appellant to perform his usual duties while the investigation was in progress. The appellant was advised of the restrictions on his duties and was also advised that his name would be placed on the Service Check Register. The appellant was warned that the outcome of the investigation may result in disciplinary action and possible termination of his employment. The appellant was provided with the telephone number of the Employee Assistance Program.[25]
The medical evidence
[25] Reply, pp 230–231.
The treatment providers
The clinical notes of the local family medical practice are in evidence.[26] The appellant consulted Dr HD and Dr RD, general practitioners, and Ms CG, psychologist, from that practice.
[26] ARD, pp 121–132.
On 10 March 2016, the appellant complained to Ms CG that he was experiencing family issues. Ms CG recorded that the appellant was being bullied by a lady and a manager at work. The appellant complained that management had taken no steps to prevent this happening.
On 19 May 2016, the appellant again attended Ms CG in respect of unspecified issues with work and family issues. The next recorded entry was on 23 February 2018, when the appellant reported improvement in sleep issues while on medication, and that he felt “overwhelmed when retelling [his] story.”[27] On 16 March 2018, the appellant complained of high levels of anxiety and fear of being accused of more issues if he went to work.
[27] ARD, p 123.
The appellant consulted Dr HD on 25 November 2017, reporting that he had been working alternate day and night shifts and was experiencing insomnia, for which he was taking medication.
The appellant consulted Dr RD between 8 January 2018 and 27 August 2018.
Relevantly, on 8 January 2018, the appellant reported that since 21 November 2017 he had been bullied at work. Dr RD provided a medical certificate. On 8 and 27 January 2018, Dr RD recorded that the appellant continued to feel unwell but did not want to proceed with a workers compensation claim.
On 29 January 2018, the appellant complained of bullying at work by the operations manager and the clinical nurse consultant since 21 November 2017. Dr RD issued a WorkCover certificate of capacity. Consultations thereafter confirm that the appellant continued to suffer psychological symptoms but add nothing further in relation to the issues for determination.
On 27 August 2018, Dr RD wrote a referral for the appellant to see Dr MY, psychiatrist.[28] The history provided to Dr MY was that the appellant had allegedly been bullied at work on 21 November 2017 by the clinical operations manager and the clinical nurse consultant.
[28] ARD, p 136.
Dr RD also referred the appellant to Dr Selwyn Smith, psychiatrist. The appellant attended Dr Smith on 31 August 2018. Dr Smith reported back to Dr RD on 3 September 2018.[29] The history recorded by Dr Smith was that at the beginning of 2018 [sic 2017], the appellant had witnessed a nurse being stabbed by a patient. Shortly thereafter, and in the context of complaints he had made in respect of safety issues, the appellant was placed on a plan, which significantly impacted the appellant’s psychological well-being. Dr Smith noted the appellant’s symptoms and diagnosed the appellant as suffering from an adjustment disorder with depressed and anxious mood stemming from occupational issues.
[29] ARD, pp 137–138.
The forensic medical reports
The appellant’s legal representatives qualified Associate Professor Michael Robertson, psychiatrist, to examine the appellant and provide an opinion. A/Prof Robertson had the benefit of the clinical notes from the local family medical practice, the notice issued by the respondent declining liability for the appellant’s compensation claim and correspondence from the appellant directed to the respondent dated 4 October 2018 and 16 October 2018. A/Prof Robertson provided a report dated 19 November 2018.[30]
[30] ARD, pp 108–115.
A/Prof Robertson described the appellant’s workplace issues as “convoluted” but with two main themes. A/Prof Robertson said that the first issue was that the appellant had been vilified. A/Prof Robertson said that this was on the background of the appellant’s expressed concerns in relation to workplace safety. A/Prof Robertson referred to the incident in November 2017 involving the agitated patient who required restraint by security guards and sedation, which A/Prof Robertson said was the second issue. A/Prof Robertson reported that leading up to this event, the appellant had been treated hostilely by the Endorsed Enrolled Nurse, who was the patient’s primary nurse on the night in question. A/Prof Robertson recorded that the appellant described the Endorsed Enrolled Nurse as having “gone to water” and was incapable of dealing with the emergency. A/Prof Robertson noted that during this episode, a security guard was stabbed by the patient with a pen. A/Prof Robertson further noted that the appellant complained that after this event, the appellant was criticised and accused of misconduct for not completing the paperwork, despite being complimented for the manner in which he acted. A/Prof Robertson said that the appellant attributed the responsibility for the accusation to the Endorsed Enrolled Nurse.
A/Prof Robertson described the ensuing events and disciplinary procedure, as reported by the appellant. A/Prof Robertson reported that the appellant’s family history was dysfunctional. A/Prof Robertson diagnosed the appellant as suffering from an adjustment disorder with anxiety and depression but considered that the appellant’s condition was deteriorating into a major depressive disorder. A/Prof Robertson said that on the appellant’s version of events, he had been the subject of an attempt at constructive dismissal. A/Prof Robertson referred to the respondent’s defence that the psychological condition was caused by reasonable action on its behalf and said that a psychiatrist could not determine which version of events should be preferred. A/Prof Robertson opined that as a result of the appellant’s perceived vilification by his colleagues, the appellant experienced a “significant psychological affront or narcissistic injury.” A/Prof Robertson considered that the appellant undoubtedly suffered from pre-existing vulnerabilities, but there was no relevant established psychological condition contributing to the appellant’s whole person impairment (WPI). In a separate document, A/Prof Robertson assessed the appellant’s WPI as 22%.[31]
[31] ARD, p 116.
A/Prof Robertson provided a supplementary report dated 20 December 2018 at the request of the appellant’s legal representatives, in which he clarified his earlier opinion.[32] A/Prof Robertson described the onset of the appellant’s psychological condition as a gradual evolution in the context of bullying incidents in August 2015 and in early 2016 when the appellant was yelled at over the telephone, as well as a series of problematic interactions during that time. He considered that those incidents were likely to have produced non-psychopathological distress and the adjustment disorder emerged following the incident on 21 November 2017, which the appellant described as a culmination of harassment and vilification by his employer. A/Prof Robertson concluded that the appellant experienced psychological distress at what appeared to be exposure to homophobia and what the appellant believed to be vexatious and persecutory treatment throughout his work with the respondent. A/Prof Robertson further concluded that the psychological symptoms became more prominent following the incident on 21/22 November 2017.
[32] ARD, pp 117–120.
The respondent qualified Dr Graham George, psychiatrist, to provide a medico-legal opinion on its behalf. Dr George examined the appellant on 20 February 2018 and provided a report of the same date.[33] Dr George took the history that the appellant went off work in the second week of January 2018 and that the appellant attributed the cause of going off work to the incident on 21 January 2017. The appellant reported that on the evening in question, he had a number of patients in his care, including another aggressive patient. The appellant told Dr George that he did fill out the risk assessment form after the event occurred but could only complete 50% of it because he was not present the entire time. Dr George said the appellant told him he had received a communication indicating that there would be conditions placed on his nursing duties because he had failed to fill in the risk assessment form. Dr George said the appellant received a further letter on 28 December 2018, informing him again that there would be restrictions placed on his practice and 10 allegations were made against him. From that time the appellant felt distressed. The appellant told Dr George that from then, he was only permitted to work morning shifts and ceased work on 8 January 2018. Dr George said that towards the end of the interview, the appellant reported that he believed he had been subjected to bullying by the Clinical Operations Manager and that since 2015, he was subjected to bullying and discrimination by the Inpatient Service Manager, about whom he made a complaint in 2016.
[33] Reply, pp 433–440.
Dr George diagnosed an adjustment disorder with depressed mood.
Dr George noted that the appellant was the subject of a number of allegations regarding his performance on the evening of 21 November 2017, his failure to complete the risk assessment form and his lack of care in respect of other patients that night, disclosed by the CCTV footage taken that night.
Dr George recorded the appellant’s psychological symptoms, the treatment provided to the appellant and the history of the appellant’s family issues. Dr George opined that the adjustment disorder arose in the context of the appellant’s nursing registration and employment being threatened. Dr George advised that he was not in a position to arbitrate the conflict between the respondent’s version of events and that of the appellant. Dr George confirmed that it appeared that the appellant left work due to the stress caused by the respondent’s actions with respect to the appellant’s employment arising out of the incident on 21 November 2017. Dr George commented that the question of whether the respondent’s actions were reasonable were central to the appellant’s entitlement to compensation, but that he was not in a position to determine that question. Dr George added that there did not appear to be any other cause of the appellant’s psychological injury other than as a consequence of the respondent’s actions.
Dr George reassessed the appellant at the request of the respondent on 12 February 2019.[34] Dr George recorded the appellant’s progress since the previous assessment and the ongoing treatment. Dr George assessed the appellant’s mental state and diagnosed the appellant as suffering from a chronic adjustment disorder with mixed anxiety and depressed mood. Dr George confirmed the history recorded in his first report and his opinion as to causation. In response to the respondent’s enquiry as to the relationship, if any, between the alleged injuries and the events that occurred at work following the incident on 22 November 2017, Dr George opined:
“The symptoms generated over time appear related directly to the events, which occurred on or around 20 to 22 November 2017. The disciplinary action against him has been a substantial contributor to his symptoms and the prolongation of symptoms because there does not appear to have been any finalisation of investigations or conclusions at this stage. lt also appears that his case has entered a legal sphere as well.”[35]
[34] Reply, pp 579–584.
[35] Dr George’s report dated 12 February 2019, reply, p 584.
Dr George was requested to answer further questions posed by the respondent. In his subsequent report dated 8 April 2019, Dr George confirmed his opinion that the appellant’s psychological condition arose as a result of the “performance appraisal investigation and potential discipline within the workplace.” Dr George added that he did not believe that the appellant suffered from any impairment.[36]
[36] Dr George’s report dated 8 April 2019, reply, pp 586–590.
THE SENIOR ARBITRATOR’S REASONS
The Senior Arbitrator identified that the first issue for her to determine was the cause of the appellant’s psychological injury and observed that there was a significant dispute between the parties in respect of that question. The Senior Arbitrator noted that the respondent asserted that the injury was wholly or predominantly caused by the disciplinary process put in place to address the appellant’s failure to complete the Seclusion and Restraint Register. The Senior Arbitrator also noted the appellant’s position, which was that the injury arose as a result of bullying, harassment and homophobic behaviour towards him. The Senior Arbitrator considered that the process adopted by the respondent could not be classed as performance appraisal or transfer.
The Senior Arbitrator summarised the appellant’s evidence and reviewed the annexures to the appellant’s statement dated 30 May 2019. She noted that significant detail in that statement was not given in the statement the appellant made to the investigator dated 13 February 2018. The Senior Arbitrator further noted that there were a number of inconsistencies in the appellant’s evidence, namely that:
(a) in the appellant’s statement, he asserted that he did not witness the whole incident and needed to consult the other nurses on the shift. However, in annexure “K,” the appellant asserted that his understanding was that in the meeting with the NUM at 8 am on 28 November 2017, the NUM had recorded his account of the event. The appellant said that it was his understanding that 50% of the Restraint Register had been completed. The Senior Arbitrator observed that the appellant’s assertion in annexure “K” had not been mentioned in either of the appellant’s statements, and
(b) the letter written by The General Secretary on behalf of the appellant (annexure “H”) asserted that when the appellant left the NUM’s office, he was satisfied that he had provided the required information for the Restraint Register, inconsistent with annexure “K.” The Senior Arbitrator observed it was at odds with the NUM having sent an email at 4.57 pm on 28 November 2017 requesting the information because the Restraint Register had no information recorded about the event. It was further inconsistent with the email from the Clinical Nurse Consultant dated 13 December 2017 indicating that the information remained outstanding.
The Senior Arbitrator concluded that as there was no evidence to the contrary from the NUM, the meeting between the appellant and the NUM, in which the appellant verbally provided some information to the NUM, did occur.
The Senior Arbitrator reviewed the evidence of both the Endorsed Enrolled Nurse and the NUM denying the allegations made by the appellant. The Senior Arbitrator reproduced the emails seeking the information, sent by the NUM on 27 November 2017 and 28 November 2017, noting it was common ground that the appellant did not respond to the first email. The Senior Arbitrator also reproduced the letter to the appellant dated 12 December 2017 in which the appellant was advised that, because of his inappropriate behaviour his duties would be restricted, and the appellant’s name would be entered on the Service Check Register. The Senior Arbitrator observed that the letter had not been sent and a meeting was scheduled for 21 December 2017. The Senior Arbitrator noted the appellant was absent on sick leave on 21 December 2017 and, on that day, the letter was emailed to the appellant.
The Senior Arbitrator summarised the evidence of the Inpatient Service Manager, the Clinical Operations Manager and the local family medical practice clinical notes, as well as the medical reports of Dr Selwyn Smith, Dr George and A/Prof Robertson. The Senior Arbitrator also summarised the submissions made by both parties.
The Senior Arbitrator described the appellant’s evidence as “convoluted” and thought it difficult to follow. The Senior Arbitrator turned to the factual issues and considered in turn the evidence pertaining to each allegation relating to the appellant’s claim of bullying, harassment and vilification.
The Senior Arbitrator pointed out the inconsistencies in the appellant’s evidence and concluded that she was not satisfied that the appellant was the subject of a pattern of vilification. The Senior Arbitrator added that there was no persuasive evidence that there was an attempt at constructive dismissal or that there was a consistent pattern of harassment and vilification on the part of co-workers, as recorded by A/Prof Robertson. The Senior Arbitrator further concluded that there was not a culture of fear within the Unit.
The Senior Arbitrator observed that the appellant’s allegations were serious and that the appellant had made a number of complaints about the short comings in the hospital so that it was surprising that the appellant had not made a documented complaint about the actions about which he now complained. The Senior Arbitrator considered that she was not satisfied that the appellant’s criticisms of the respondent’s policies and risk management were founded in fact and she could not find that there were multiple occasions when bullying and interpersonal conflict occurred.
The Senior Arbitrator considered the evidence about the incident on 21/22 November 2017 and noted that there was no real dispute about what happened on that date. The Senior Arbitrator summarised the actions required by the NSW Health Aggression, Seclusion and Restraint policy. The Senior Arbitrator noted that:
(a) the appellant did not fill out the Restraint Register before completing his shift but did complete an IIMS form;
(b) the Acting Nurse Unit Manager had asked the appellant the following day to fill out the Restraint Register, but the appellant refused because he considered the incident to have been self-defence;
(c) the NUM made similar requests on 23 November 2017, 27 November 2017 and 28 November 2017;
(d) the appellant did not say that because he was not present the entire time, he had difficulty in filling out the IIMS report;
(e) the appellant stated that following the event he sought treatment from Dr RD and was diagnosed with an anxiety disorder but the clinical notes disclosed that this did not occur until 8 January 2018, that is, after the appellant was handed the letters on 28 December 2017 and after the appellant learned that the Clinical Operations Manager had made a complaint about him.
The Senior Arbitrator said that, having considered that evidence, it was necessary to look at the medical evidence in order to determine whether the appellant’s psychological injury was wholly or predominantly caused by the respondent’s action in respect of discipline. The Senior Arbitrator noted the respondent’s submission that it was relevant that the appellant was able to work up until the time the respondent took disciplinary action. The Senior Arbitrator referred to the decision of Hamad v Q Catering Limited,[37] in which Snell DP acknowledged that a series of events can be cumulative and may be causative of the injury which does not manifest until later. The Senior Arbitrator said that she needed to be guided by the medical evidence.
[37] [2017] NSWWCCPD 6 (Hamad), [85].
The Senior Arbitrator considered that the treating medical evidence was not sufficiently detailed to assist in the determination of the issue. The Senior Arbitrator accepted that Dr George was best placed to provide an opinion because he had examined the appellant early (29 February 2018) and he had re-examined the appellant with the benefit of the documentation. The Senior Arbitrator said that it was evident that from the history provided to Dr George, the predominant reason for the development of the appellant’s psychological condition was the action taken by the respondent regarding discipline. The Senior Arbitrator observed that the action taken was a result of the appellant’s failure to complete the Restraint Register and the injury also stemmed from the complaint made by the Clinical Operations Manager in respect of the appellant’s registration as a nurse. The Senior Arbitrator noted that Dr George’s view was that these matters caused the appellant’s psychological injury.
The Senior Arbitrator reasoned that she preferred the opinion of Dr George over that of A/Prof Robertson because A/Prof Robertson focussed heavily on the appellant’s assertions that he was subjected to vilification, that such behaviour was sustained over time and that the disciplinary process was an attempt to constructively dismiss the appellant. The Senior Arbitrator pointed out that she had rejected those factual allegations.
The Senior Arbitrator gave reasons as to why she did not consider the actions constituted performance appraisal or that the transfer to day shifts was causative of injury. The Senior Arbitrator concluded that the respondent had established that the appellant suffered a psychological injury predominantly as a result of the respondent’s actions in relation to the disciplinary process, such actions being initiated by issuing the letters from the Clinical Operations Manager and the Director of Operations.
The Senior Arbitrator turned to the question of whether those actions were reasonable noting she was required to consider all of the relevant circumstances, which was an objective test. Those circumstances included the seriousness of the conduct, the nature of the respondent’s business and the appellant’s position in that business.[38] The Senior Arbitrator considered it highly relevant that the conduct of the appellant was serious. The Senior Arbitrator reasoned that the Mental Health Unit of a hospital involves considerable responsibility from everybody concerned and the requirement to follow the NSW Health policy was a material consideration.[39] The Senior Arbitrator said that it was clear that there is good reason for such a policy.
[38] Baldwin v Greater Building Society Ltd [2011] NSWWCCPD 18.
[39] Northern NSW Local Health Network v Heggie [2013] NSWCA 255;12 DDCR 95 (Heggie), [162].
The Senior Arbitrator observed that, despite several requests, the appellant did not complete the Restraint Register, although noted that the appellant dictated information to the NUM on 28 November 2017. The Senior Arbitrator said that nonetheless, she found that the respondent’s action to commence a disciplinary process viewed objectively, was reasonable. The Senior Arbitrator also thought it a serious matter that the appellant had failed to perform the observations of patients that he had signed off as having done. She said that, again, in the context of a Mental Health Unit, that was a serious matter despite the appellant having admitted that he had not performed the observations.
The Senior Arbitrator referred to the respondent’s submission that the manner in which the process was initiated was reasonable, in that:
(a) the Clinical Operations Manager’s letter proposed a fact-finding meeting scheduled to occur on 9 January 2018 at which the appellant could have a support person;
(b) the letter invited the appellant to provide a written response within 14 days or could respond in the meeting;
(c) the meeting would be confidential, and
(d) the interview would be recorded.
The Senior Arbitrator accepted that submission. The Senior Arbitrator noted that the appellant said he was “blindsided” by the letters and had not been given any notice of such action. The Senior Arbitrator observed, however, that the appellant had been given notice by the multiple requests made to him, the emailed letter from the NUM dated 21 December 2017 and the letters from the Clinical Operations Manager and the Director of Operations were given to the appellant. The Senior Arbitrator said it was appropriate to put those matters in writing. The Senior Arbitrator referred to the appellant’s submission that it was unreasonable to change the planned informal meeting to a formal one. The Senior Arbitrator rejected that submission on the basis that the concerns were about compliance with the relevant policy and failure to carry out patient observations, which were serious matters.
The Senior Arbitrator was of the view that the proposed formal process would afford the appellant the opportunity to have his submissions properly considered. The Senior Arbitrator referred to the appellant’s email to the NSWNMA dated 2 January 2018 and noted that the appellant was collating evidence and sought the assistance of the Association. The Senior Arbitrator found that the proposed meeting was scheduled in a timely manner, was a fact-finding exercise and clearly set out the matters the appellant was required to address.
The Senior Arbitrator said that the Risk Assessment conducted on 13 December 2017 recommended the appellant be placed in a more supervised role in order to provide an increase in educational support for the appellant, and to manage potential risks to patient and staff safety. The Senior Arbitrator said that given the nature of the allegations, it was reasonable that the employer performed a Risk Assessment, which was conducted by the Inpatient Service Manager and the NUM and approved by the Clinical Operations Manager and not solely conducted by one person. Further, the Director of Operations had indicated in his letter of 28 December 2017 advising of the outcome of the Risk Assessment that if the restrictions were removed at the conclusion of the investigation, the record on the Service Check Register record would be removed. The Senior Arbitrator observed that this indicated to the appellant that the restrictions may not be permanent. The Senior Arbitrator further observed that the Risk Assessment focussed solely on the two serious matters of not completing the Restraint Register and not performing the observations of the patients. The Senior Arbitrator found that, in the context of these serious matters, the notification on the Service Check Register until the investigation was complete was also reasonable.
The Senior Arbitrator concluded that, taking an objective view of the circumstances, it was reasonable for the Clinical Operations Manager and the Director of Operations to write to the appellant on 28 December 2017 in order to notify him of the investigation and to set up a fact-finding meeting. The Senior Arbitrator referred to her finding that those letters were the start of the disciplinary process and the receipt of them was the predominant cause of the appellant’s psychological injury. The Senior Arbitrator pointed out that the fact that the ultimate decision to take no action in respect of the allegations was not determinative, referring to the passage from Basten JA’s judgment in Heggie that in assessing reasonableness, the relevant material was that in existence at or prior to the time when the decision was made and the worker was advised.[40]
[40] Heggie, [14].
The Senior Arbitrator further concluded that the respondent had established that the respondent’s actions in relation to discipline were reasonable, the defence under s 11A of the 1987 Act was made out, and accordingly, there was an award for the respondent.
The Certificate of Determination issued on 8 November 2019 records:
“The Commission determines:
1. Award for the respondent.”
GROUNDS OF APPEAL
The appellant brings one ground of appeal expressed as follows:
“The Senior Arbitrator erred in finding that the employer’s actions were reasonable, and in doing so failed to provide sufficient reasons; and overlooked material facts and/or failed to give them appropriate weight.”
LEGISLATION
Section 11A(1) of the 1987 Act provides as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
SUBMISSIONS
The appellant’s submissions
The appellant submits that had facts that were overlooked been considered or other facts had been afforded more weight, there would have been a finding in his favour. The appellant refers to Webb v State of New South Wales[41] as authority for the proposition that in order to successfully challenge an arbitrator’s decision, material facts must have been overlooked or afforded too little weight.
[41] [2019] NSWWCCPD 50 (Webb), [100].
The appellant also refers to Raulston v Toll Pty Ltd,[42] in which Deputy President Roche observed that an arbitrator must give reasons for preferring one conclusion to another. The appellant quoted from the decision of King SC ADP in NSW Police Force v Hahn,[43] in which the Acting Deputy President observed:
“To my mind the essential propositions are uncontroversial and the important thing is that the reasons should give assistance to any appellate court called upon to consider them by indicating how the case was decided, and should explain to the parties, especially the losing party, how the result was arrived at and why the losing party lost. If they meet that standard, they need not be lengthy, elaborate or exhaustive and they need not deal with every feature of the case.”
[42] [2011] NSWWCCPD 25 (Raulston), [46].
[43] [2017] NSWWCCPD 51 (Hahn), [61].
The appellant submits that, in accordance with the passage from Heggie relied on by the Senior Arbitrator, in order to determine whether an action is reasonable, one must firstly determine specifically what the relevant action was that caused the injury. The appellant contends that the characterisation of the relevant action was unclear. The appellant says that the Senior Arbitrator relied on the opinion of Dr George that the psychological injury developed in the context of the appellant’s registration and employment being threatened. The appellant says that the respondent’s case was that the relevant disciplinary action was due to the appellant’s failure to complete the Restraint Register, but despite the respondent making further complaints about the appellant, the whole investigation and disciplinary process was based on the failure to complete the Restraint Register.
The appellant submits that it appears that the relevant action identified by the Senior Arbitrator was that the diagnosis of an adjustment disorder was made “after the letters given to [the appellant] on 28 December 2017 from [the Clinical Operations Manager] and the Director of Operations and after [the appellant] learned [the Clinical Operations Manager] had made a complaint about him to AHPRA.”[44] The appellant contends that the Senior Arbitrator subsequently recanted from that position later in her reasons when she made reference only to the receipt of the two letters.[45]
[44] BC v State of New South Wales, 2690/19, 8 November 2019 (reasons), [149].
[45] Reasons, [171].
The appellant contends that because of the inconsistencies in the Senior Arbitrator’s reasons, it is not apparent what was considered to be the relevant action. The appellant says that the referral to AHPRA was a very serious step which was fundamental to the appellant’s injury so that if the Senior Arbitrator did not take it into account, she ought to have done so.
The appellant says that the relevant action was the issuing of the two letters and the referral to AHPRA, which was entirely in response to the appellant’s alleged failure to complete the Restraint Register. The appellant submits that, despite taking issue with the appellant’s credit, the Senior Arbitrator accepted that the appellant attended on the employer to complete the Restraint Register. The appellant submits, however, that the appellant’s refusal to complete the Restraint Register was the alleged basis upon which the disciplinary process commenced. The appellant contends that the Senior Arbitrator’s finding is entirely inconsistent with her findings in respect of reasonableness.
The appellant asserts that the Senior Arbitrator’s review of the evidence overlooked significant and fundamental evidence or, in the alternative, the Senior Arbitrator gave that evidence too little weight. The appellant says that that evidence was fundamental to his case and if it had been considered would have been likely to have established that the respondent’s actions were not reasonable.
Firstly, the appellant says that an email was sent by the Clinical Nurse Consultant to a number of staff members in relation to completion of the Restraint Register, which included a request that both the appellant and another staff member, the Registered Nurse, complete the Restraint Register in respect of the same patient. The appellant submits that there is no evidence as to whether there had been disciplinary action taken against the Registered Nurse or whether she completed the Restraint Register. The appellant says that the fact that two people were named indicates that it was not the responsibility of one person, in this case, the appellant. The appellant says that, in fact, the email advises that the Restraint Register does not have to be completed exclusively by the person in-charge. The appellant adds that it is not suggested in this email that a failure to complete the Restraint Register is a serious matter and in fact describes the information as being of assistance to senior staff.
The appellant submits that, secondly, in the complaint made to AHPRA, it was said that the complaint had been discussed with the appellant, which it had not. The appellant submits that this goes directly to the issue of reasonableness. The appellant contends that while it is not clear whether the Senior Arbitrator took it into account, if she had, it was not reasonable and the failure to discuss the matter with the appellant amounted to a lack of procedural fairness. The appellant submits that the Senior Arbitrator overlooked this evidence.
The appellant says that thirdly, the Senior Arbitrator referred in her reasons to various emails passing between the appellant, the NUM and the Clinical Operations Manager commencing from 6 December 2017 but failed to consider these in her determination. The appellant contends that the evidence was given far too little weight when it was important evidence in the context of the commencement of the disciplinary process and the reasonableness of that process. The appellant refers to the email from the Clinical Operations Manager dated 6 December 2017,[46] in which the Clinical Operations Manager requested an informal meeting about the events on 22 November 2017 and said that at that time they were not dealing with misconduct. The appellant says that there is no indication at all about serious misconduct and asserts that ultimately, that was the finding made by the Senior Arbitrator. The appellant submits that while the appellant could not attend that proposed meeting, he was happy to attend at another time. The appellant says that there is no evidence that the Clinical Operations Manager responded but the Clinical Operations Manager proceeded to make a complaint to AHPRA on 13 December 2017. The appellant points out that he made further attempts to follow up on the email on 22 December 2017.
[46] Reply, p 246.
The appellant submits that all of the above goes directly to the determination of whether the respondent’s actions in commencing the disciplinary process by handing the appellant the two letters was reasonable and indicates that the Senior Arbitrator either failed to consider that evidence or afforded that evidence too little weight. The appellant submits that the Senior Arbitrator acknowledged that it was necessary to have regard to all of the circumstances.
The appellant refers to the Senior Arbitrator’s conclusion in respect of whether the respondent’s actions were reasonable, which was:
“Despite several requests [the appellant] did not complete the Register. I have accepted that he dictated to [the NUM] information on 28 November 2017 so that [the NUM] could complete the form. However, nonetheless I find the employer’s action to commence a disciplinary process, viewed objectively, was reasonable.”[47]
[47] Reasons, [160].
The appellant submits that the above passage does not provide a clear path of reasoning and discloses a failure to give reasons. The appellant adds that given the Senior Arbitrator’s finding that the appellant completed the Restraint Register, it cannot follow that commencing an investigation to deal with non-compliance when there had been compliance was reasonable.
The appellant refers to the Senior Arbitrator’s “brief” consideration of the evidence about the suggested informal meeting and submits that the Senior Arbitrator was required to look at all of the circumstances and, had she given that evidence due consideration, it may have been that the conduct would not be considered a serious matter. The appellant further submits that the fact that the meeting was initially intended to be an informal meeting reinforces the notion that the conduct was not a serious breach.
The appellant notes that the Senior Arbitrator took into consideration the fact that the appellant was given the opportunity to respond to the allegations but contends that the Senior Arbitrator did not give consideration to the fact that the Clinical Operations Manager reported the appellant to AHPRA. The appellant asserts that this action was taken without notice to the appellant, despite the Clinical Operations Manager advising she had discussed the issue with the appellant.
The appellant concludes that the investigation should never have been commenced and had the critical evidence been considered and/or afforded proper weight, the conclusion reached would have been different.
The respondent’s submissions
The respondent quoted the same passage from the judgment of Sackville AJA in Heggie which the Senior Arbitrator referred to in her reasons.[48] The respondent observed that Heggie is authority for the proposition that the question of reasonableness of actions by the employer with respect to discipline is an evaluative judgment.
[48] Heggie, [59]–[61].
The respondent submits that there is no error on the part of the Senior Arbitrator in respect of her finding that the respondent’s actions in relation to discipline were reasonable. The respondent says that the appellant was found to have falsified hospital records as well as failing to complete the hospital Restraint Register, both of which undermined the integrity of the health system and put the public at risk.
The respondent observes that the Senior Arbitrator’s task involved an assessment of a large body of various types of documentary evidence and her evaluation of that evidence and the conclusions she reached involved difficult and competing factual issues. The respondent submits that the assessment of that evidence was purely a matter for the Senior Arbitrator. The respondent contends that the Senior Arbitrator’s conclusion was not “contrary to incontrovertible facts or uncontested testimony” or “glaringly improbable” or “contrary to compelling inferences” in accordance with the principles established in Fox v Percy.[49] The respondent says that the appellant refers to only three pieces of evidence which were said to be overlooked or given insufficient weight by the Senior Arbitrator. The respondent contends that none of that evidence gives rise to a material fact of the kind required for appellate intervention.
[49] [2003] HCA 22; 214 CLR 118 (Fox v Percy), per Gleeson CJ, Gummow and Kirby JJ, [28]–[29].
The respondent refers to the staff email dated 13 December 2017 (annexure J to the appellant’ statement dated 13 February 2018) and submits that the “material fact” appears to be the fact that the appellant had a co-existing obligation with another staff member in respect of the same patient. The respondent contends that this is not a material fact of the kind referred to in Fox v Percy. The respondent adds that:
(a) the Senior Arbitrator was not asked to make an inferential finding of that kind, which is sufficient reason to reject the appellant’s argument;
(b) similarly, the appellant’s argument that there is no evidence that the appellant’s colleague was subjected to a disciplinary process and how that bore any relationship to the question of reasonableness was also not a submission made to the Senior Arbitrator. If it had been, the respondent may have run its case differently;
(c) the appeal does not challenge the finding that the conduct (including the falsification of records) was serious;
(d) the staff email was but one of the many attempts by the respondent to have the appellant complete the Restraint Register and is entirely consistent with the other evidence about the appellant’s failure to complete the Restraint Register. Further, the failure to complete the Restraint Register was not the sole reason for the disciplinary action, and
(e) there is no evidence that any co-existing duty to complete the Restraint Register would remove the appellant’s duty to do so. Additionally, the appellant has not explained how any such co-existing duty is rationally connected to the question of whether the disciplinary action taken against the appellant was reasonable.
The respondent asserts that the allegation that the Senior Arbitrator overlooked or failed to give sufficient weight to the email dated 13 December 2017 is misconceived.
The respondent refers to the complaint that the Clinical Operations Manager indicated to AHPRA that she had discussed the complaint with the appellant when she had not, which the appellant claimed gave rise to procedural unfairness in the disciplinary process. The respondent submits that:
(a) there was no misstatement in the complaint form. The Clinical Operations Manager lodged the complaint with AHPRA on 13 December 2017 and the matter had been raised with the appellant on numerous occasions in writing and once by telephone. The Clinical Operations Manager’s “yes” and “no” responses on the form were therefore accurate;
(b) no explanation is given by the appellant as to how the principles of procedural fairness apply to such action and no authority is cited to support the notion, and
(c) the conduct is considered to be reportable conduct by the Regulator and it is mandatory that such conduct is reported, which can be an anonymous report.
The respondent submits that the appellant’s assertion that this was a material fact is misconceived.
In relation to the email communications between the appellant, the NUM and the Clinical Operations Manager, the respondent submits that it is not clear from the appellant’s submissions what the purported material fact was. The respondent submits that the appellant has not explained why those emails fall into the class of evidence described in Fox v Percy.
The respondent maintains that the Senior Arbitrator did not fail to give reasons or fail to give sufficient reasons for her conclusion that the respondent’s actions in relation to discipline were reasonable.
The respondent submits that there is no common law duty to give reasons for a statutory decision[50] and that s 294(2) of the 1998 Act requires that an arbitrator give brief reasons attached to the Certificate of Determination. The respondent refers to Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Secretary of the Treasury,[51] in which Basten JA said:
“Generally, the concept of ‘reasons’ requires an explanation connecting any findings of fact with the ultimate decision. Where the legal test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint. (A different question arises if mandatory considerations have not been identified.)”
[50] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480.
[51] [2014] NSWCA 112, [46].
The respondent further referred to New South Wales Land and Housing Corporation v Orr[52] and quoted from Cypressvale Pty Ltd v Retail Shop Leases Tribunal[53] in relation to the principles that apply to the duty to give reasons.
[52] [2019] NSWCA 231 (Orr).
[53] [1995] QCA 187; [1996] 2 Qd R 462.
The respondent submits that, after setting out the issues in dispute, the evidence in relation to those issues and the submissions of both parties, the Senior Arbitrator set out fifteen paragraphs of reasons for her ultimate conclusion. The respondent submits that the Senior Arbitrator explained the accepted facts in relation to the appellant’s conduct and the disciplinary action taken in response to that conduct. The respondent says that those paragraphs adequately explain the Senior Arbitrator’s reasons for her ultimate conclusion and accord with the requirement to provide “brief” reasons.
The respondent asserts that the appellant’s criticism of the Senior Arbitrator’s reasons is selective and, contrary to the principle enunciated in Orr at [77], amounts to the application of a “fine tooth comb attuned to identifying error.” The respondent says that, contrary to the appellant’s assertion that the Senior Arbitrator found the appellant had completed the Restraint Register, the Senior Arbitrator did not. The respondent submits that the Senior Arbitrator only accepted that the appellant dictated a response to the NUM on 28 November 2017, which was after the appellant was in breach of the requirement and after the appellant had refused to complete the Restraint Register himself.
The respondent says that the appellant selectively referred to the Senior Arbitrator’s acceptance of the appellant’s evidence that he dictated a response to the NUM on 28 November 2017. The respondent submits that the acceptance must be read in the context of the Senior Arbitrator’s observations of what was required of the appellant in accordance with the relevant policy and the attempts the respondent made to have the appellant co-operate. The respondent further submits that even if the Restraint Register was completed by the appellant and the NUM on 28 November 2017, that does not cure the appellant’s failure to complete the Restraint Register on 22 November 2017, which would not preclude an investigation and disciplinary action from being reasonable.
The respondent submits that the appeal should be dismissed and the Senior Arbitrator’s decision should be confirmed.
The appellant’s submissions in reply
In reply, the appellant asserts that the respondent’s submissions do not properly address the arguments advanced by the appellant. The appellant says that it is clear that the appeal is from the finding that the respondent’s actions with respect to discipline were reasonable and it is not apparent why there had to be an assumption that this was the case. The appellant says that the respondent has not identified how the challenges to the decision are misconceived.
The appellant agrees that there was a large body of evidence but submits that the respondent has failed to address the fact that critical documents were not taken into account by the Senior Arbitrator. The appellant submits that it is not apparent what the respondent meant when it said that none of the documents constituted a material fact of the kind required in order to attract appellate intervention.
The appellant maintains that the respondent’s case was that the appellant had failed to complete the Restraint Register which was the basis for commencement of the disciplinary process. He says the reasonableness of that action is the issue in the appeal.
The appellant disputes that there was no finding that the appellant completed the Restraint Register and refers to the Senior Arbitrator’s acceptance of the evidence in that regard. The appellant adds that it is also incorrect to say that there was no misstatement on the form completed and sent to AHPRA by the Clinical Operations Manager. The appellant submits that there is no evidence to establish that the Clinical Operations Manager discussed the complaint with the appellant and that was a matter squarely raised by the appellant in the arbitration.
The appellant refers to the Basten JA’s observation quoted at [131] above and emphasises that the concept of reasons requires an explanation connecting the findings of fact with the ultimate conclusion. The appellant submits that this assists his case because there is an obvious discord between the Senior Arbitrator’s acceptance that the appellant had completed the Register and the fact that the disciplinary proceedings were commenced on the basis of the appellant’s failure to do so.
In conclusion, the appellant submits that in the context of that finding, the respondent has not explained why the conduct was reasonable.
DISCUSSION
The appellant concedes that the determination that the respondent’s actions were reasonable was a factual determination and that the principles identified in Webb apply. That is, the appellant must establish that material facts were overlooked or afforded too little weight by the Senior Arbitrator. The evidence identified by the appellant was:
(a) the email dated 13 December 2017 from the Clinical Nurse Consultant requesting a number of staff to complete the Restraint Register;
(b) the complaint made by the Clinical Operations Manager to AHPRA, which indicated that the Clinical Operations Manager had discussed the complaint with the appellant, and
(c) the series of emails commencing from 6 December 2017.
In relation to the email dated 13 December 2017, the only reference made by the Senior Arbitrator to that email was at [43] of the Senior Arbitrator’s statement of reasons, in which the Senior Arbitrator noted that it was evidence that the Restraint Register had still not been completed by 13 December 2017. That email, which was annexure “J” to the appellant’s statement, was relied on by the appellant as evidence that he had been told that it was not necessary for the Restraint Register to be completed exclusively by the nurse in-charge.[54] A perusal of the transcript discloses that at arbitration, the appellant made no submission about that document, and certainly did not make the submission now made about the relevance of, or the weight to be afforded to, that evidence.
[54] Appellant’s statement dated 30 May 2019, ARD, p 7, [39].
The appellant is reminded that an arbitration is not a trial run[55] and that a Presidential member may only intervene where it can be shown that an arbitrator’s decision was affected by error of fact, law or discretion.[56] It is not an error for an arbitrator to fail to deal with a submission that was not put.[57]
[55] Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4, [92].
[56] Section 352(5) of the 1998 Act.
[57] Dick’s Diesel Pty Ltd v Caddaye [2015] NSWWCCPD 68, [68].
In any event, the submission that the Senior Arbitrator failed to afford it sufficient weight is untenable. The email was addressed to a number of recipients and the subject matter was expressed as “Outstanding in charge review of seclusion and restraint.” The names of several patients were listed and the various staff members responsible for completion of the documentation for each particular patient appeared next to the patient’s name. Relevantly, the names of the appellant and the Registered Nurse were next to the name of the aggressive patient who stabbed the security guard on the night of 21 November 2017.[58]
[58] Annexure “J” to the appellant’s statement, ARD, p 42.
In my view, all that evidence establishes is that, as asserted by the appellant in his statement, the form did not have to be completed exclusively by the nurse in-charge. The evidence tends to show that appellant had failed to complete the restraint form for that patient as at 13 December 2017. The Senior Arbitrator took the view that the appellant’s assertion that he had completed the register in the NUM’s office on 28 November 2017 was inconsistent with other factual material, including this email from the Clinical Nurse Consultant. That observation by the Senior Arbitrator has not been challenged in this appeal.
The appellant submits that this evidence was material evidence that showed that the disciplinary process was unreasonable because there was no evidence that the other staff member was disciplined. The appellant’s submission cannot be accepted. The document is not evidence that the other staff member’s failure to complete the register related to the same incident and there is no evidence that the other staff member had failed to respond appropriately to numerous requests from the employer to complete the register. The appellant’s entire behaviour in refusing and failing to adequately complete the Restraint Register was the subject of the disciplinary process and there is no evidence that the other staff member exhibited such behaviour. Whether or not the other staff member was disciplined in respect of her behaviour, about which there is no evidence, is irrelevant to the question of whether the disciplinary action taken by the respondent in respect of the appellant’s conduct was reasonable, which must be determined on its own facts.
The appellant further alleges that the Senior Arbitrator failed to take into account, or give sufficient weight to, the evidence that the Clinical Operations Manager lodged the complaint with AHPRA, indicating that she had discussed the complaint with the appellant, when she had not. The appellant says the failure to discuss the complaint with the appellant was procedurally unfair.
The Clinical Operations Manager described the complaint as the appellant having:
(a) failed to follow up on the completion of the Restraint Register;
(b) failed to complete the document when directed to do so, and
(c) signed the observation charts when he had not undertaken those observations.[59]
[59] Summary of complaint or concern, Reply, p 206.
The Clinical Operations Manager indicated that she had discussed those concerns with the appellant.
The Senior Arbitrator found it reasonable that the respondent commenced the disciplinary process in the context of numerous unheeded requests directed at the appellant to comply with his obligation to ensure the Restraint Register was completed. The Senior Arbitrator noted that the failure to do so, together with the appellant’s false entries in the observation charts, were serious matters.
Given the undisputed factual evidence of the numerous communications with the appellant about completing the Restraint Register, it cannot be said that that concern had not been discussed with the appellant.
There is no evidence that the complaint about the appellant falsely completing the observation chart had been discussed with the appellant. It is necessary therefore to determine whether, on the basis of an assumption that there had been no such discussion, the failure to discuss the matter was sufficient evidence to displace the Senior Arbitrator’s decision that the respondent’s disciplinary action was reasonable.
The appellant did not dispute that he had falsified the records. The complaint form was not predicated by a requirement that the complaint be discussed with the appellant before the complaint could be lodged. The complaint form indicates that a complaint could have been lodged anonymously.
The appellant submits that the failure to discuss the complaint with the appellant amounts to a denial of procedural fairness. The appellant does not explain why it was unfair for the respondent to lodge a complaint with AHPRA without having first discussed the complaint with the appellant. The appellant admitted that the allegation was true. In the context of patient safety and hospital obligations, the breach was serious. Taking into account those matters, it cannot be said that the appellant had been treated unfairly. Further, as observed by Roche DP in Raulston (citations omitted):
“In summary, the role of a Presidential member is to determine if the decision appealed against is affected by error and, if so, to correct that error. The error must be one that has affected the outcome.”[60]
[60] Raulston, [31].
It cannot be said that the Senior Arbitrator failed to take into account a material fact which, if considered, would be of sufficient weight to disturb the Senior Arbitrator’s decision, in accordance with the principles in Raulston.
Any failure on the part of the Senior Arbitrator to give consideration to the absence of evidence that the Clinical Operations Manager had discussed the complaint with the appellant is, in my view, immaterial. The probative value of such evidence has not been explained, other than it was unfair to the appellant. I have discussed that submission and rejected it above.
Even if the action by the Clinical Operations Manager in lodging the complaint was not reasonable, not every action in the disciplinary process must be reasonable. In Department of Education and Training v Sinclair,[61] Spigelman CJ (with Hodgson and Bryson JJA agreeing) observed:
“Furthermore, the case before Sheahan J primarily focused on the whole course of Departmental conduct as constituting the relevant ‘substantial contributing factor’ for purposes of s 9A. His Honour appeared to approach the s 11A issue on the same basis. This is an appropriate course to adopt in a context concerned, and concerned only, with psychological injury arising from matters such as ‘demotion, promotion, performance, appraisal, discipline, retrenchment or dismissal’. Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.
His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’.”[62]
[61] [2005] NSWCA 465; 4 DDCR 206 (Sinclair).
[62] Sinclair, [96]–[97].
It follows that any failure on the part of the Senior Arbitrator to consider that evidence has not affected the outcome in this case, so that it is not appropriate for a Presidential member to intervene in the Senior Arbitrator’s decision that the disciplinary action was reasonable.
The appellant further asserts that the Senior Arbitrator erred by failing to consider, or by affording too little weight to, the evidence that consisted of a series of emails passing between the appellant, the NUM and the Clinical Operations Manager, commencing from 6 December 2017.
The appellant submits that the email from the Clinical Operations Manager to the appellant dated 6 December 2017 requested an informal meeting with the appellant to discuss the events on 22 November 2017 and advised that she was not dealing with issues of misconduct. The appellant explains that it was not alleged that there was a case of misconduct, which was inconsistent with the Senior Arbitrator’s ultimate conclusion that the complaints about the appellant’s conduct were serious. The appellant submits that he was happy to attend an informal meeting at a later date, and without explanation, the Clinical Operations Manager proceeded to lodge the complaint with AHPRA. The appellant submits that in that context, the appellant was handed two disciplinary letters, and he was informed that there would be a formal meeting, which he says was not reasonable. The appellant says that the Senior Arbitrator failed to consider all of the circumstances.
It is relevant to consider the contents of the email from the Clinical Operations Manager to the appellant dated 6 December 2017. In that email, the Clinical Operations Manager requested an informal meeting with the appellant to discuss the following:
“During a phone call we had and from feedback I have received from other clinical and managerial staff you had interactions with on [22 November 2017] I have some concerns I would like to discuss concerning behaviour and clinical decision making during your shift.
I do not seek a formal meeting of misconduct at this time, I am seeking your understanding and insights into the decisions you made and behaviour exhibited.”[63]
[63] Reply, p 246.
It is apparent that the informal meeting was intended to address the appellant’s behaviour and clinical decisions made on that particular shift and the feedback the Clinical Operations Manager had received from other staff. This is consistent with her evidence at [43] above.
The letters addressed to the appellant dated 28 December 2017 clearly encompassed a wider set of complaints than the concerns expressed in the email from the Clinical Operations Manager dated 6 December 2017. The Senior Arbitrator considered the complaints which were the subject of the letters dated 28 December 2017 to be serious. She observed that:
“Working in a Mental Health Unit of a Hospital involves considerable responsibility from all parties. NSW Health had a policy of the Restraint Register needing to be completed. In Heggie at [162] it is stated ‘Compliance with the Policy Directive is not determinative of the objective reasonableness of the Health Network’s actions, but it is a highly material consideration.’ Clearly there is good reason for such policy… .
… I find the employer’s action to commence a disciplinary process, viewed objectively, was reasonable. Up to this point in time, there had been several … requests to complete the Register. Furthermore, when the employer viewed the CCTV footage … it discovered that [the appellant] had not in fact performed observations of patients that he signed off having performed. Again, I find that in the context of working in a Mental Health Unit this is a serious matter.”[64]
[64] Reasons, [159]–[160].
In concluding that the conduct was serious, the Senior Arbitrator took into account the potential impact upon patients if the Restraint Register was not completed and the observations were not made. Nether of those matters were expressed to be the subject of the email proposing an informal meeting.
I do not accept the appellant’s submission that it was unreasonable that the respondent elected to propose a formal meeting to investigate those matters, rather than conduct the informal meeting proposed to address the appellant’s conduct on the shift on 21/22 November 2017. The Senior Arbitrator cannot be said to have erred in finding that the conduct was reasonable in that context. Further, it cannot be said that it was not open to the Senior Arbitrator to consider that the appellant’s failure to complete the Restraint Register and falsely sign off on patient observations was serious. The only basis upon which the appellant asserts that it was not open to the Senior Arbitrator to make that finding was that the conduct which was alleged to have occurred referred to in the email dated 6 December 2017 was not considered to be misconduct. There is no conflict between the Senior Arbitrator’s finding in relation to the concerns raised in the letters dated 28 December 2017 and description of the conduct in the email dated 6 December 2017.
The appellant further asserts that the Senior Arbitrator gave inconsistent and insufficient reasons to explain her conclusion that the actions were reasonable.
The appellant asserts that the Senior Arbitrator accepted that the appellant attended on the NUM on 28 November 2017 and completed the Restraint Register and that acceptance was inconsistent with her finding that the appellant had failed to complete the Restraint Register. The Senior Arbitrator did not find that the appellant completed the Restraint Register or that the Restraint Register was completed in that meeting. The Senior Arbitrator accepted that the appellant dictated information to the NUM so that the NUM could complete the form. The Senior Arbitrator qualified that acceptance by observing that up until that point, the appellant had not complied with a number of requests for him to complete the Restraint Register and the appellant had falsely completed the observation chart. The Senior Arbitrator found that, notwithstanding the fact that the appellant had attended upon the NUM, it was reasonable for the respondent to undertake the disciplinary action.[65]
[65] Reasons, [160].
It follows that there was no inconsistency in the Senior Arbitrator’s reasons or her ultimate conclusion.
The appellant contends that it is not apparent from the Senior Arbitrator’s reasons precisely what action she considered was causative of the injury. The appellant expressly indicated that the appeal was limited to the allegation of error on the part of the Senior Arbitrator in determining whether the respondent’s actions with respect to discipline were reasonable. It is not challenged that the Senior Arbitrator accepted the view of Dr George that the predominant reason for the development of the appellant’s psychological injury was the employer’s actions regarding discipline.
The appellant relies on the passage from Hahn as to an arbitrator’s requirement to give reasons. That is, the reasons should explain to the parties, especially the losing party, how the result was arrived at and should be sufficient to show the appellate court how the case was decided. The appellant submits that, in accordance with Heggie, the Senior Arbitrator was required to determine specifically what the relevant action was that caused the injury.
The Senior Arbitrator provided the following reasons in respect of her finding in relation to the whole or predominant cause of the injury and whether it was reasonable:
(a) the appellant was not diagnosed as suffering from an adjustment disorder until after the two letters dated 28 December 2017 were handed to him and he learned of the complaint to AHPRA;
(b) the appellant was able to work until the respondent took the disciplinary action but applying Hamad, a series of cumulative events may be causative. On that basis she needed to be guided by the medical evidence;
(c) Dr George was best placed to provide an informed opinion, and
(d) Dr George’s opinion was that the predominant reason for the development of the injury was the respondent’s disciplinary actions, which stemmed from the appellant’s failure to complete the restraint Register and the complaint being lodged with AHPRA.
The Senior Arbitrator arrived at the following conclusion:
“I find that … [the appellant] developed a psychological injury predominantly as a result of the employer’s actions taken in relation to disciplinary process, by initiating the same when sending the letters from [the Clinical Operations Manager] and [the Director of Operations]. [The appellant] advised Dr George from that point in time he felt distressed.”[66]
[66] Reasons, [157].
It is abundantly clear from the above conclusion that the Senior Arbitrator found that the disciplinary action which predominantly caused the injury was the receipt by the appellant of the two letters dated 28 December 2017. It is also abundantly clear that the Senior Arbitrator provided sufficient reasons to explain that conclusion.
The conclusion reached by the Senior Arbitrator was open to her.
CONCLUSION
The appellant has failed to establish error on the part of the Senior Arbitrator. There is therefore no basis upon which the Senior Arbitrator’s determination should be disturbed and the determination is confirmed.
DECISION
The Senior Arbitrator’s Certificate of Determination dated 8 November 2019 is confirmed.
Elizabeth Wood
DEPUTY PRESIDENT
19 June 2020
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