BHK v Secretary, Department of Education - [2024] NSWPICPD 10

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	BHK v Secretary, Department of Education [2024] NSWPICPD 10
APPELLANT:	BHK
RESPONDENT:	Secretary, Department of Education
INSURER:	Allianz - As Agent for the NSW Self Insurance Corporation
FILE NUMBER:	A1-W7840/22
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	15 February 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 17 April 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – psychological injury – section 11A of the Workers Compensation Act 1987 – action taken by an employer in respect of discipline held to be reasonable action – Northern NSW Local Health Network v Heggie [2013] NSWCA 255 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr I Collins, solicitor
Respondent:
Mr S Grant, counsel
Hall & Wilcox
DECISION UNDER APPEAL
SENIOR MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	17 April 2023

INTRODUCTION AND BACKGROUND

The appellant, BHK, commenced employment with the respondent, Secretary, Department of Education, in 2020, teaching at various high school campuses in the north of New South Wales. On 8 December 2021, the appellant was informed by letter of a complaint made against him asserting various inappropriate interactions with students. Particulars of the complaint were not provided to him due to the ongoing investigation, but the appellant was directed to maintain professional conduct with students, amongst other things, until investigations were completed. He was advised that further inappropriate conduct may result in additional action being taken against him, and that he would have an opportunity to respond once the allegations were investigated and put to him.[1]
[1] Reply to Application to Resolve a Dispute (reply), p 18.
The appellant, despite being distressed about the notification, continued to work, and in 2022, began working at another high school campus within the same District. Between December 2021 and March 2022, interviews took place with the stakeholders. During this time, further allegations of seriously improper and sexualised comments to students were made against the appellant. Accordingly, on 4 April 2022, the appellant was issued with a letter dated 29 March 2022 which informed him that his permission to work in any NSW Department of Education school or facility was temporarily withdrawn, and he was placed on a list of people who were not to be employed (NTBE) in any capacity.[2] The appellant was reminded of the directions given in the prior letter. He was informed that investigations would continue and evidence would be gathered, and that he would be given a breakdown of the allegations in due course. He was verbally informed that a timeframe could not be guaranteed, particularly as some of the children and families involved in the allegations were affected by the floods which had devasted Northern NSW at that time.[3] On 13 September 2022, the allegations against the appellant were particularised in a detailed letter. The appellant remained an employee of the respondent as of the date of the Senior Member’s decision.
[2] Reply, pp 20–21.
[3] Statement of Ms Lord, Investigator - Professional and Ethical Standards Directorate – Department of Education, Application to Admit Late Documents (AALD), p 11.
Before receiving these allegations, the appellant made a claim for workers compensation for a psychological injury arising from alleged unfair treatment by the respondent.[4] The claim was made on 13 April 2022. It was denied by the respondent on 17 May 2022 in a notice issued pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).[5] The respondent disputed that the appellant had any entitlement to workers compensation, as his injury was caused by reasonable action taken or proposed to be taken by the employer, a defence available under s 11A of the Workers Compensation Act 1987 (1987 Act). This dispute was maintained on 23 November 2022 following an internal review, on the basis that the appellant’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline or dismissal.[6]
[4] Application to Resolve a Dispute (ARD), p 29.
[5] ARD, p 31.
[6] ARD, p 38.
The dispute proceeded to the Personal Injury Commission (Commission) for resolution and was heard by Senior Member Haddock on 17 March 2023, after a conciliation failed to bring parties to a settlement. The Application to Resolve a Dispute (ARD) lodged on 29 November 2022 pleaded a disease injury with a deemed date of injury of 4 April 2022 due to alleged bullying and harassment, interpersonal differences and unfair treatment by the respondent. The deemed date of injury of 4 April 2022 was affirmed to be the last date the appellant worked and the first date of the claim for weekly compensation. The matter proceeded on the premise that there was no dispute as to whether the appellant had sustained an injury within the meaning of s 4 of the 1987 Act; rather, the only issue for determination was whether there was a defence available to the respondent pursuant to s 11A of the 1987 Act.[7]
[7] Reasons, [14]–[22].
Senior Member Haddock determined the matter in favour of the respondent in a Certificate of Determination dated 17 April 2023, being satisfied that the appellant’s injury was caused by reasonable action taken in respect of discipline.[8] Accordingly, the appellant was not entitled to any workers compensation benefits. The appellant has appealed on the basis that the Senior Member erred both in fact and in law in making this finding.
[8] Reasons, [260].

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 – Determination of matters ‘on the papers', and WC3 – Presidential appeals and questions of law; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.

PRELIMINARY MATTERS

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.

De-identification

Given the facts of the matter and the circumstances of some of the dramatis personae involved, the names of the appellant and some witnesses were quite correctly de-identified in the decision below. I will adopt the same course on appeal.
Given the issues which are in contest in this appeal, it is not necessary for me in deciding this appeal to identify the individual schools involved. In my view having regard to the evidence, naming the institutions may have a tendency to identify either the appellant or some of the witnesses.

THE SENIOR MEMBER’S REASONS

The only issue for determination was whether the respondent had a defence to the claim pursuant to s 11A of the 1987 Act. In finding this defence existed, the Senior Member referred to the numerous evidentiary statements, documents and medical notes and reports before her.[9]
[9] Reasons, [23]–[185].
The Senior Member considered the appellant’s statement of 18 May 2022,[10] in which he described feeling sickened by the first complaint as he was kept in the dark as to the specific allegations, which worsened after being banned from any work following the further allegations. Due to the closeknit community in which he worked and resided, he said he was regularly exposed to students, and felt as though he was being talked about and watched, including an occasion when he was filmed while shopping. The Senior Member noted the appellant’s assertion that the situation impacted his partner (also a teacher), as she was constantly badgered. The appellant commented on his reputation being ruined by the accusations made against him, and his confidence eroding by having accusations made against him, which were not particularised for some seven months. He felt that the respondent took no steps to protect him, notwithstanding the social stigma associated with sexual allegations within such a small community. He visited his doctor on several occasions, with the impact on his mental health putting not only him, but his family under extreme pressure.[11]
[10] ARD, pp 1–2.
[11] Reasons, [24]–[40].
The Senior Member then referred to the evidence of the respondent’s Professional and Ethical Standards (PES) investigator, Ms Christine Lord who supplied a statement of 14 March 2023, as well as email and written correspondence in respect of the investigation and disciplinary action.[12]
[12] AALD, pp 11–58; reasons, [43]–[118].
Ms Lord provided a chronology, stating that on 29 October 2021, the PES Preliminary Intake Team (PESPIT) was informed of alleged inappropriate interaction by the appellant with a student. Initial enquiries were made with staff and relevant students, and on 18 November 2021, PESPIT finalised its review and assessed that investigation was warranted. The acting school principal at the time was contacted shortly thereafter to discuss risk mitigation, an investigation plan and risk assessment, finalised on 7 December 2021. On 8 December 2021, this was assessed by the Department’s Child Wellbeing Unit, who approved the investigation. On the same date, Ms Lord advised the incoming new principal of the method of investigation, and advised him verbally and by email of the step-by-step process to take. This included instructions to contact the appellant by phone, what to relay to the appellant, how and when to organise an in-person meeting, how to conduct the meeting, and to ensure the appellant was supported by allowing a support person and to schedule the meeting to accommodate this. Ms Lord advised that the notification letter of 8 December 2021 could then be provided to the appellant, who was to be instructed to contact her for information, as well as a ‘bulletin’ which provided information regarding the method of investigation, how an employee may respond, support available and possible outcomes.[13]
[13] Reasons, [43]–[61].
This took place, and the appellant rang Ms Lord who explained to him the investigation process, next steps and support available. Ms Lord advised that the full nature of the allegations could not be provided at the time due to child protection concerns, and that, based on the current information, there were no immediate concerns that would warrant the appellant losing his job. He was advised to adhere to the directions outlined in the letter of 8 December 2021 regarding his conduct, which would be in place until 10 January 2022 to allow for interviews to be conducted. Ms Lord noted however that the final interview took place on 24 February 2022. During this time, the community was impacted by flooding, and further allegations came to light.[14]
[14] Reasons, [62]–[70].
On 29 March 2022, the PES finalised the letter informing the appellant that he was to be placed on the NTBE list due to further allegations being made against him. Ms Lord provided advice to the principal, again, regarding the correct procedures to take when issuing this notification, reminding him that the appellant be allowed a support person and his welfare checked. After the notification was issued on 4 April 2022, the appellant contacted Ms Lord. He said he was “shell shocked” to hear of further allegations, which he claimed were lies perpetuated by a group of students. Ms Lord informed the appellant of the process, advising him that numerous stakeholders were approached. The appellant argued the fairness of the process as he was not given details of what he had done wrong, and also that she did not contact him on 10 January 2022 as expected. Ms Lord explained that additional allegations had been raised which required reassessment of risk and re-engaging with families affected by floods. After this, she would provide a full breakdown of allegations, but unfortunately could not provide an exact timeline. The detail of the allegations were sent to the appellant in September 2022.
The Senior Member noted that Ms Lord also addressed the appellant’s concerns regarding confidentiality of the process. These were addressed in the letter of 8 December 2021 and an email of 22 April 2022, noting that all persons involved are reminded that the investigation was confidential. The school principals were expected to manage confidentiality as best as possible, being around students daily. Ms Lord asserted that the paramount consideration when responding to allegations involving child protection is the safety, welfare and wellbeing of children, with risk management to be assessed on an on-going basis depending on the circumstances of each matter.[15]
[15] Reasons, [99]–[118].
The Senior Member then moved onto the medical evidence, firstly referring to the medical records of a local clinic ,[16] wherein Dr Verity Griffiths reported that on 8 April 2022, the appellant was seen for depression and distress following workplace accusations. The Senior Member noted the appellant reported that his mental health had been stable until this event, and required referral to a psychologist. The Senior Member noted a clinical record of 21 April 2022 in which the appellant reported being distressed by seeing an accuser at a local supermarket and feeling as though the community was talking about him. Around this time, the appellant attended the emergency department of a local hospital with chest pain which was diagnosed as stress. On 12 May 2022, the doctor recorded that the appellant had been filmed by a student.[17]
[16] ARD, pp 20–28.
[17] Reasons, [119]–[129].
The Senior Member referred to a medical report from Mr Mal Huxter, the appellant’s psychologist, of 27 October 2022.[18] Mr Huxter had first counselled the appellant in respect of personal issues in 2019, continuing throughout 2020 to 2021. The appellant had made progress and by late 2021, his stress and anxiety had resolved, confirmed on 16 February 2022. The appellant next returned to him on 9 August 2022, appearing so severely stressed, anxious and depressed that he could not complete psychometric mental state measures, arising from being deemed unemployable because of the accusations under investigation. Mr Huxter reported that the appellant was removed from the school with no clear information and thereafter was socially ostracised and shamed. He believed the wider community was targeting his family.[19]
[18] ARD, pp 3–9.
[19] Reasons, [151]–[166].
Mr Huxter diagnosed the appellant with adjustment disorder and mixed anxiety and depressed mood which developed on 4 April 2022. The appellant had reacted rationally to the initial allegations, believing they were misconstrued allegations which would be dealt with during the first investigation. The cause of his condition was specifically being removed from class and placed on the NTBE list on 4 April 2022; not being given any information about the accusations; uncertainty; perceptions of social ostracisation; loss of reputation; harassment in public places, and lack of employment. Mr Huxter opined that there was a clear relationship between the appellant’s condition and how the complaint seemed to be managed, with recovery depending on whether his name could be cleared.[20]
[20] Reasons, [167]–[172].
The Senior Member observed the medical opinion of Dr Brian Potter, psychiatrist, who reported on 19 August 2022 at the request of the appellant’s solicitor,[21] but did not find this report to be helpful in her determination of the dispute.[22] The doctor was unable to provide a formal psychiatric diagnosis. The doctor did accept that the appellant may have had adjustment disorder at the time of leaving work but could not comment on the relationship of the condition to any injury.[23]
[21] ARD, pp 10–19.
[22] Reasons, [249].
[23] Reasons, [131]–[150].
The Senior Member referred to the report of Dr Peter Young, psychiatrist, dated 1 March 2023,[24] qualified by the respondent, whose opinion had been accepted by the appellant. Dr Young recounted that the appellant felt devastated and shocked from the initial complaint in December 2021 but became further distressed in April 2022 when informed of the further allegations. The appellant reported significant symptoms of anxiety, depression and stress in the context of the prolonged investigation in which he had not been provided with timely information, and where he believed there had been breaches of confidentiality. Dr Young diagnosed an adjustment disorder wholly and predominantly caused by the respondent’s actions in respect of discipline and/or dismissal.[25]
[24] AALD, pp 2–9.
[25] Reasons, [174]–[185].
In submissions to the Senior Member, the respondent argued that the appellant’s injury was wholly or predominantly caused by the circumstances in April 2022. It relied on the evidence of Mr Huxter who opined that the appellant was not exhibiting symptoms as of February 2022, and Dr Young’s opinion that the respondent’s actions in April 2022 were the predominant cause of the appellant’s injury. The respondent asserted that this was also confirmed in the GP’s records of 8 April 2022. The respondent submitted that the investigations commenced fairly quickly, and enquiries had to be made of each individual, which would take time. The respondent had acted reasonably between 8 December 2021 to 4 April 2022, and the length of time was not unusual or unreasonable. The respondent submitted that its behaviour should be looked at from the point of view of a reasonable observer who was aware of the necessity to put the interests of students first. Ms Lord’s evidence provided detail as to how the investigation was to be conducted, including care of the appellant’s welfare, all of which were reasonable steps, and part of a well-defined process. The respondent asserted there to be a ‘fine and delicate balance’ between the paramount interests of the children and ensuring procedural fairness to the appellant. The respondent also relied on the ‘bulletin’ as evidence for the steps taken, highlighting that it was not unusual for teachers who worked in proximity with children who had made allegations, to not be informed of the precise allegations at the outset.[26]
[26] Reasons, [190]–[202].
The respondent submitted that notwithstanding the irrelevance of the events after April 2022 (including interactions with the students and the community), the time taken to investigate and inform the appellant of the allegations in September 2022 was not unreasonable. There was the impact of COVID-19 and the floods to consider, in addition to the enquiry being of a difficult and time-consuming nature.[27]
[27] Reasons, [203]–[211].
The appellant argued that he was informed the investigation would be confidential and timely, taking between three to nine months. Instead, it took five months for him to be stood down without detail of the allegations and then he was not given an opportunity to respond for 11 months. Up until April 2022, he had been told that the complaints would be dealt with quickly, promptly and with natural justice balancing fairness. However, he perceived that he had been found guilty with the dramatic step of being placed on the NTBE list and reported to the Office of the Children’s Guardian, despite not having details of the allegations. The appellant submitted that even at their highest, the allegations were not matters of significant seriousness, such as an allegation of sex or sexual abuse.[28]
[28] Reasons, [212]–[219].

The appellant argued that the injury had not been wholly or predominantly caused by action of the respondent, having also been impacted by “actions of the students and community, and being shunned by the staff”. The delay in the investigation aggravated his condition. The appellant said that if the new allegations justified standing him down, he should have been provided with those allegations and an opportunity to respond. In regard to the medical evidence, the appellant submitted that Dr Young and Mr Huxter’s reports said the same thing. Dr Young said the injury had arisen following the allegations, being the prolonged investigation process, not being provided with timely information and breaches of confidentiality. The appellant confirmed that 4 April 2022 was the deemed date of injury. He said that the respondent did not do anything from April 2022, so he was left in limbo.[29]
[29] Reasons, [220]–[227].
The Senior Member did not accept the appellant’s submission that his injury was also caused by what occurred on 4 April 2022, namely, that he was ‘shunned’ by students, staff and the wider community. The Senior Member found there to be no evidence as to when these interactions took place, or with whom. The appellant’s concern about being filmed by a student appeared to take place after the agreed date of injury of 4 April 2022, as it was reported by Dr Griffiths and Mr Huxter after he had been removed from the school. Further, it was the appellant’s own evidence from Mr Huxter that he was not suffering from a psychological condition prior to April 2022. Noting that the appellant had accepted Dr Young’s opinion that his injury was wholly or predominantly caused by the respondent’s actions, the Senior Member agreed with this finding, determining that the injury was “mainly or principally caused” by action in respect of discipline occurring on 4 April 2022 (referring to Ponnan v George Weston Foods Ltd[30]) within the meaning of s 11A of the 1987 Act.[31]
[30] [2007] NSWWCCPD 92.
[31] Reasons, [232]–[239].
The Senior Member did not accept that any of the actions before 4 April 2022 were relevant, as there was no evidence of injury at that time, nor incapacity following the first complaint of 8 December 2021. It was only after being informed of further allegations and being placed on the NTBE list on 4 April 2022 that the appellant described being “shell shocked” and sought medical attention from Dr Griffiths who diagnosed a psychological condition and issued a certificate of capacity. Mr Huxter also confirmed the appellant’s condition did not develop until April 2022. The Senior Member believed this correlated with being placed on the NTBE list.[32]
[32] Reasons [240]–[249].
The Senior Member thus focused on the respondent’s actions on 4 April 2022 for the purposes of s 11A. The Senior Member referred to Sackville AJA’s observations regarding action with respect to discipline and the objective test of reasonableness within the meaning of s 11A at [59] of Northern NSW Local Health Network v Heggie.[33] The Senior Member did not accept the appellant’s submission that the allegations made against him were not of “significant seriousness”, as the allegations included that the appellant had made “seriously improper and sexualised comments” to a student; “commented on the “arse” of a year 9 student; referred to a student as “Aspie” (assumed to be a reference to Asperger’s syndrome); discussed another student masturbating; referred to “hickeys”; referred to the likelihood of students committing suicide before they turned 30; made comments that may have caused gender diverse or gay or lesbian students to feel unsafe, excluded or disrespected; and discussed other students’ and his personal life with a year 9 student.”[34]
[33] [2013] NSWCA 255 (Heggie)
[34] Reasons, [251]–[252].
The respondent was investigating these allegations when more came to light which required further investigation and re-assessment of risk. The Senior Member accepted that the interests of the children were paramount to the respondent, and it was therefore faced with the option of allowing the appellant to continue teaching or removing him from contact with children, noting his position of authority over them and the expectation that school be a safe environment. The test in Heggie requires consideration of the appellant’s rights, but the weight to be given to them depends on the circumstances. The respondent had to weigh the appellant’s rights against the respondent’s duty to children for whom it had responsibility. In weighing this up, the Senior Member considered it was reasonable disciplinary action by the respondent to inform the appellant of the further allegations, investigate them, and remove him from teaching while that took place. The Senior Member thus found that the appellant’s injury was wholly or predominantly caused by reasonable action in respect of discipline, and it was therefore unnecessary to consider action with respect to dismissal.[35]
[35] Reasons, [253]–[260].
Although it was unnecessary to consider the respondent’s actions between 8 December 2021 and April 2022, the Senior Member did not think that the time taken or manner of investigation, or communication with the appellant were unreasonable, with reference to Ms Lord’s evidence. The events after 4 April 2022 were not relevant to injury but might be relevant to incapacity or treatment. The Senior Member reiterated that the injury occurred on 4 April 2022, which is the relevant date for considering the defence pursuant to s 11A of the 1987 Act.[36]
[36] Reasons, [261]–[262].
As the Senior Member held that the defence was available to the respondent pursuant to s 11A of the 1987 Act, the Certificate of Determination issued on 17 April 2023 records:
“1. There is an award for the respondent.”

GROUNDS OF APPEAL

The appellant advances four grounds of appeal, which interchange between being pleaded as either errors or “questions” of law or fact. I would note that this is an appeal within s 352 of the 1998 Act and not the referral to me of a Question of Law, a facility which exists under s 351 of the 1998 Act. There is no facility to refer a Question of Fact. The appeal process under s 352 involves the identification and correction of error, either of fact, law or discretion, and I will therefore proceed on that the basis that since the appellant has filed an appeal, each ground is seeking to establish error on the part of the Senior Member. Adopting the appellant’s approach as to how these grounds are framed, they appear as follows:

Errors of law

Ground One – “Should the Commission disregard any events relevant to causation of injury that post date the ‘deemed’ date of injury in terms of whether the injury arises ‘wholly or predominantly’ out of a disciplinary matter”.
Ground Two – “Should the Commission disregard any events that post date the ‘deemed’ date of injury when considering ‘reasonableness’ for s 11A of that disciplinary matter.”

Errors of fact

Ground One – “The [Senior Member] erred in finding the respondent’s disciplinary action on or up to 4/4/22 ‘reasonable’.”
Ground Two – “The [Senior Member] erred in failing to consider the causes of injury beyond the deemed date of injury 4/4/22.”

LEGISLATION

Section 11A(1) of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

DISCUSSION

Errors of law

As to Ground One

The appellant relies upon the Court of Appeal authorities of Heggie and Department of Education and Training v Sinclair.[37] The appellant argues that while “reasonableness” for s 11A purposes is to be judged at the time of injury,[38] the entire process needs to be examined when deciding causation. This, the appellant argues, is a wider period going beyond the deemed date of injury of 4 April 2022. The appellant says that the Senior Member was in error for failing to consider events beyond the deemed date of injury, contrary to Heggie and Sinclair.
[37] [2005] NSWCA 465 (Sinclair).
[38] Appellant’s submissions, [21].
In response to the appeal generally, the respondent says that the appellant is bound by the manner in which the case was conducted before the Senior Member. The respondent says that the appellant made a number of concessions at the hearing which now cannot be withdrawn. The focus at the hearing, as submitted by the respondent, was the period between December 2021 and 4 April 2022, with particular attention being paid to the period from 16 February 2022 to 4 April 2022.

Consideration

The appellant has not directed my attention to any particular aspects of the Senior Member’s decision where the error asserted in this ground is said to have arisen. I think that a fair reading of the decision would lead to the conclusion that the offending section of the decision is that appearing at reasons [232]–[239], where the Senior Member specifically makes findings in respect of what action wholly or predominantly caused the appellant’s injury.
I would note that while the Commission is not bound by strict or formal pleadings,[39] the appellant particularised his case in the ARD in the following manner:
“Injury Details - 4/04/2022
Type of Injury – Disease
Date of Injury – 4/04/2022 Deemed date
Place of Injury – Employers Premises
Injury Description / Cause of Injury and Death – Bullying and harassment, interpersonal differences unfair treatment by the Employer.”[40]
[39] Far West Area Health Service v Radford [2003] NSWWCCPD 10; Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2 from [40]. See also s 43 of the 2020 Act.
[40] ARD, p 7 of 8.
So the first thing is that the claim as particularised did not rely on matters beyond 4 April 2022. However given the Commission’s statutory mandate, this would not ordinarily be fatal to the claim.
Secondly and more importantly, the Senior Member has not disregarded events that post-date the injury, contrary to the particular passages from Sinclair relied on by the appellant. Rather, the Senior Member has made the following factual findings:
“I do not accept the [appellant’s] apparent submission that the injury was not wholly or predominantly caused by the respondent’s actions, because of the actions by students, staff, and the wider community, and what may be termed ‘shunning’.”[41]
And:
“The timing of the ‘shunning’ is also supported by the history Mr Huxter recorded at his consultation with the [appellant] in August 2022. The [appellant] said he had been removed from the school without clear information. He had been socially ostracised and shamed, laughed at and videoed by students. The context is that this took place after he was removed from his position, which was in April 2022.
The only medical expert who has specifically addressed this issue is Dr Young. The [appellant’s] solicitor said during the respondent’s submissions that he accepted Dr Young’s view.
Dr Young opined that the [appellant’s] injury was wholly or predominantly caused by the respondent’s actions. I accept his opinion, taking into account the other available evidence. The [appellant’s] injury was ‘mainly or principally caused’ by the respondent’s actions with respect to discipline.”[42]
[41] Reasons, [234].
[42] Reasons, [237]–[23].
These findings do not amount to a misapplication of either Heggie or Sinclair. The Senior Member has not held that as a matter of law, all events said to have occurred after the deemed date of injury are to be disregarded. Rather the Senior Member made factual findings that were open and available upon an evaluation of the evidence. At reasons [262] the Senior Member agreed with the respondent’s submission that occurrences after the appellant left work were not relevant.
Further, before the Senior Member the appellant embraced the opinion of Dr Young stating “… but we do accept the views of Dr Young”.[43] Dr Young was of the view that the appellant’s “incapacity at work is attributable entirely to the work injury.”[44] Dr Young’s view of the work injury is described in his report dated 1 March 2023.[45] Dr Young’s assessment and diagnosis appear at page 5 of his report.[46] These passages from Dr Young’s report do not link the injury or its causation to matters other than work. I accept the respondent’s submission that the appellant is bound by the manner in which the case was presented below.[47] The application was both pleaded and argued in a particular way, this cannot be altered on appeal.
[43] Transcript of proceedings 17 March 2023 (T), T 7.12.
[44] AALD, p 9.
[45] AALD, pp 2–9.
[46] AALD, p 6.
[47] Caruana v Darouti [2014] NSWCA 85, [124] per McDougall J.
No error has been established, this ground is dismissed.

As to Ground Two

The appellant’s complaint in this ground is a derivation of that pursued in Ground One. Principally the submissions allege the following error:
“The Court of Appeal in Heggies [sic] case approved the approach to be taken as stated in Sinclairs [sic] case that ‘A broad view is to be taken of the expression ‘action with respect of discipline’. It is capable of extending to the entire process involving disciplinary action, including the cause of the investigation’ [59].
The [Senior Member] failed to consider the ‘entire process’ of the disciplinary [action] not limited to the steps taken up to the deemed date of injury.
The [Senior Member] should have looked at the entire disciplinary process on the question of ‘reasonableness’.
The [Senior Member] should not have disregarded events post dating the deemed date of injury on the question of ‘wholly or predominantly’ the cause of the [appellant’s] injury.”[48]
[48] Appellant’s submissions, [32]–[35].
As can be seen, the appellant says that the Senior Member had to examine the entirety of the disciplinary process and not disregard events which occurred after the injury was suffered. This, it is argued, is not consistent with the authorities of Sinclair and Heggie.
The respondent relies upon its submissions in response to Ground One in resisting this appeal ground.

Consideration

As was the approach in Ground One, the appellant has not stated specifically where in the decision that the asserted error was made. In addition to asserting that the Senior Member failed to consider the “entire process”, this ground takes issue with the Senior Member’s assessment of the “reasonableness” (for s 11A purposes) of the respondent’s actions. The Senior Member dealt with the issue of reasonableness at reasons [240]–[262].
Examining these passages leads to the following observations of what the Senior Member actually did. The Senior Member started this consideration by directing herself to the remarks of Geraghty J in Irwin.[49] In the quoted passage,[50] his Honour said, “the question of reasonableness is one of fact, weighing all the relevant factors”. Later in the decision, at reasons [250], the Senior Member sets out the oft quoted passage of Sackville AJA from Heggie.[51] In particular, his Honour directs that a “broad view” is to be taken of disciplinary action and that it involves “the entire process”. There is no issue taken by the appellant on appeal that these authorities were not relevant and germane to the question under consideration.
[49] Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997, unreported.
[50] Reasons, [240].
[51] Heggie, [59].
So what was the Senior Member’s approach? The Senior Member proceeds upon an evaluation of the evidence.[52] The Senior Member firstly reaches a view about the date of injury, finding that it was 4 April 2022, which incidentally was the case pleaded by the appellant. The Senior Member then, correctly in my view, at [250] says: “As I am satisfied that the injury occurred on 4 April 2022, it is the respondent’s actions in advising the [appellant] of the further allegations against him and placing him on the NTBE list that were required to be reasonable.” The Senior Member, citing Heggie, proceeded to assess the reasonableness of the respondent’s actions. This involved an examination of the respondent’s actions, balancing its responsibility to students and the rights of the appellant. This examination took place at reasons [252]–[262], consistent with the test in Heggie, there was no error.
[52] Reasons [241].
The appellant argues that the Senior Member disregarded disciplinary steps leading up to the deemed date of injury. This submission has not been made out – the Senior Member clearly considered these at [261] and rejected them for the reasons set out therein. In any event, reading the decision as a whole,[53] it is clear that the Senior Member was satisfied of the facts which caused the injury on 4 April 2022, and was not satisfied of the involvement of matters before that date, rejecting the appellant’s arguments.[54] In many respects this finding was an acceptance of the case as pleaded by the appellant, and was also reflective of the medical opinions before the Senior Member. This was an available construction of the evidence.
[53] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430.
[54] Reasons, [241]–[248].
The appellant argues that what occurred after the deemed date of injury was also disregarded and that this was an error. The Senior Member stated at reasons [262] that these matters were not relevant to this issue of injury. I agree with this approach and it accurately reflects the state of the law as described in Heggie. In Heggie, Sackville AJA said:
“In my opinion, the better view is that the reasonableness of an employer’s action for the purposes of s 11A(1) of the [1987 Act] is to be determined by the facts that were known to the employer at the time or that could have been ascertained by reasonably diligent inquiries. The statutory language directs attention to whether the psychological injury was caused by reasonable disciplinary action taken or proposed to be taken by the employer. Ordinarily, the reasonableness of a person's actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action of any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”[55]
And:
“This does not mean that evidence of events that post-date the relevant action can never be material to the question of reasonableness. Reports prepared or correspondence created after the event may shed light on the facts known to the employer at the time the action was taken or that could have been ascertained had reasonably diligent inquiries been undertaken. But I think it is unlikely that facts or circumstances that were neither known nor ascertainable when the employer took the action could have a material bearing on the reasonableness of that action. If it were otherwise, the evidence of a witness who comes forward long after the employer has taken the action with respect to discipline could be determinative on the issue of reasonableness. This would be so even if the decision-maker could not possibly have been aware of the witness's existence and even if, on the available material, the employer had no practicable option but to initiate disciplinary action.”[56]
[55] Heggie, [61].
[56] Heggie, [64].
Indeed whilst the facts in Heggie are different, they are broadly analogous to those present in this case. For the reasons set out in Heggie, the relevant time when reasonableness is considered is the time when the action is taken. In this case, that is 4 April 2022 when the appellant was suspended and advised that he was to be placed temporarily on the NTBE list. The Senior Member was not in error. To the contrary, the Senior Member correctly applied this aspect of Heggie.

This ground is dismissed.

Errors of fact

As to Ground One

The appellant argues that he was not afforded procedural fairness by the respondent, citing a number of superior court authorities on this subject, asserting that procedural fairness was not afforded “on or up to 4/4/2022”.[57]
[57] Appellant’s submissions, [36]–[45].
The appellant specifically says the following about the disciplinary process:
“In this matter the [appellant] was not afforded procedural fairness before being stood down and placed on the Not to Be Employed List on 4/4/2022.
He was not provided with the details of the case against him or provided with the opportunity to challenge the unknown allegations as required”[58]
[58] Appellant’s submissions, [41]–[42].
The appellant also says that the disciplinary process was not reasonable as the respondent failed to provide information as to the progress of the investigation prior to 4 April 2022.
In reply, the respondent submits:
“The Appellant does not argue that specific material facts have been overlooked or given undue or too little weight by the Member in deciding the inference to be drawn from the available evidence. Nor does he seek to argue that the available inference in the opposite sense to that chosen by the Member is so preponderantly [sic] that her decision is wrong.
Rather the Appellant it appears seeks to argue that the Member should have decided the matter differently on the available facts. It is submitted that the decision cannot be interfered with just because in this appeal the President or Deputy President might think that a different outcome is preferrable. (Norbis v Norbis [1986] HCA 17 at 518–519).
Finally in this ground the Appellant seeks to argue that there was a lack of procedural fairness afforded to the Appellant by the Respondent when he was stood down and placed on the not to be employed list on 4 April 2022.”[59]
[59] Respondent’s submissions, [22]–[24].

Consideration

Before embarking upon a consideration of this ground, given the way the ground has been argued in the submissions, I will briefly state the well settled principles to be applied to appeals before the Commission. An appeal is pursued under s 352(5) of the 1998 Act. Under this provision error must established. As the provision states, an appeal is not a review or new hearing. The leading case on the operation of this section is Raulston v Toll Pty Ltd.[60] In summary, this case requires an appellant to show that the Member was wrong.
[60] [2011] NSWWCCPD 25 (Raulston), [19].
I have carefully read the appellant’s submissions in this ground. Nowhere has the appellant, in terms, identified the error that the Senior Member is said to have made. Nowhere is there any argument to show how the Senior Member was wrong in failing to find that the appellant was not afforded procedural fairness. Rather the submissions read in the manner of submissions that would usually be made at first instance. An appeal is not a review or new hearing.[61]
[61] Section 352(5) of the 1998 Act.
Having read the transcript of the proceedings before the Senior Member, the appellant did complain about delay in being provided with the details of the allegations, about being stood down, and about being reported to the Children’s Guardian and being placed on the NTBE list, which was described as “pre-emptive”.[62] The Senior Member’s ultimate finding on these issues is at reasons [261] which reads as follows:
“Having found that the injury occurred on 4 April 2022, it is unnecessary that I consider the respondent’s actions between December 2021 and April 2022. However, had it been necessary to do so, I would not have found that the time taken in investigating the first allegations, or the manner in which they were undertaken and communicated to the [appellant] was not reasonable. I refer to Ms Lord’s evidence and the respondent’s submissions, which I accept.”
[62] T 18.24–35; 21.18–21.
Reasons [261] is the terminus of the Senior Member’s reasoning process in arriving at this finding. I especially refer to the Senior Member’s evaluation of the evidence at reasons [255] to [259], in which the Senior Member considered the weight to be given to the appellant’s rights following such allegations in circumstances where the respondent’s paramount duty is to the safety of children. The Senior Member ultimately found that in weighing this up, the respondent was reasonable in its action, to remove him from teaching whilst investigations continued before the allegations were particularised for his response. The appellant has not argued, let alone shown, how the Senior Member was in error in this reasoning or conclusion. There is no submission as to why the Senior Member was, for example, wrong in accepting Ms Lord’s evidence.
Turning to the central complaint in this ground, namely that the appellant was not afforded procedural fairness, there are a number of answers to that assertion. The respondent says that this argument was not made before the Senior Member and axiomatically cannot be pursued on appeal. I have read the transcript and can see the force in this argument. No such argument was put to the Senior Member in the terms in which it is now put on appeal. The appellant submitted at first instance:
“Now, this happens and we have a deemed date of injury in April ’22 where up until that point he’s being told that it’s going to be dealt with quickly, promptly, natural justice, balancing his fairness and then not unreasonably he perceives that all of a sudden he’s - you know, judge, jury and execution he’s been guilty of allegations to the point where he’s been removed from teaching and considered such a risk that he’s got to be reported to the Children’s Guardian at a time where he hasn’t even been provided with details of what the allegations are despite asking for them, I think, within two days and certainly not provided with a response.”[63]
And:
“… it’s hardly surprising that the combination of those factors gave rise to an injury, particularly when the employer has already [taken] pre-emptive action to stand him down, put him on a not-to-be-employed list, report him to the Office of Children’s Guardian as a children’s risk …”.[64]
[63] T 18.24–35.
[64] T 21.18–21.
Even if I read the above submissions made to the Senior Member in a way which is favourable to the appellant, namely that the submissions are in effect making that submission without using the words “procedural fairness”, this allegation is still not made out. The ultimate finding at reasons [261] was, as I said above, the end point of the Senior Member’s evaluation of the process. The Senior Member was satisfied with the process and the appellant has not shown why this was wrong in the Raulston sense.
I accept the respondent’s submission that procedural fairness was not argued. It was certainly not argued in the manner in which it has been put on appeal. It is not an error to fail to deal with a submission that was not made.[65] Even if I am wrong on this matter and the point was raised, as I have suggested above by reading the submissions in a way which is beneficial to the appellant, the appellant has not shown how the respondent failed to afford procedural fairness to the appellant and how the Senior Member was wrong in not so finding. Ms Lord gave evidence about the process, which evidence was accepted by the Senior Member. On appeal, the appellant was bound to show why the Senior Member was wrong in accepting that evidence. This has not been done.
[65] Brambles Industries Limited v Bell [2010] NSWCA 162, [30].
As a result, error has not been established. This Ground is dismissed.

As to Ground Two

The appellant alleges that the Senior Member made errors of fact in failing to consider facts and evidence beyond 4 April 2022, or the actions beyond the remit of discipline which he says were causative of injury, including accusations by students, being unable to defend himself, and being the “victim of false declarations”.[66] The appellant submits that “when it comes to [the] cause of injury the [Senior Member] should consider the full evidence and facts that relate to that question.”[67]
[66] Appellant’s submissions, [42].
[67] Appellant’s submissions, [50].
The appellant relies on the list of “stressors” outlined by Mr Huxter in his report of 27 October 2022.[68] They are:
“·     being removed from classes and placed on the ‘not to be employed list’ on the 4/4/2022 where [the appellant] felt he had not received adequate information or was given any reason for the timing,
·       not being given detailed information about the accusations and an opportunity to respond in a timely and realistic manner,
·       uncertainty about any new allegations from a school where he had not been working for 4–5 months,
·       perceptions of being socially ostracised and defamed,
·       perceiving a loss of reputation as a decent and ethical community member and professional,
·       perceiving harassment in public places such as supermarkets and
·       worrying about employment and the capacity to pay for basic living expenses.”
[68] ARD, p 7; appellant’s submissions, [44].
I would also remark that Mr Huxter said in the paragraph appearing immediately after this list of stressors: “In my opinion, the above stressors have arisen in the workplace and in relationship to the workplace.”[69]
[69] ARD, p 7.
The appellant states that there were multiple causes of injury, and only two of the stressors in Mr Huxter’s list relate to unreasonable actions by the respondent, namely removing him from class and placing him on the NTBE list, and not being given detailed information about the accusations for him to respond to. I assume that the thrust of the appellant’s submission is that the other stressors in that list were not taken into account by the Senior Member and this was the error of fact asserted in this ground.
In reply, the respondent states that “the Appellant again seeks to argue that the Senior Member failed to consider the causes of injury beyond the deemed date of 4 April 2022.”[70] The respondent relies upon its earlier submissions on this same question. The respondent relies upon the concession made by the appellant at the hearing as to the real issues in the case and further relies upon the Senior Member’s findings at [261]–[262] that the injury occurred on 4 April 2022 and it was thus unnecessary to consider the events either prior to or post 4 April 2022.
[70] Respondent’s submissions, [27].

Consideration

At reasons [234]–[237] the Senior Member was considering whether or not various events were related to the appellant’s injury. I set these paragraphs out in full:
“234. I do not accept the [appellant’s] apparent submission that the injury was not wholly or predominantly caused by the respondent’s actions, because of the actions by students, staff, and the wider community, and what may be termed ‘shunning’.
235. As the respondent submitted, there is no evidence as to when these interactions took place, or with whom. The [appellant] stated on 18 May 2022 that he ‘recently’ had a student filming him, which suggested that it was after 4 April 2022, the date of the injury. That is consistent with Dr Griffiths having recorded this incident on 12 May 2022. Dr Griffiths recorded on 21 April 2022 that the [appellant] was ‘upset’ at the supermarket. That is also consistent with these events post-dating 4 April 2022.
236. Mr Huxter reported that the [appellant] was relatively anxiety and stress free in February 2022, and in fact did not require any more treatment. The [appellant] submitted that he was not suffering from this injury on 16 February 2022, referring to Mr Huxter’s evidence. I agree.
237. The timing of the ‘shunning’ is also supported by the history Mr Huxter recorded at his consultation with the [appellant] in August 2022. The [appellant] said he had been removed from the school without clear information. He had been socially ostracised and shamed, laughed at and videoed by students. The context is that this took place after he was removed from his position, which was in April 2022.”
As can be seen, apart from the last dot point in Mr Huxter’s list, the matters under consideration by the Senior Member are the same. In terms of the last dot point, the only submission put to the Senior Member which comes close to this point is at T 20.22 where the appellant refers to “financial pressures”. But the submission was not put in the way it now is, rather it read as merely a statement which did not require the Senior Member to consider or deal with it. I therefore do not need to be concerned with any omission in dealing with that discrete issue. Having considered these matters, the Senior Member accepted Dr Young’s opinion, an opinion actively embraced by the appellant, in deciding the cause of the appellant’s injury.[71] Having made this finding, which dismissed any events post 4 April 2022 as being causative of injury, the Senior Member then proceeded to decide the balance of the matter consistent with that finding. Again, the findings at reasons [261]–[262] relied upon by the respondent reveal consideration by the Senior Member of events post 4 April 2022.
[71] Reasons, [239].
The submission that the Senior Member failed to consider the events said to have occurred after 4 April 2022 as causes of injury cannot be substantiated. In the passages I have extracted and referred to above, it is clear that the Senior Member examined those matters before deciding that such events were not relevant. The Senior Member did this by accepting Dr Young’s opinion in the knowledge of the appellant’s acceptance of that expert opinion. It is not appropriate on appeal to invite an approach contrary to that concession.
The appellant has failed to prove why the Senior Member was in error in terms of failing to consider events (or “stressors”) post 4 April 2022. The Senior Member clearly considered them and rejected their relevance for the reasons set out in the decision. The allegation that they were not considered is incorrect.
No error on the part of the Senior Member has been established. This ground is dismissed.

DECISION

The Certificate of Determination dated 17 April 2023 is confirmed.

Judge Phillips
PRESIDENT

15 February 2024