BHK v Secretary, Department of Education

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	BHK v Secretary, Department of Education [2023] NSWPIC 166
APPLICANT:	BHK
RESPONDENT:	Secretary, Department of Education
SENIOR Member:	Kerry Haddock
DATE OF DECISION:	17 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly benefits and medical expenses for psychological injury; respondent conceded injury and incapacity for work; defence pursuant to section 11A; discipline and dismissal relied on; applicant is a teacher, placed on Not To Be Employed list while allegations of inappropriate interaction with students investigated; consideration of Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd, Kooragang Cement Pty Ltd v Bates, Irwin v Director-General of Education and Northern NSW Local Health Network v Heggie; Held – award for the respondent.
determinations made:	1. There is an award for the respondent.

STATEMENT OF REASONS

BACKGROUND

The applicant, BHK, is employed by the respondent, Secretary, Department of Education (the Department), as a teacher.
BHK has sustained an accepted psychological injury, claimed to have occurred on the deemed date of 4 April 2022, arising out of or in the course of his employment with the respondent.
By letter dated 13 April 2022, the applicant’s solicitors made on his behalf a claim for injury sustained on 4 April 2022. The applicant claimed to have suffered stress, anxiety and depression, due to unfair treatment by the respondent.
The applicant claimed weekly benefits from 3 April 2022 to date and continuing; and s 60 (of the Workers Compensation Act 1987 (the 1987 Act) expenses.
On 17 May 2022, the respondent’s insurer, Allianz Australia Insurance (Allianz) issued BHK with a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
Allianz disputed that the applicant was entitled to compensation because his psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with [respect to] transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers, or provision of employment benefits to workers under s 11A of the 1987 Act.
Allianz disputed that the applicant was entitled to weekly payments and medical or related treatment for his injury.
The applicant’s solicitor submitted an application for review of the decision dated
23 May 2022.
Allianz issued a review notice dated 23 November 2022, in which it stated that it confirmed its original decision and the matters in dispute. Despite this, the notice stated that it “maintain[ed]” that the applicant’s injury was wholly or predominantly caused by the respondent’s reasonable action taken or proposed to be taken with respect to discipline and/or dismissal.
The applicant lodged an Application to Resolve a Dispute (the Application) on
29 November 2022. He claimed to have sustained a disease, deemed to have occurred on
4 April 2022, due to bullying and harassment, interpersonnel (sic) differences and unfair treatment by the respondent.
The applicant claimed weekly compensation from 3 April 2022 to date and continuing.
The respondent lodged its Reply on 20 December 2022.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) whether the respondent has a defence to the claim pursuant to s 11A of the 1987 Act.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (THE COMMISSION)

The matter was listed for preliminary conference before me on 19 January 2023. Mr Collins appeared for the applicant, who was present. Ms Gallagher appeared for the respondent.
Ms Zreika of Allianz also attended.
Mr Collins confirmed that the deemed date of injury was 4 April 2022, which was the last date on which the applicant worked, and the claim for weekly benefits commenced on that date.
Ms Gallagher confirmed that the respondent did not dispute that the applicant had sustained a psychological injury. It relied on a defence pursuant to s 11A of the 1987 Act, specifically its actions with respect to discipline and dismissal.
The matter was listed for conciliation/arbitration hearing on 17 March 2023, by the Teams platform.
Mr Collins appeared for the applicant, who was present. Mr Grant of counsel, instructed by Ms Gallagher, appeared for the respondent. Ms Zreika attended but was excused from attending the hearing. She was available to provide instructions if required.
The Application was amended by consent to claim a general order for medical expenses.
The respondent conceded that the applicant had no capacity for work.
The parties agreed that the applicant’s pre-injury average weekly earnings were $1,495.03 per week.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application and attached documents;
(b)    Reply and attached documents, and
(c)    Application to Admit Late Documents dated 14 March 2023 and attached documents, lodged by the respondent.

FINDINGS AND REASONS

Evidence of the applicant, BHK

BHK’s statement is dated 18 May 2022.
In 2020, he began teaching at the Kadina High Campus of the Rivers Secondary College, Lismore. He taught there for two years, comprising two back-to-back temporary contracts.
In 2022, he began teaching as a casual teacher at the Lismore High Campus of the Rivers Secondary College.
Towards the end of his work at Kadina High Campus, in early December 2021, he was told by the new principal, who had been there one month, that a complaint had been handed to PES (Professional and Ethical Standards), about something he had said at work. He was informed that an investigation was taking place.
He continued his duties until the end of the year. He was not given any information of the specifics of the complaint, including who or what it pertained to, only that “they” alleged he had made a statement sexualising a student. This made him very anxious, as he found it difficult to be accused of something he had no knowledge of and about which he was being kept in the dark.
He strongly rejected any accusations that he sexualised a student, or ever had any improper dealings with any female student.
After teaching for almost the entire first term at Lismore High Campus in 2022, he was informed by his new principal that a further complaint had been made from Kadina High Campus and he was banned from teaching until the investigation was complete. This shattered his confidence in his ability to work at all.
He was already struggling, as he was hearing how all the students were talking about the situation, and the students involved were telling other students about the accusations, and that they were trying to get him fired.
The three campuses, Kadina High Campus, Lismore High Campus, and Richmond River High, are closely linked, as are the students. When floods decimated the town, two campuses were collapsed into one school. This meant he was regularly exposed to students from Kadina High Campus who travelled to Lismore High Campus/Richmond River High.
The accusations sickened him to his stomach. He had been given no specific details, yet the students had been free to discuss [them] and discredit him. He found it impossible to sleep, eat, or do the simplest everyday tasks, like shopping, for fear he would run into these students. This had happened on numerous occasions. He felt that everyone was watching and talking about him when he ventured out.
He recently had a student filming him whilst he was shopping. As he had been directed not to approach or have any contact with these students, he tried to stay calm and ignore the filming. It was extremely embarrassing, and he felt everyone was watching him even when he was shopping, further eroding his confidence to do regular tasks.
His partner was also a teacher at Kadina High School and lived across the road from students. They had constantly fed information to other students about their personal life. After he began working at Lismore High Campus, they constantly approached her, asking inappropriate questions about her personal life and what was going on with him and the enquiry.
This made his partner very uncomfortable and anxious. She had done her best to ignore this constant badgering, but on at least two occasions in term one she had to have formal discussions with both her head teachers and these students.
His reputation as a teacher had been ruined. He was not fit for teaching due to the way the Department had gone about the enquiry. His confidence had been eroded by having accusations levelled at him for nearly seven months, and he still had not been told what he was accused of. The Department had taken no steps to either protect his reputation or give him a chance to respond to the alleged comments it is claimed he made.
He had lost five weeks from work, with no income. Prior to the Department’s decision to stop him from working, he was working every day as a casual teacher. He had been to his doctor several times. On his last visit, she deemed it necessary for him to go on medication for depression. Due to the flooding situation, he had not been able to secure an appointment with a psychologist.
He had raised three children, the eldest two being girls, and the thought of this type of allegation sickened him greatly. He was raising three children with his partner, who lived with several conditions, as did their youngest child.
With his mental health as it was, the family was under extreme pressure, and no one was coping at all. The social stigma that came with this type of allegation in a small community was horrible. He felt hopelessly unsupported by the Department, and the unreasonable situation it had put him and his entire family in.

Evidence of Christine Lord

Ms Lord is an investigator in the PES Directorate of the Department of Education. Her statement is dated 14 March 2023. It is unsigned, but I was advised at the conciliation/arbitration hearing that the respondent had provided the applicant with a signed copy.
The statement has several annexures. I have summarised them at appropriate points in the statement. It also attaches a copy of a bulletin (the bulletin), headed “Investigations – Advice for employees under investigation”, which includes advice as to the stages of the investigation, how an employee may respond, availability of support, possible outcomes, and how to make a complaint about the way a matter was being investigated.
Ms Lord stated: on 29 October 2021, Ms Tracey McGrath, relieving principal of Rivers Secondary College, Kadina campus (RSCK) contacted the PES Preliminary Intake Team (PESPIT) to report the applicant’s alleged inappropriate interaction with students, including female students.
On 1 November 2021, the Department’s Feedback and Complaints Unit forwarded PES a complaint from an RSCK female student. She alleged that inappropriate comments of a sexualised nature were made by BHK to female students.
PESPIT made enquiries with Ms McGrath, seeking initial staff and student statements where applicable.
On 18 November 2021, PESPIT finalised its initial review of concerns identified, and preliminary documentation received, assessing a PES investigation and Office of Children’s Guardian (OCG) report were warranted.
On 25 November 2021, she contacted Ms McGrath to discuss initial risk mitigation.
Ms McGrath informed her that Mr James Witchard was the incoming principal for RSCK. It was recommended that a mandatory report be made regarding the child protection concerns raised in the allegations.
On 7 December 2021, she completed an Investigation Plan and Risk Assessment, which were signed off by Ms Sarah Parry, Director, Child Protection Investigations.
On 8 December 2021, she contacted the Department’s Child Wellbeing Unit, which confirmed it assessed that the details provided by Ms McGrath and Mr Witchard required “case discussion”. It did not recommend a Risk of Significant Harm (ROSH) report. The Department of Communities and Justice and NSW Police were not involved. The PES investigation was clear to proceed.
On 8 December 2021, in accordance with PES investigation processes, she discussed with Mr Witchard the delivery of the letter of investigation notification to the applicant. She sent an email to Mr Witchard, copied to Ms Trisha Parker, Director of Educational Leadership, confirming the recommended delivery procedures.

The email to Mr Witchard

The email provided step-by-step procedures, including that the applicant was to be contacted by telephone, advised that Mr Witchard needed to speak to him about a confidential matter, and may have a support person. Mr Witchard was advised that he may need to arrange another date/time if the applicant requested a support person.
Ms Lord’s email then set out what Mr Witchard was to do during the phone meeting, including forwarding the letter from PES, and that he was to confirm by return email to her the date and time the letter was delivered.
Mr Witchard was reminded that the letter could not be delivered on a Friday, and the moratorium agreement period for any correspondence required that it be provided to BHK prior to 10 December 2021.
The email included instructions for what was to occur if a face-to-face meeting could be organised. After any such meeting, Mr Witchard was to confirm the date and time of the delivery of the letter and that it was provided in a confidential manner.
Ms Lord was to be Mr Witchard’s key contact regarding the investigation, and she advised he could seek an update from her at any time, and she would update him at least once each term. She provided him with a link to a bulletin designed to assist in understanding the process and managing matters during an ongoing investigation.
The letter of notification, dated 8 December 2021, referred to the support available to the applicant, including her contact details. It provided a high-level outline of the allegations as relating to “communication with students of an inappropriate and sexual nature, including but not limited to making sexualised comments about and to female students”.

Letter of notification dated 8 December 2021

In addition to the outline of the allegations, the letter advised the applicant that no decision about the truth or accuracy of the allegations had been reached. However, to manage risk, several directions were made.
The directions included that BHK was not to discuss the matter, except with his nominated support person, union, or legal representative; maintain appropriate professional boundaries with students and ensure his communication with them was appropriate, respectful, and professional; not to engage students in conversation about sexual or highly personal matters without a legitimate work-related purpose and with prior agreement of the principal; ensure any contact and communication with students was undertaken in a safe and non-threatening manner; and not undertake any out of hours school activity with students without the prior approval of the principal.
The applicant was counselled that any further alleged conduct of this type, or failure to comply with these directions, or the directions already issued by PES correspondence dated 8 December 2020 could result in additional action against him. The reference to a letter dated 8 December 2020 can only have been an error.
The letter advised the applicant that he or his representative could speak to Ms Lord for further information about the process or progress of the investigation. He would be given the opportunity to make a submission should allegations be put to him, but he may provide
Ms Lord with information within seven days. That could include his version of events and the details of any witnesses to whom he believed she should speak.
The applicant was advised of support available to him and Ms Lord’s contact details.
Ms Lord’s statement continued: On 9 December 2021, she received an email from
Mr Witchard, confirming that he had delivered the letter of notification to BHK, who was “upset that I was unable to discuss the allegation in any detail”. Both he and the applicant’s support person encouraged BHK to contact her for more information. The applicant had requested that he email the number for EAP (Employee Assistance Program) and he would “do so now”.
On 9 December 2021, she received a call from a male identifying himself as BHK. He introduced his support person as Ms Jayne Newby, and the call took place on speaker, so Ms Newby was able to assist.
She made contemporaneous notes of the discussion. The notes are attached and are extensive.
She explained the investigation process, the next steps, what supports were available, and why the full nature of the allegations could not be provided at that time. Only sufficient details of the nature or category of the allegations could be provided, due to the child protection nature of the concerns raised; and further enquiries were needed to identify as many particulars as possible.
The applicant and Ms Newby asked whether he could lose his job. She informed them that PES could instigate a NTBE (not to be employed) or alternative duties process. Based upon the available information, there were no immediate concerns that would warrant that course. As and when additional information and/or allegations were received, the risk was re-assessed, and appropriate action taken.
On 10 December 2021, the moratorium began. This was to end on 10 January 2022, as agreed between the PES Executive Director and the NSW Teachers Federation. The applicant was informed of this during their call on 9 December 2021.
From 10 December 2021, she began organising and conducting interviews. Where possible, they were conducted over the Christmas period. Sixteen interviews were conducted between 16 December 2021 and November 2022, including four staff nominated by the applicant. At least six additional RSCK students and/or families were approached, and either declined to be interviewed, or did not engage at all.
On 3 December 2021, Mr Witchard forwarded to PES anonymously reported information that the applicant had made inappropriate comments of a sexualised nature, to and in the presence of RSCK students. The information was that he had made comments about a student masturbating, which made students feel uncomfortable. Mr Witchard reported it to the Child Wellbeing Unit, where it was assessed as not requiring a formal ROSH report.
The interview with the primary stakeholder was conducted on 24 February 2022, and the transcript made available for checking on 7 March 2022.
The applicant’s temporary employment with RSCK had been finalised at the end of 2021. He entered a day-to-day casual arrangement with Mr Kirt Swanbury, principal, Rivers Secondary College Lismore Campus (RSCL).
On 23 February 2022, Mr Swanbury reported to PES that one or more female staff had expressed concerns that the applicant referred to them by names such as “darling”, rather than their names; and he had seen the applicant exiting an amenity block designated for use only by transexual and senior female students.
Mr Swanbury raised these concerns with the applicant on 24 February 2022. He responded that referring to staff as “darling” was just a reflection of how he was raised. He was reminded that it was not appropriate. He was not aware of the designation of the amenity block and really needed to use the bathroom at the time.

Evidence collated from interviews/discussions with stakeholders, and the applicant’s altered employment status to day-to-day casual engagement was assessed considering ongoing risk.
Between February 2022 and early April 2022, numerous communities were affected by floods. The Lismore district was particularly hard hit in February. The area was flooded again in late March 2022.
On 9 March 2022, she noted that RSCL was closed due to the flood. She recommended follow up with Mr Swanbury as to the applicant’s ongoing engagement, and if he was aware of the flood impact upon the applicant and support network availability. An update was received from Mr Swanbury on or about 25 March 2022.
On 29 March 2022, Mr Currie (Darryl Currie, Executive Director PES) signed the NTBE placement letter advising the applicant of temporary withdrawal of his permission to work in any NSW Department of Education school or facility. It included that “further allegations about your conduct have now been referred to PES. The information relates to seriously improper and sexualised comments to a student”.

Letter from Mr Currie to the applicant dated 29 March 2022

In addition to the above, the letter advised the applicant that “this is a serious matter”. His name would be temporarily placed on the list of people not to be employed in any capacity. It was a confidential database, and his name would be flagged as not to be employed and ineligible for any paid or voluntary employment.
The applicant did not have to respond at that time. He would be advised of the allegations in writing and given the opportunity to respond. He was referred to the respondent’s website for some general advice. The restrictions of which he was advised on 9 December 2021 remained in place.
The applicant was provided with advice about assistance available to him.
Ms Lord’s statement continued: On 4 April 2022, Mr Swanbury advised that the applicant was at RSCL, and arrangements were made to deliver the NTBE notification.

Email from Ms Lord to Mr Swanbury dated 4 April 2022

Ms Lord asked Mr Swanbury to have the letter issued to the applicant as soon as he was ready to receive it. It was important that he have the opportunity for a support person. If that meant a delay in delivering the letter, that could be accommodated. There were occasions where a person wished to proceed without a support person so as not to delay the process.
It was important to follow up with BHK as to his welfare/wellbeing. She asked that
Mr Swanbury let her know how the delivery went. Her contact details were again included in the letter if the applicant wished to contact her.
Ms Lord’s statement continued: The applicant contacted her on 4 April 2022 to discuss the NTBE notification. She has attached detailed notes of the conversation.

Conversation between Ms Lord and the applicant on 4 April 2022

The applicant was “shell shocked” to find he had more allegations against him when he did not even know what the original ones were, and he was now out of a job.
Ms Lord acknowledged it would be difficult to receive the letter. She reiterated that the letter of notification issued just before Christmas outlined the concerns. The further allegations also referred to an incident of a sexualised nature in front of students.
The applicant’s partner had been approached by a student (who is named, and to whom I will refer as SF) who asked if “sir was OK?” The student “spilled his guts” to the principal and said he was the boyfriend of a girl who was a friend of the girls doing this. She did not want to come forward and SF had said she should as it was wrong what “sir” was going through. The girls should be told to stop their lies. They were running around the school saying they got him fired.
The applicant said “these girls … have a bee in their bonnet – it’s supposed to be about something inappropriate and sexual – but who bloody knows? – I don’t”. Here was this student from Kadina High who said it was a witch hunt, and nobody had spoken to him. “Why haven’t you spoken to him?”
Ms Lord indicated that there may be one or more people who bring forward concerns. They are examined and where possible staff/students/other relevant parties are contacted. Evidence is gathered. Because they were dealing with students under 18, parental approval was required. In some cases, the kids prefer not to be part of the process. They could not make people talk to them. A number of stakeholders had been approached. The applicant cut her off.
The applicant said that all the good parents who did not want their kids spoken to will say no, and she was left with “the ones that have got it in for me”. Ms Lord said she could not say who she had approached, and he would be advised to assume it was not anyone in particular.
The applicant said there was no work in the area, and asked how long he was expected to be without a job? This was not a reasonable or fair process. He did not even know what he was supposed to have done. Ms Lord had said before Christmas that sometimes these things fell over without evidence, and she would let him know. He did not hear anything on 10 January 2022, so he thought all was good – “now this”.
Ms Lord reiterated what she had said about the investigation, that 10 January 2022 was the first week she would be able to contact him after the moratorium, but she would make every endeavour to make enquiries during the holidays.
Additional allegations had been raised, and as was the normal process, risk was re-assessed looking at all stakeholders, and most importantly the kids – their safety and welfare and making sure the allegations did not re-occur.
Ms Lord was unable to say how long the enquiries would take. She was waiting re-engagement with a couple of families affected by the floods. If the applicant had any names or information he believed she should address, he could provide them, and she would assess.
Ms Lord advised that once the evidence was gathered, a full breakdown of the allegations would be issued, with as much identifying information as possible, so the applicant had the best possible way of responding IF HE CHOOSES TO DO SO (capitalisation in original). Then it went to the report writing stage and a decision maker reviewed and made a determination. This could be a lengthy process. She wished she could provide a timeline, but it was not something she could do.
The applicant said he heard or noted that, but Ms Lord must realise his livelihood had been taken away and he was not even aware why. The allegations were from a group of girls (whose first names were provided), and his partner was trying to teach them. One of them, instead of working, was colouring in her cuts because she self-harmed. She/they belonged to some religious group, which was why they had it in for him.
SF had said they were doing this because “sir” would not let them get away with stuff like the other teachers did. They had problems with his science teaching because of their beliefs, “Jehovah Witness or something”.
The applicant said it was all too much and he was just unable to take it all in. He wanted to talk to Ms Lord tomorrow. She said that was OK, thanked him and hung up.

Email to the applicant from Ms Parry

On 22 April 2022, Ms Parry referred to the applicant’s email to Mr Currie dated 11 April 2022, which is not in evidence. Mr Currie was the independent decision maker, so it was not appropriate that he respond.
Ms Parry assured the applicant that the requirement of confidentiality was canvassed with all parties interviewed. All witnesses were advised not to discuss the matter except for the purposes of the investigation, obtaining legal advice and/or in relation to their health and support needs.
Ms Lord had discussed with the applicant that he may nominate witnesses. In consultation with Ms Parry, she would determine how the matter proceeded.
There were circumstances in which not all nominated witnesses were able to be interviewed. They included where there was information that approaching a witness may adversely impact their welfare; where permission from a parent of a child witness could not be obtained; and where sufficient witnesses had been approached to provide a balanced account of the matters being investigated.
Every endeavour was made to gather pertinent information in a judicious manner. Every attempt was made to liaise with parties and organise timely interviews. This would be impacted by staffing/support person availability.
Where possible, she and Ms Lord had undertaken interviews during school holidays. Several identified parties had been unable to participate in recent weeks due to the impact of floods in the Lismore/Northern NSW districts.
Ms Lord would forward “fulsome” (sic) allegations to the applicant once she had obtained and considered all available evidence.
If the applicant wished to have the decision to temporarily place him on the NTBE list reviewed, Mr Currie would be in a position to do so, and information could be submitted to him.
Ms Lord’s statement continued: The applicant’s concerns about confidentiality had been discussed with him on one or more occasions, including during her call on 9 December 2021 and in Ms Parry’s email dated 22 April 2022. During all interviews, the requirement of maintaining confidentiality was canvassed. This was acknowledged during the introduction and at the finalisation of the interview. Exceptions may arise if stakeholders discuss their participation with their support person, legal representative and/or healthcare provider.
It was recommended that any stakeholder refer to the Department’s intranet “advice” bulletins, each of which addressed the requirement to maintain confidentiality. Principals/school executives were expected to manage school/student confidentiality as best as possible, given they were “on the ground” with the students daily.
The paramount consideration when responding to allegations against employees involving any child protection issue is the safety, welfare, and wellbeing of children. This is applicable to any decision and/or action taken with respect to a Departmental employee (s 5A Teaching Service Act 1980).
Risk management/mitigation is considered for each matter on its own circumstances/merits and in consideration of:
·        students/children – whether there are specific vulnerabilities;
·        potential witnesses – whether working with employee directly/indirectly, potential vulnerabilities;
·        the employee – employment status, wellbeing, directions issued;
·        the investigation – number of witnesses, confidentiality and impact on cogent, unbiased evidence, destruction of any evidence, and
·        the Department – media, industrial relations.
Risk management and mitigation is ongoing and updated throughout the investigation. Where any information/evidence gathering indicates a change of risk to the above factors, action is taken to mitigate the concerns.

Allegations against the applicant

Ms Lord’s letter to the applicant is dated September 2022 (she stated that it was dated 13 September 2022). It invited him to respond, and provided information as to how he may do so.
The allegations against the applicant at RSKC included:
(a)    During 2020/21, using derogatory and/or sexist language in the presence of and/or towards students, including words to the effect of “sweetie/sweetheart”, “darling”, “pretty little ladies”, “pretty lady”.
(b)    In 2021, making inappropriate comments in the presence of and/or towards students, including in Term 3 saying words to the effect that a year 9 student (who was named) had a “nice arse”, and all teenage girls had a “nice arse”.
(c)    Near the end of Term 4, referring to a male student (who was named) masturbating.
(d)    In Term 4, during sport, saying to a female student (who was named) words to the effect “Hey [name], you’re an Aspie girl, right?”
(e)    In a Year 7 drama class, discussing non-related subjects including depression and suicide, and saying words to the effect that “half of you will commit suicide by the time you’re aged 30”.
(f)    During sport, when a female Year 9 student (who was named) had a “hickey” on her neck, saying words to the effect “how bad is that hickey?”; “It wasn’t a very good technique”; and “I need to bring [name of boy] into the classroom and see his technique”.
(g)    Following this, in the presence of staff, saying to two Year 9 female students (who were named), words to the effect “great, best hickey I’ve ever seen”; “how bad is that hickey?”; and “how bad was the technique?”
(h)    In 2021, during Term 4, in a Year 9 drama class, failing to provide a safe and/or inclusive learning environment when he engaged in a non-respectful discussion about the LGBTIQ (lesbian, gay, bisexual, transgender, intersex, queer/questioning) community and gender identity, when he said words to the effect “it seems very trendy for people using different pronouns, just being part of LGBT community”; “it’s predominantly white people that are doing these things and not people of colour”; and “gender is a word derived from ‘genitalia’, so actually it’s based on what you have down there, is what your gender is”.
(i)    Developing a personal relationship with a Year 9 male student (who was named). During 2021, removing the student from his English class, taking him to the maths staffroom, closing the door and saying words to the effect “This is to be a closed-door conversation”; and “nothing leaves this room”; and discussing his personal home life, including his partner and children.
(j)    During this conversation, describing a female student (whose first name was given) as “really angry and oppositional”, and saying a male student (whose first name was given) giving his girlfriend a “hickey” was “the most work he has ever done”.
(k)    Developing a personal relationship with Year 9 student SF, in that on one or more occasions he gave him money to spend at school, including for food and a bandanna on Bandanna Day.
(l)    Discussing with SF his personal life, including his children and family breakdown experiences.
(m)     On or about 16 November 2021, acting in an unprofessional and/or harassing manner when he questioned Ms Catherine Murphy about a child protection report involving comments he made about a female Year 9 student (who was named).
The letter included “next steps”, reminded the applicant about the directions previously made to him, and provided information about support.

Ms Lord’s letter to the applicant dated 17 January 2023

Ms Lord’s second letter is undated, (she stated that it was dated 17 January 2023). It is addressed to the applicant, care of his solicitor.
The letter referred to Ms Lord’s letter dated 13 September 2022 and the applicant’s written response dated 26 October 2022, which is not in evidence.
Ms Lord advised that review of the applicant’s response and investigation material had resulted in an additional allegation being identified. He was invited to respond.
The allegation was that by engaging in one or more of the conducts alleged in the letter dated 13 September 2022, the applicant had failed to comply with directions issued by
Ms Amanda Fiennes, Director Child Protection Investigations, dated 8 December 2020 (again, this must be an error) which include “Be professional, courteous, and respectful in all future interactions with students and parents …”

Medical evidence

The Lismore Clinic

On 8 April 2022, Dr Verity Griffiths recorded that the applicant was seen for depression and distress following a workplace accusation. He was struggling to sleep and go out and was tearful. He saw no future for himself.
The applicant was to see a psychologist and stay off work, to be reviewed in two weeks.
On the same day, Dr Griffiths referred the applicant to Mr Brendan Mooney.
Dr Griffiths advised Mr Mooney that the applicant had been accused by a student of inappropriate comments in the classroom, and as a result was under investigation.
The applicant had insomnia, tearfulness, rumination over events, and was unable to concentrate on anything else. He found it difficult to leave the house and was paranoid about what others were thinking of him.
The applicant’s mental health had been stable recently, and he had been coping well both at home and at work. This event had had a significant impact on his mental health.
On 21 April 2022, Dr Griffiths recorded that the applicant remained distressed. He was focussed on work issues. He was upset at the supermarket, as one of his accusers worked there. He found it hard to go out, as he felt the community was talking about him.
On 12 May 2022, Dr Griffiths recorded that the applicant was struggling to leave the house. He found selfcare difficult.
The applicant had gone by ambulance to the emergency department with chest pain a week ago. He spent eight hours there and was diagnosed with stress. He went to Byron Hospital. He thought this was triggered by talking to Allianz on the phone.
The applicant had been filmed by a student at “Woolies”. He was very upset and went straight home. His sleep was poor, and he was sleeping during the day to catch up.
“Digger” was still at home. His girlfriend went to the school. The applicant’s mental health was impacted.
On the same day, Dr Griffiths referred the applicant to Dr Brad Ward.

Dr Brian Potter – psychiatrist

Dr Potter was qualified by the applicant and reported on 19 August 2022.
Dr Potter had difficulty obtaining a history, as the applicant began to cry, explaining “Lost, trying to speak. Have been accused. Horrendous”. He felt “sensitive. Emotional” and gave the timeframe of the last couple of years in a school with “damaged kids”.
The applicant continued in a disjointed manner, consistent with anxiety and stress. He gave the date of the accusation against him as December 2021. “They said” they could not tell him what the accusation was.
The applicant said students in his new school did not like him and bragged they were going to get rid of him. One of the female students was cutting herself. “The girls” filmed him at the shops. The Department had directed “no contact with the teacher”.
Following another allegation, he was informed by the principal that he would be put on the NTBE list, and the police would be involved. He had a daughter and a teenage son whose girlfriend was at the school, Dr Potter noting that “the web of relationships and intrigue continued to grow”.
Dr Potter recorded that, as if wishing to end his distress, which was reflected in the anxious manner in which he gave his history, the applicant said he was unable to work as he “couldn’t stand up in front of the students”. He became upset at this stage.
The applicant had consulted his general practitioner (GP) “straight away”. He continued with weekly sessions. He had been prescribed antidepressant medication. He described a referral to a psychologist in the context of trying to find one that was available. The psychologist’s room was “under in the flood”.
The applicant was not sure when he ceased work, but given the history Dr Potter had obtained, he assumed it was at the end of Term 1 in 2022.
Dr Potter recorded that the applicant continued to give information in an unclear and confused manner. He described a partner separation.
The applicant did not want to go shopping. He and his partner shared the cleaning. She could not cook due to difficulty with the smells. He struggled with the cooking. He could drive “only lately”, and “sort of” took care of himself. He drank four to six cans of cider, “before and not now”. He became upset when giving this history, consistent with shame.
The applicant described his mood as “worthless”. He nodded when asked about suicidal ideation, engaging with further enquiry reluctantly. He felt “belittled”, and that the community was destroying him “for the fun of it”. He did not talk to anyone about his thoughts and feelings.
The applicant had difficulty sleeping, and responded “starve” when asked about appetite, adding that his weight had increased 5kg to 10kg. He had no exercise, other than walking his dogs. One friend “push[ed]” him to be active/engaged. There were lots of friends he did not speak to as “too embarrassed”.

Dr Potter reported that the applicant engaged in an emotionally expressive manner, with a background level of emotion that made it difficult to attach emotions to what was being said. His affect dominated his presentation. He gave the impression of a man overwhelmed and drowning.
The applicant described having been diagnosed with “depression before”. He had taken Luvox, which he felt helped, and had stopped taking it. He described unclearly “bouts of general anxiety”. He had been given an “SSRI” for a “short period”, which “really worked”.
Dr Potter opined that the applicant gave a confused history with a poverty of information. It was possible this was an expression of anxiety, but it was necessary to be reassured that his local doctor had provided a full assessment for any underlying metabolic disturbance.
Although the applicant presented with some features of possible anxiety, he did not demonstrate the depth and breadth of signs and symptoms required for a formal psychiatric diagnosis. It would be reasonable to accept a diagnosis of adjustment disorder at the time he left work and heading up to that time.
Dr Potter noted that, within the GP’s notes, there was a complex plethora of diagnoses and medications, adding to the difficulty in providing an informed diagnosis, especially in a one-off medico-legal assessment where accusations of sexual impropriety had been made about the applicant.
The applicant would be wise to maintain regular review by his GP and hopefully engage with a psychologist. From a medico-legal perspective, it would also be wise to postpone a definitive report until the suggested extra assessment and history were available, or there was an extended assessment period to clarify the applicant’s history and functioning, overshadowed at the assessment by his distress.
Dr Potter reported that it was not possible to offer an informed comment about the applicant’s condition, “let alone the relationship between any condition and the issue of any injury”. His distress, with its significant impact on his life and relationships, was clinically due to the school experience.
Dr Potter appreciated the lack of satisfaction from the assessment, and advised he would be pleased to evaluate or comment on any further history or material the applicant’s solicitor may have or receive.

Mr Mal Huxter – clinical psychologist

Mr Huxter reported to the applicant’s solicitors on 27 October 2022.
The applicant first consulted Mr Huxter on 5 December 2019. BHK had referred himself, in the context of a relationship breakdown with his wife. He wanted to explore “control issues” and “be happier with myself, family and friends”. He had seen a relationship counsellor to “work on himself”. He said he had seen counsellors and possibly mental health professionals in the past, mostly in relation to marital issues.
Later that month, the applicant was referred by Dr Griffiths under a GP Mental Health Care Plan, to address anxiety in relation to the difficult marital situation.
Mr Huxter’s assessment was that the applicant was experiencing some relationship uncertainties and generalised anxiety, with the tendency to overthink and worry too much.
The applicant continued to consult Mr Huxter on an infrequent basis, addressing his stress and anxiety, throughout 2020 and 2021. He generally made progress and was diligent at addressing his issues. During this period, he separated from his wife, was single for a while, and established a relationship with another woman.
By late 2021, Mr Huxter was preparing to discharge the applicant, as the acute nature of his stress and anxiety was resolved. He agreed, at the applicant’s request, to see him for one or two more sessions, with gaps of three or four months, to check in, consolidate, and reinforce positive gains.
When Mr Huxter consulted with the applicant on 16 February 2022, he continued to be relatively anxiety and stress free, and he opined that BHK did not need any more treatment. He said Kadina High School had not renewed his contract and he was seeking work in other schools. After that appointment, health services were disrupted by the floods.
Mr Huxter went on leave for four months and did not hear from the applicant until he returned in August.
The next time the applicant consulted Mr Huxter was on 9 August 2022. He presented as severely stressed, anxious, and depressed, so much so that he was unable to complete psychometric mental state measures. He said he was not sleeping well, often crying throughout the day, and self-medicating with cigarettes and alcohol. He expressed worthlessness, hopelessness, and helplessness. Over subsequent sessions, he expressed a deterioration in confidence, disempowerment, low self-esteem, and despair about his career and profession.
The applicant spoke about being deemed unemployable by the Department due to accusations under investigation. He said that in November 2021 he received notification of a complaint. In December 2021, he received a letter stating that the complaint was about allegedly sexually inappropriate language. He telephoned the investigators, and they informed him they needed to investigate and would get back to him in January 2022.
The applicant said he had not worked at Kadina High School since late 2021 and in
April 2022 he was working at another school. He had an offer of employment at yet another school.
On 4 April 2022, the applicant was informed by the principal of the school where he was working that he had been placed on the “temporarily unemployable list” and could not continue working in the school. Around that time, he also received notice that the other offer of employment had been rescinded.
The applicant had been removed from the school with no clear information. He had been socially ostracised and shamed. Young people, including students, laughed at him in public places and videoed him to post to social media. Old colleagues seemed to shun him, and he was without a regular income.
Mr Huxter had consulted with the applicant five times since 9 August 2022. The applicant’s adolescent son had received messages on social media calling BHK a paedophile. Students told him they had witnessed other students bragging that they got him fired and colluding with stories of indecency. A student involved in the accusations had stood behind him up to six times, listening to his conversation with a friend in the supermarket where the student worked. He felt harassed by this behaviour.
On 28 September 2022, the applicant said that after 10 months he eventually received details of the accusations and had an opportunity to respond.
On 19 October 2022, the applicant said he considered the slanderous gossip that had originated at Kadina High School was beginning to spread into the greater community. He thought his family was targeted by adult members of the community. He wondered if he needed to move away to protect himself and his family from harassment and possible threats.
Mr Huxter opined that on 9 August 2022, the applicant was suffering with adjustment disorder with mixed anxiety and depressed mood. In November and December 2021, it was stressful for him to hear about the complaint. However, he dealt with it rationally by thinking it was simply a misunderstanding. He was concerned about the complaint, yet was confident that with investigation the truth about what he saw as misconstrued allegations would emerge.
Mr Huxter opined that the stressors that precipitated the development of the applicant’s adjustment disorder included:
(a)    Being removed from classes and being placed on the NTBE list on 4 April 2022, when he felt he had not received adequate information or any reason for the timing.
(b)    Not being given detailed information about the accusations and an opportunity to respond in a timely and realistic manner.
(c)    Uncertainty about any new allegations from a school where he had not been working for four to five months.
(d)    Perceptions of being socially ostracised and defamed.
(e)    Perceiving a loss of reputation as a decent and ethical community member and professional.
(f)    Perceiving harassment in public places such as supermarkets.
(g)    Worrying about employment and the capacity to pay basic living expenses.
Mr Huxter opined that there was a direct relationship between the applicant’s condition and the stressors. Being notified of the complaint and undetailed accusations in 2021 was stressful. However, this stress was managed and not severe enough to cause adjustment disorder. There was a clear relationship between the condition and the way the complaint seemed to be managed. Had the accusations been addressed and managed in a transparent and timely manner, it may have prevented a “snowballing” of the stressors as outlined above, and the applicant’s condition may not have developed.
In Mr Huxter’s experience, accusations of paedophilia and related indecent behaviours, even when there is no evidence, seem to affect a person’s standing in the community. Community disgust about indecency with young people is so strong that despite often there being no evidence, the stigma and shaming seemed to persist. It was often very difficult to overcome and rise above community defamation and misperception.
The applicant was showing progress. Since being given the opportunity to respond, his stress had improved minimally. He was developing coping skills, slowly reducing anxiety, and attempting to regain his self-esteem. Continued improvement depended on him feeling his name had been cleared.
Mr Huxter summarised that since 19 (sic) August 2022, he had been consulting with and treating the applicant for adjustment disorder. The applicant received news of the accusations in late 2021. However, the disorder did not develop until April 2022.
Mr Huxter opined that the stressors that precipitated the applicant’s disorder are in direct relationship to how the complaint was managed. The stressors included those listed above and
“include as mentioned by Ian Collins solicitor in the report request … ‘the normal stress of teaching aggravated by allegations against him without a proper opportunity to respond before being removed from classes and placed on the ‘Not to be Employed List’.”

Dr Peter Young – psychiatrist

Dr Young was qualified by the respondent and reported on 1 March 2023.
Dr Young recorded a history that the applicant first experienced symptoms when he was notified of a complaint against him on 8 December 2021. He felt “devastated and shocked” and had experienced ongoing emotional distress.
The applicant said he had been told he would be able to respond to a complaint by
15 January 2022, felt somewhat reassured, and did his best, hoping that it could be resolved expeditiously.
Shortly after, students told him and his partner that students were talking about the allegations, including that they had been able to have him fired, and were calling him a paedophile. He felt increasingly distressed and spoke to the principal. He did not feel supported because the principal said there was nothing he could do.
The applicant commenced seeing a psychologist, who was helpful. He remained distressed, saying he felt his reputation had been damaged and he was not able to defend himself.
The applicant commenced work at Lismore campus, where he found the students were also talking about the case, causing further distress. He again contacted the Investigation Unit, reporting these concerns. These events occurred concurrently with floods, resulting in further stressors.
In April 2022, the applicant was informed of a second allegation. He was “absolutely devastated” and became further distressed as he was not able to obtain details. His mental state deteriorated, he was crying all the time, and avoided going out so as not to come into contact with students or other members of the community, as he was aware they were speaking about the allegations.
The applicant lost confidence in himself, increasing his alcohol content. He had poor sleep and was preoccupied with these issues. He had commenced Citalopram 20mg with little benefit, and this was increased to 40mg with some benefit. Subsequently, he commenced Mirtazapine, which improved his sleep. He had continued to see a psychologist, which was helpful. He continued to have significant symptoms in relation to the allegations.
He was informed of the content of the allegations in September and was able to respond, but still had no further news about them.
The applicant suffered depressive symptoms after contracting typhoid in Nepal in 2007 and was treated with Fluvoxamine for one year. He also experienced stress in relation to his marital breakup in 2019 and consulted his psychologist.
The applicant reported significant symptoms of anxiety, depression, and stress, which followed allegations against him in the workplace, related to disciplinary matters. Since that time, his symptoms had developed in the context of the prolonged investigation, in which he believed he had not been provided with appropriate timely information, and there had been breaches of confidentiality that had exposed him to further distressing contact, where students and others were aware of the allegations.
Dr Young diagnosed the applicant with adjustment disorder, which was ongoing. He opined that it was wholly or predominantly caused by the respondent’s actions with respect to discipline and/or dismissal.

SUBMISSIONS

The submissions have been recorded, and I will not repeat them in detail.
The applicant confirmed in the course of the respondent’s submissions that he accepted
Dr Young’s views.
Both the respondent and I assumed that the applicant accepted Dr Young’s opinion that the injury was wholly or predominantly caused by the respondent’s actions. Mr Grant said he assumed he therefore had to concentrate on “reasonableness”. That was not contradicted by Mr Collins.
The applicant then made a submission that the injury was not wholly or predominantly caused by the respondent’s actions.

Respondent

The respondent submitted that it had behaved reasonably throughout the period, with a focus on the period from 8 December 2021 to 4 April 2022. The applicant’s condition wholly or predominantly started as a consequence of what happened in about April 2022. That was the predominant cause of his condition. If I were against it on this, it submitted the events of December 2021 and April 2022 were causative factors.
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 of putting the interests of the students first. Their interests are paramount. This is not to say that procedural fairness does not come into play.
The respondent submitted that the events in December 2021 ran very quickly into the Christmas period, and then the events in the Northern Rivers were well known. The investigations got under way fairly quickly. There were two sets of complaints. Once a number of individuals were involved, enquiries had to be made of each one. The respondent was dealing with children, involving time, availability, and permission.
The respondent submitted that the period between December 2021 and April 2022 was not unusual or unreasonable. There is a basis for saying the focus should be closer to
April 2022. The respondent referred to Mr Huxter’s evidence. It submitted that it may be taken from the contemporary observation of Mr Huxter that as of 16 February 2022, the applicant was not complaining of the condition of which he now complains.
This brings the focus to April 2022. The respondent accepted that the applicant had an ongoing condition. It relied on Dr Young’s evidence to support that its actions were the predominant cause of his problems. It therefore needed to focus on reasonableness.
The respondent referred to the GP’s notes of 8 April 2022. It submitted that at that point, the focus of the adjustment disorder was the steps taken by the Department.
The respondent submitted that Ms Lord’s evidence indicated in detail how the investigation was conducted, with great care, including for the applicant’s feelings. There was the difficult problem of the paramount interests of the children while at the same time procedural fairness must be shown to the teacher. It is a “fine and delicate balance”. The steps taken were reasonable in all the circumstances.
The respondent submitted there were a number of complaints before the letter was issued on 8 December 2021. The Department was required to investigate. There was a well-defined process. All parties were afforded fairness. It is difficult to understand how the investigation could be done in any other way.
The respondent referred to Mr Witchard’s email to Ms Lord dated 9 December 2021, in which he advised that the applicant was upset. It submitted it was not surprising that this might well be the catalyst for the onset of symptoms, but it seems from Mr Huxter’s account that the applicant coped well.
The respondent submitted that, after further allegations arose, they were incorporated into Ms Lord’s investigation. The meeting between the applicant and Mr Swanbury on
4 April 2022 went well, or perhaps as well as might be expected.
The respondent referred to the discussion between the applicant and Ms Lord on
4 April 2022, when he said he was “shell shocked” after the meeting with “Kirt”, and his attendance on his GP on 8 April 2022. If we marry that evidence, it is a reasonable position to take that whatever happened between 4 April 2022 and 8 April 2022 was the trigger for the applicant’s condition, his incapacity having started on 4 April 2022.
The respondent referred to the bulletin, which it submitted delineated each step to be taken in the investigation. Confidentiality was important, and that is addressed, but as far as an investigation is concerned, there are the allegations; the enquiries; and the teacher’s chance to address the allegations.
The respondent submitted that, because it was dealing with children, the allegations needed to be raised with the teacher, and it was not unreasonable not to advise the precise nature of the allegations at the outset. If the teacher was still working in proximity with the children making the allegations, inappropriate things may occur. It was not unreasonable to tie down what the allegation was before it was put to the teacher. That is precisely what occurred.
The respondent submitted that what happened post-April 2022 is irrelevant. There is no real allegation regarding unfairness of the behaviour and interaction between the applicant and the principal and investigator.
Assuming the applicant’s main complaint is the time taken, the respondent repeated its submission that the time was not unreasonable, given the circumstances at the time.
The respondent submitted that “discipline” seemed to be the main focus, but “dismissal” also came into play because of the approach taken in April 2022. When the applicant was informed of the additional allegations in April 2022, he was removed from the list of teachers to be employed. That step was taken with respect to the paramount interests of the children. When an enquiry was going on about particular allegations, and further allegations came in, it was not unreasonable and was appropriate at that point to stand the applicant down.
In reply to the applicant, the respondent submitted that the applicant referred to interaction with students and the community. We don’t know when this took place, but if it was
post-April 2022, which was the date of injury, it is irrelevant to the s 11A defence.
The respondent submitted that, given Mr Huxter’s evidence that the applicant was OK in February 2022, it is reasonable to think that these interactions took place post-April 2022 and are therefore irrelevant.
The respondent submitted that the thrust of the applicant’s argument was that too much time took place in terms of the investigation. It again referred to its situation from December 2021 to February 2022. The enquiry was quite difficult and obviously time-consuming.

The respondent submitted that the applicant accepted that in late February 2022 there was no injury, so the focus must fall upon April 2022. It is clear that the second set of allegations and his removal from teaching triggered the injury. When the focus is on that and the emails in around April 2022, I could form no other view than that the respondent behaved in an entirely reasonable way.
The respondent asked what was the Department to do? What would a reasonable person expect it to do? There were allegations that needed to be investigated, then a second set of allegations, so the only reasonable step to take was to remove the applicant from teaching until the enquiries concluded. What happened after he left work was irrelevant to the enquiry I was making. In any event, the period to September 2022 was not unreasonable, taking into account circumstances such as COVID-19, floods and the like in a country centre.
The respondent’s primary submission, however, was that my enquiry was only relevant up to
4 April 2022.

Applicant

The applicant submitted that the simplest way to look at the matter was the basic chronology. The letter dated 8 December 2021 advised him that there was an investigation in relation to an allegation of inappropriate sexualised comments to students.
The bulletin assured the applicant that the investigation would be “fair” and “timely”, which was important, because this was what he had been told and understood would happen. It advised that “simple matters”, which, at face value this was, take three months to complete, and complex matters about nine months. He submitted this was his “headspace”.
The applicant submitted that the bulletin said the process was confidential and would preserve his privacy. He was able to deal with that because that was what he had been told. He had a conversation with the investigator and was reassured by her. He wanted to know what the actual allegations were.
The applicant referred to Mr Huxter’s evidence that he was dealing with that and coping quite well. On 16 February 2022, he was relatively stress-free. He was not suffering from this injury as he had been given reassurance that the investigation would be dealt with promptly, in a timely manner, and he would have the opportunity to respond. He was then told by letter dated 29 March 2022 that “all of a sudden”, there was a dramatic change. He was withdrawn from permission to teach or work with the Department, placed temporarily on the NTBE list, and reported to the OCG. This was a fairly dramatic step.
There is a deemed date of injury in April 2022. The applicant submitted that until that point, he had been told that it would be dealt with quickly, promptly, with natural justice balancing fairness. Not unreasonably, he perceived that he had been found guilty, removed from teaching, and was such a risk that he had to be reported to the OCG, at a time when he had not been provided with details of the allegations, despite asking for them within two days.
The details were not provided until 13 September 2022, and he responded promptly on
26 October 2022. He submitted that Ms Lord had declined to provide a copy of his response, and asked that I draw the appropriate inference that it would not assist the respondent. I have been unable to find any evidence to support this submission.
The applicant submitted that, even taken at their highest, and he disputed a number of matters, one would think as a reasonable person that they were not matters of significant seriousness. It was not an allegation of sex with or sexual abuse of a student or matters of that nature. They did not raise concerns with the OCG.
The applicant submitted I needed to focus on what caused the injury. He hasn’t been dismissed. He is still employed. He agreed that in terms of s 11A, the action was discipline.
The applicant then submitted that the injury was not wholly or predominantly caused by the respondent’s actions, referring to the actions of the students and community, and being shunned by the staff. He referred to Mr Huxter’s evidence. He submitted that the delay aggravated his condition.
The applicant submitted that, if I were against him on the issue of “wholly or predominantly”, then I need to look at whether the respondent’s actions were reasonable.
The applicant submitted that the respondent’s actions were unreasonable because he was advised that certain processes and timelines would occur. The period was three months to nine months, it took five months, and he was stood down, with no details of the allegations, and no opportunity to respond, for 11 months.
The applicant submitted it was hardly surprising that this combination of factors gave rise to an injury, particularly when the respondent took pre-emptive action to stand him down, report him to the OCG, there was a breach of confidentiality, and the community essentially treated him as a paedophile.
The applicant submitted that, if the “serious new allegations” had crystallised to the point in April 2022 that the respondent was justified in standing him down, he should have been provided with the details and given the opportunity to respond.
The applicant submitted that Dr Young and Mr Huxter were essentially saying the same thing. Dr Young said the injury developed following the allegations, not from the allegations. The prolonged investigation process, not being provided with timely information, and breach of confidentiality to which Dr Young referred was exactly his case.
In reply to the respondent’s reply, the applicant submitted that 4 April 2022 is a deemed date of injury. We don’t know that there were further allegations temporally. In terms of the letter of complaint, they all pre-date December 2021.
The applicant submitted that we have no evidence, apart from the letter of complaint and reply, that the Department did anything from April 2022. He was “left in limbo”.

SUMMARY

The sole issue to be determined is whether the applicant’s accepted psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to discipline and/or dismissal.
The applicant is apparently still employed by the respondent, and it appears that the respondent relies primarily on its actions with respect to discipline. The applicant did not submit that the respondent’s actions were not taken with respect to discipline.
Section 11A 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.
(3)     A ‘psychological injury’ is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4)     This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
…
(6)     This section does not extend the definition of ‘injury’ in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7)     In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker's condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8)     If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)--
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
The respondent bears the onus of establishing a defence pursuant to s 11A of the 1987 Act: Department of Education and Training v Sinclair.[1]

Was the injury wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent?

[1] [2005] NSWCA 465; (2005) DDCR 206.

“Wholly or predominantly” has been held to mean “mainly or principally caused” – Ponnan v George Weston Foods Ltd.[2]
[2] [2007] NSWWCCPD 92 (Ponnan).
Deputy President Roche applied Ponnan in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd.[3] In the same case Roche DP dealt with the issue of causation, on the basis that Kooragang Cement Pty Ltd v Bates[4] applied. He said: “causation is a question of fact to be determined on the evidence in each case”.
[3] [2008] NSWWCCPD 96.
[4] (1994) 35 NSWLR 452; 10 NSWCCR 796
I do not accept the applicant’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”.
As the respondent submitted, there is no evidence as to when these interactions took place, or with whom. The applicant 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 applicant was “upset” at the supermarket. That is also consistent with these events post-dating 4 April 2022.
Mr Huxter reported that the applicant was relatively anxiety and stress free in February 2022, and in fact did not require any more treatment. The applicant submitted that he was not suffering from this injury on 16 February 2022, referring to Mr Huxter’s evidence. I agree.
The timing of the “shunning” is also supported by the history Mr Huxter recorded at his consultation with the applicant in August 2022. The applicant 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 applicant’s solicitor said during the respondent’s submissions that he accepted Dr Young’s view.
Dr Young opined that the applicant’s injury was wholly or predominantly caused by the respondent’s actions. I accept his opinion, taking into account the other available evidence. The applicant’s injury was “mainly or principally caused” by the respondent’s actions with respect to discipline.

Were the respondent’s actions reasonable?

Considering the meaning of reasonableness, Geraghty J in Irwin v Director-General of Education[5] said:
“… the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[5] NSWCC 14068/97, 18 June 1998.
I do not accept the applicant’s submission that any of the respondent’s actions before the date of injury, that is 4 April 2022, is relevant. As the respondent submitted, the applicant accepted that in late February 2022, there was no injury, so the focus must fall on April 2022.
Whether or not 4 April 2022 is a deemed date of injury, the evidence establishes that, after being informed of what I will refer to as the first allegations, the applicant kept working until the end of the school year. He had no incapacity for work and there is no evidence that he sought medical treatment.
When the applicant consulted Mr Huxter on 16 February 2022, Mr Huxter did not believe he needed any more treatment. The applicant said he was seeking work, his contract not having been renewed, which does not suggest he felt at that time he was not able to work.
There then came the second allegations, after which the applicant was placed on the NTBE list. He was informed of this by Mr Swanbury on 4 April 2022, and provided with the letter from Mr Currie dated 29 March 2022. Ms Lord stated that the “primary stakeholder” with respect to the allegations of which Mr Witchard had advised had been conducted in February 2022 and a transcript was available by 7 March 2022.
The applicant was “shell shocked”. He sought medical attention from Dr Griffiths on
8 April 2022. She diagnosed adjustment disorder with depressed mood, and for the first time the applicant was issued with a WorkCover certificate of capacity. The stated date of injury was 4 April 2022.
Dr Griffiths referred the applicant to Mr Mooney, whom I infer from her notes is a psychologist, but there is no evidence that BHK consulted him. Dr Potter referred to the psychologist’s room having gone “under in the flood”.
The referral noted that the applicant’s mental health had been stable recently, and he had been coping well at home and at work. That accords with Mr Huxter’s evidence.
By the time the applicant again consulted Mr Huxter in August 2022, he was severely stressed, anxious, and depressed. Mr Huxter said in his report that the applicant’s disorder did not develop until April 2022. That must be a reference to being informed of his placement on the NTBE list at that time.
I have found little assistance from Dr Potter’s report, and to be fair to him, he acknowledged that it was unsatisfactory, apparently through no fault of his. The applicant made no submissions about his evidence.
As I am satisfied that the injury occurred on 4 April 2022, it is the respondent’s actions in advising the applicant of the further allegations against him and placing him on the NTBE list that were required to be reasonable.
In the matter of Northern NSW Local Health Network v Heggie,[6] Sackville AJA made the following general observations at [59]:
“(i)     A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii)     Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii)    An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv)    The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v)     Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi)    The assessment of reasonableness should take into account the rights of the employee, but the extent to which those rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.” (Emphasis in original).
[6] [2013] NSWCA 255 (Heggie).
I do not accept the applicant’s submission that the matters of which he was accused were not of significant seriousness. Without repeating in detail all the allegations, I regard as serious allegations that the applicant 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.
The respondent was investigating allegations against the applicant when further allegations came to light. They would no doubt require the type of investigation that was already underway, including obtaining statements from children, with the attendant requirement for parental consent. Ms Lord told the applicant that, additional allegations having been raised, the risk was re-assessed.
As the respondent submitted, the interests of the children were paramount. It asked what a reasonable person would expect it to do.
The respondent was faced with the options of allowing the applicant to continue teaching, as it had while the first allegations were investigated, and while it expanded its investigations, or removing him from contact with children. Mr Currie, the decision-maker, referred to “seriously improper and sexualised comments” having been made to a student. I have already said that I agree that the allegations were serious.
The applicant was in a position of authority over young children, who were required to attend school, and who were entitled to expect a safe and respectful environment in which to learn. Their parents were entitled to expect that they would feel safe at school.
As Sackville AJA said in Heggie, the test of reasonableness is objective. The test should take into account BHK’s rights, but the weight to be given them depends on the circumstances.
The respondent had to weigh the applicant’s rights against its duty to the children for whom it had responsibility. In my view, it was reasonable for it to advise the applicant of the second allegations, investigate them, and remove him from teaching while that took place.
When the circumstances changed, the respondent was required to re-assess the risk and act accordingly. Ms Lord’s evidence is that one of the considerations of risk management/mitigation is whether children have specific vulnerabilities. It is reasonable to expect that they may include children on the autism spectrum and gender diverse or gay or lesbian children.
I have determined that the applicant’s injury was wholly or predominantly caused by the respondent’s reasonable actions with respect to discipline. It is therefore unnecessary that I consider its actions with respect to “dismissal”.
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 applicant was not reasonable. I refer to Ms Lord’s evidence and the respondent’s submissions, which I accept.

As the respondent submitted, what occurred after the applicant left work is not relevant to the issue of injury, although it may have been to incapacity and the necessity for medical treatment. The injury occurred on 4 April 2022, which is the relevant date when considering a defence pursuant to s 11A of the 1987 Act.
The order is set out in the Certificate of Determination.

[2023] NSWPIC 166

17 April 2023