BKM v CGA

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	BKM v CGA [2024] NSWPIC 367
APPLICANT:	BKM
RESPONDENT:	CGA
MEMBER:	John Turner
DATE OF DECISION:	9 July 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; injury not disputed; dispute pursuant to section 11A(1) as to whether the psychological 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 discipline and/or dismissal; Pirie v Franklins Ltd, Department of Education and Training v Sinclair, Ponnan v George Weston Foods Ltd, Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd, Kooragang Cement Pty Ltd v Bates, Irwin v Director-General of Education, Ivanisevic v Laudet Pty Ltd, and Northern NSW Local Health Network v Heggie; Held – the applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline and/or dismissal; matter remitted to the President for referral to a Medical Assessor pursuant to s 321 of the Act for assessment of permanent impairment.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant’s psychological injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent in respect to discipline and/or dismissal. 2. I remit this matter to the President for referral to a Medical Assessor pursuant to s 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows: a. Date of injury: 18 June 2021 (deemed) – disease. b. Body systems / parts: psychological/psychiatric disorder c. Method of assessment: whole person impairment. 3. The documents to be reviewed by the Medical Assessor are: a. Application to Resolve a Dispute and attached documents, b. Reply and attached documents, c. attachments to Application to Admit Late Documents lodged by the applicant dated 19 April 2024, and d. attachments to Application to Admit Late Documents lodged by the respondent dated 22 April 2024. 4. The matter is to be listed for teleconference before me in respect to the claims for weekly compensation and medical and treatment expenses once the Medical Assessment Certificate is available.

STATEMENT OF REASONS

BACKGROUND

BKM, the applicant, was employed by CGA, the respondent, as a teacher.
The applicant has brought proceedings in the Personal Injury Commission (Commission) in which he alleges that he sustained psychological injury on 18 June 2021 (deemed) due to the nature and conditions of his employment, including but not limited to false allegations being made against him, lack of support and the unreasonable actions of his employer when investigating the allegations.
The applicant claims:
(a) weekly compensation pursuant to ss 36, 37 and 38 of the Workers Compensation Act 1987 (the 1987 Act) from 12 May 2021 ongoing;
(b) medical, hospital and related treatment expenses pursuant to s 60 of the 1987 Act, and
(c) permanent impairment compensation pursuant to s 66 of the 1987 Act.
The parties agreed that for the purposes of the arbitration hearing the only issue to be considered was liability pursuant to s 11A(1) of the 1987 Act. It is not in dispute that the applicant has sustained a psychological injury.
On 2 November 2020 the applicant arrived at the school where he worked at about 8.20am. Shortly after arriving at the school the Principal, BOR, came to his office and told the applicant that he needed to come to the Principal’s office. The applicant walked with him to his office. During the walk the applicant asked what this was about, and he advised the applicant that there had been a complaint made. BOR wished to wait until they were in his office before discussing the matter further.
The Human Resources (HR) Officer, BLV was sitting in the Principal’s office when they arrived. Once in the office BOR told the applicant that a complaint had been made against him by a student without providing any further details. The applicant was handed a letter dated 2 November 2020 which he read.
The respondent’s letter of 2 November 2020 advised the applicant that “certain issues have been raised regarding your conduct towards a student.” It advised that the alleged conduct fell within the definition of a reportable allegation under the NSW Children’s Guardian Act 2019. That the matter would therefore be reported to the NSW Office of the Children’s Guardian and investigated by the respondent.
The applicant was to be informed of the details of the investigator “in the near future.”
The applicant was placed on paid leave.
The applicant was advised of support services available to him through the respondent as well as their Employee Assistance Program (EAP).
The applicant was instructed by the Principal to immediately leave the school grounds. He was not permitted to collect his belongings. However, BRV did collect a few of his belongings from his office for him.
As the applicant was unable to be picked up, the Principal drove him home.
On 11 November 2020 two plain clothes NSW Police detectives attended at the applicant’s home seeking to interview him. The applicant requested that the interview be conducted at the Police Station which the applicant attended. Ultimately the applicant declined to be interviewed it would appear on the basis of legal advice.
On or before 18 November 2020 the respondent was informed by police that they had concluded their investigations. No charges were brough against the applicant.
On 20 November 2020 the respondent appointed Ms Kathryn Element to conduct its investigation.
On 17 December 2020, the Principal is for the first time formally advised by the respondent of the allegations made against him.
On 14 January 2021 the applicant provided a written response denying the allegations.
On 24 March 2021 the applicant was advised in writing of the outcome of the investigation. Four of the allegations were not substantiated due to there being insufficient evidence of weight to establish that the alleged conduct occurred. In respect to the fifth allegation, it was found that "the touch did occur" on 29 October 2020. No explanation was provided as to how that conclusion had been reached.
The applicant challenged the finding in respect to the alleged incident on 29 October 2020 requesting a copy of the evidence upon which finding was based. The applicant provided further evidence that he had not taught the subject student on 29 October 2020.
The respondent subsequently amended the date of the alleged incident to “Tuesday 27 October 2020”.
The applicant was afforded the opportunity to respond to the new date of 27 October 2020 at the same time as he provided a response as to why his employment should not be terminated.
The applicant submitted his response on 20 April 2021.
On 4 May 2021 the respondent advised the applicant that the final reporting to the Office of the Children's Guardian was of a "non-adverse finding" on all allegations. The letter advised in respect to the allegation in October 2020 that while the investigation concluded that the touch did occur, it could not be sufficiently established as being sexual in nature and therefore the only reasonable determination was a non-adverse finding.
On 5 May 2021 the applicant received a letter from the respondent requesting that he attend a meeting on 11 May 2021. At the meeting on 11 May the applicant’s employment with the respondent was terminated.

ISSUES FOR DETERMINATION

It is not disputed that the applicant has sustained a psychological injury. The sole issue in dispute for the purposes of the arbitration hearing is whether pursuant to s 11A(1) of the 1987 Act the psychological 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 discipline and/or dismissal.

PROCEDURE BEFORE THE COMMISSION

The matter was listed for conciliation conference/arbitration hearing before me on 26 April 2024. Submissions were commenced but were unable to be completed in the time available on the day and directions were made for written submissions. Ms Nicole Compton, counsel, instructed by Ms Jacqueline Bates, solicitor, appeared for the applicant, who was present. Mr Phillip Perry, counsel, appeared for the respondent, instructed by Ms Kali McCoy, solicitor. The proceedings were conducted via MS TEAMS. 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 to Resolve a Dispute (ARD) and attached documents;
(b)    Reply and attached documents;
(c)    attachments to Application to Admit Late Documents (AALD) lodged by the applicant dated 19 April 2024, and
(d)     attachments to AALD lodged by the respondent dated 22 April 2024.

Ms Compton on behalf of the applicant objected to part one (Reply pages 2-8) and part six (Reply pages 11-12) of the investigation report of Brian F. Davis & Associates dated 16 August 2021 being admitted into evidence. At the arbitration I admitted the parts into evidence advising that I would give further reasons which I now do.
Ms Compton objected to part one on the basis that it was a summary of the actual evidence, and it shouldn’t go in as proof of the truth of the matters contained therein. Mr Perry submitted that it provided what may be a useful aid memoir accepting that the summary can be no better than the material on which it is based. In my view the summary in question is a pure summary without comment by the investigators and is useful as an aid memoir as submitted by Mr Perry and nothing more. The applicant is not prejudiced by the summary being in evidence as the documents which are the subject of the summary are in evidence and not objected to.
Part six also provided a further summary of the investigation but also some comments in respect to the physical conduct of the investigations which may be of some minor relevance. Part six in fact contained little apart from the stating of purported facts based on the information contained in the investigation.
The parties were advised that submissions could be made as to the weight which would be applied to any of the material in issue.
I did not identify any prejudice which the applicant would suffer as a result of the pages in question being admitted into evidence.

Oral evidence

Neither party sought leave to adduce oral evidence.

FINDINGS AND REASONS

It is not disputed that the applicant has sustained a psychological injury in the course of his employment with the respondent. The respondent however disputes that the applicant has any entitlement to workers compensation benefits relying on the defence contained in s 11A(1) of the 1987 Act.
Section 11A(1) of the 1987 Act states:
“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.”
It is the respondent’s case that the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on its behalf with respect to discipline and/or dismissal.
The respondent bears the onus of proving the defence under s 11A.[1]
[1] See: Pirie v Franklins Ltd [2001] NSWCC 167; (2001) 22 NSWCCR 346; Department of Education and Training v Sinclair [2005] NSWCA 465; (2005) 4 DDCR 206.
The phrase “wholly or predominantly caused” has been held to mean “mainly or principally caused”.[2]
[2] See: Ponnan v George Weston Foods Ltd [2007] NSWWCCPD 92; Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd [2008] NSWWCCPD 96.
Issues of causation are determined on the facts in each case through a commonsense evaluation of the causal chain.[3]
[3] See: Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
There is no issue that the applicant’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the respondent with respect to discipline and/or dismissal.
The dispute for the purposes of s 11A(1) is firstly what actions or proposed actions caused the accepted psychological injury and secondly were those actions or proposed actions reasonable.

Actions or proposed actions that caused the accepted psychological injury

It is the respondent’s case that the applicant’s psychological injury was sustained wholly as a result of the respondent’s actions with respect to discipline on 2 November 2020. That the psychological injury was complete on 2 November 2020. That it was the allegations which the applicant was made aware of on 2 November 2020, the communicating of those allegations to the applicant, the suspension from work, being advised that there would be an investigation, all of which occurred on 2 November 2020 which caused the injury.
In the respondent’s submission the events after 2 November 2020 are irrelevant as the injury had already been sustained and there is no evidence that the events after 2 November 2020 made the applicant’s psychological condition worse.
I do not accept the respondent’s submission that the psychological injury was complete on 2 November 2020 for the following reasons.
It is the applicant’s evidence that on 2 November 2020 he was shocked by what was occurring and that his mind was running flat out trying to process the information and who would have made a complaint.
It is the applicant’s evidence that by the time he arrived home on 2 November his level of anxiety was increasing, and he felt overwhelmed by the situation. His mind was racing, as he could not think of any situation or action that he had done which was inappropriate in any way.
It is the applicant’s evidence that his level of emotion and angst was quite escalated for several days, his sleep and appetite were severely affected, and he found it difficult to function normally whilst he did not know what was happening. It is in the applicant’s evidence that it was a very isolating period during which he went through a range of emotions including anger, frustration and sadness.
The letter which the respondent provided to the applicant on 2 November 2020 advised “that certain issues have been raised regarding your conduct towards a student.” The applicant was not informed as to the nature, time, or number of the allegations. He was given no information as to the conduct in issue.
It is the evidence of the Principal, BOR that during the next few days he had regular telephone contact with both the applicant and his wife to check on his wellbeing as well as some correspondence via text messages. It is the evidence of BOR that he encouraged them to make contact with him and offered words of encouragement and continued to do so over the duration of the matter.
It is also the evidence of BOR that within 24 hours he had asked a chaplain to make contact with the applicant as a support person.
It is the applicant’s evidence that on 4 November 2020 he consulted his regular general practitioner (GP), Dr Jarrod Linsell at the Albury Wodonga Family Medical Centre and that he explained to the doctor the situation at work in respect to the allegations. That he had become extremely anxious, was not sleeping well only getting at the most a couple of hours sleep a night, that he was unable to turn his mind off and was constantly ruminating about what was going on.
The clinical record of the applicant’s attendance on Dr Linsell on 4 November 2020 records that the applicant’s mood was down, his “anxiety up +++”, some ‘si’, nil active and inconsistently with the applicant’s evidence that he was sleeping more than usual. I take “si” to be an abbreviation for suicidal ideation. There is no diagnosis recorded in the clinical record.
It is the evidence of BOR that on 10 November 2020 he contacted the applicant and had a conversation with him to advise of the status of the investigation, which at that stage was still with the NSW Police.
It is the applicant’s evidence that on 11 November 2020 during the morning two detectives from the NSW Police arrived at his home unannounced and advised that they were investigating the complaints which had been made against him and requested that he participate in an interview. The applicant attended the police station where it would seem in accordance with legal advice that he had received he declined to be interviewed. It is the applicant’s evidence that at this time he had still not been told by the respondent what the allegations were which had been made against him.
It is the applicant’s evidence that as he returned home from the police station his level of anxiety was extremely high and he was quite distressed about the accusation being made against him. He “was completely consumed and my mind could not switch off.”
On 12 November 2021 the applicant attended on Dr Linsell who recorded in the clinical record of the attendance that the applicant had a “hell of a week” with new allegations against him and having been to the police. The applicant reported to the doctor that he felt all over the place, head spinning, poor previous night’s sleep, felt exhausted, mood flat, anxiety through the roof, feels mostly angry, not suicidal. The clinical record of the attendance contains no diagnosis.
It is the applicant’s evidence that on 2 December 2020 he was not coping well mentally “due to the unknown” so he telephoned the Principal. He did not answer so the applicant left a voicemail requesting an update as to where the investigation was up to. It is the applicant’s evidence that he had been sitting at home with no advice in relation to what was happening so his mind was ruminating and significantly that his mental health was declining whilst he was suspended and just waiting in limbo to hear what was going to happen next.
Later that day he received a text message from the Principal to advise that he should have a letter ready to send to the applicant by the next day.
On 3 December 2020 the respondent wrote to the applicant advising that the police were no longer investigating the matter and that the respondent had engaged an independent external investigator, Ms Element, to undertake an investigation.
On 17 December 2020 the applicant received a letter from the respondent signed by the Principal which outlined five allegations which had been made against him and which were to be investigated. The date on which the first allegation was alleged to have occurred was 29 October 2020.
It is the applicant’s evidence that he immediately felt relieved as one allegation was alleged to have occurred on 29 October 2020 a day on which he had not taught or had any contact with the student in question. The applicant was not concerned by the remaining four allegations which had been made by a different student which were all historical and he knew to be false.
It is the applicant’s evidence that he consulted his GP on 22 December 2020 as his anxiety was continuing to increase and he was suffering from depressive symptoms and felt suicidal at times. It is the applicant’s evidence that he was feeling very unsupported by the respondent, isolated, and overwhelmed. That he had become very withdrawn and had stopped leaving the house apart from going to medical appointments, as he would become overwhelmed if he saw a student, family, or colleague.

The applicant’s evidence is inconsistent with the clinical record of the applicant’s attendance on the GP on 22 December 2020 which records that the applicant was “going ok”, that the applicant reported that he did not think that he was depressed and that there was no suicidal ideation. The clinical record notes that the issue at school had not been resolved, that the applicant had received the allegation letter, the police had finished their investigations and were not taking it any further, that there was to be an internal investigation and that the applicant was suspended with pay. The clinical record of the attendance does not record a diagnosis.
I prefer the observations contained in the clinical record of the applicant’s attendance on the GP as to the applicant’s symptoms and condition at the time. The clinical record is a contemporaneous record whilst the applicant’s statement was completed some six months after the event.
It is the applicant’s evidence that on 11 January 2021 he was told by an acquaintance that they had been told that one of the students who had made an allegation against the applicant had been spreading gossip around the school and community that involved sexual assault allegations against the applicant and "that she had gotten [the applicant] into trouble and was quite proud of it". It is the applicant’s evidence that he was “completely sickened to learn of this situation and from this point my mental health deteriorated rapidly.”
It is the applicant’s evidence that as at 22 January 2021 he was still off work suspended and felt very isolated and unsupported as he was not being updated about the progress of the investigation. That the Principal, BOR, had only initiated contact with him to check on his wellbeing on one or two occasions during the period of the police investigation. The applicant had initiated all other contact with BOR to follow up on where the process was up to. It is the applicant’s evidence that the new school year was approaching, and he was very much in the dark about his future and when he would be able to return to the classroom.
It is the applicant’s evidence that on 1 February 2021 school had started back and he still had no information about the status of the investigation. That in the interests of his health he sent an email to BOR to find out where the investigation was up to.
On 2 February 2021 the applicant received a reply from BOR. On 2 February 2021 the applicant also attended on Dr Linsell who noted that the applicant had seen a counsellor and observed that his mood was flat. The clinical record of the attendance does not contain a diagnosis.
It is the applicant’s evidence that he sent an email to BOR on 24 February 2021 enquiring as to the status of the investigation. BOR replied the same day advising that the Investigator had indicated she would have a report to him by 4 March 2021.
It is the applicant’s evidence that on 4 March 2021 he received no advice or contact from BOR and that he was completely overwhelmed and disheartened to receive no advice or contact.
It is the applicant’s evidence that four days later, on 8 March 2021 he received an email from BOR advising that he had still not received a report from the investigator.
On 19 March 2021 the applicant sent an email to BOR asking if there had been any news in regard to the investigation. It is the applicant’s evidence that he sent this email having not heard anything. BOR replied to the applicant that day that progress had been made and that he could have a letter for the applicant on 22 March. It is the applicant’s evidence that he spent the weekend feeling very anxious and depressed about the entire process.
On 22 March 2021 the applicant received an email from BOR advising that he still had not received the report from the investigator. The applicant emailed BOR expressing how disappointed he was feeling with no outcome.
On 24 March 2021 the applicant received an email from BOR advising that the internal investigation had been completed, and that it had been found in respect to the allegation of 29 October 2020 that "the touch did occur". No explanation was provided as to how that conclusion had been reached. The remainder of the allegations were not substantiated due to lack of evidence. In the letter the applicant was also requested to submit show cause as to why his employment should not be terminated. It is the applicant’s evidence that he was absolutely floored by the outcome as he did not teach the student in question on 29 October 2020.
On 9 April 2021 the respondent wrote to the union admitting that their correspondence of 24 March contained an error in relation to the date of October 2020 allegation which was recorded as having occurred on “Thursday 29 October 2020” not “Tuesday 27 October 2020” which was the correct date of the allegation.
It is the applicant’s evidence that on 12 April 2021 he received an email from Lyn Caton, his union representative, advising that she had received from BOR a letter dated 9 April 2021, outlining the reason the allegation had been upheld. BOR admitted that there had been an error and that the applicant had been provided with the incorrect date for the alleged incident. That the event was alleged to have occurred on 27 October 2020 and not 29 October 2020.
It is the applicant’s evidence that in the letter BOR also referred to a letter dated 2 December 2020, which "correctly identifies the date the alleged incident in Allegation 1 occurred as 27 October 2020". It is the applicant’s evidence that he has never received any letter dated 2 December 2020.
It is the applicant’s evidence that in the same letter BOR claimed that the applicant had been "throughout this process…well aware that the date of the alleged incident in Allegation 1 was 27 October 2020". It is the evidence of the applicant that this statement angered him and caused very significant anxiety and he felt extremely unsupported by the respondent.
It is the applicant’s evidence that a copy of the letter 2 December 2020 was requested from the respondent but has never been produced.
A copy of any such letter is also not in evidence before me.
It is the evidence of BOR that during the investigation process Ms Element, who had been appointed to undertake the internal investigation, mistakenly entered the incorrect date of 29 October 2020 for the alleged incident. This incorrect date was then copied into some formal correspondence to the applicant. It is the evidence of BOR that the correct date was 27 October 2020 and that this was furnished to the applicant in an amended letter. I assume that the amended letter which BOR is referring to is the letter of 2 December 2020.
I do not accept the evidence of BOR that the applicant was supplied with a letter of 2 December 2020 advising him of the amended date in respect to the allegation in October 2020. The applicant denies that he ever received such a letter. Repeated requests were made for the production of the letter on behalf of the applicant, it is not in evidence before me, and the applicant was not informed in writing of the allegations until 17 December 2020 which would mean that the amending letter pre-dated the letter it was intended to amend by some two weeks.
On 15 April 2021 the applicant consulted Dr Linsell who noted that the school issues had not resolved and that the applicant was stressed and seeing a counsellor.
It is the applicant’s evidence that on 20 April 2021 he submitted his formal show cause response.
On 4 May 2021 the applicant received an email letter from BOR with a letter attached advising that the final reporting to the Office of the Children's Guardian was of a "non-adverse finding" on all allegations. The letter advised in respect to the allegation on 27 October 2020 that whilst the investigation had concluded that the touch did occur, it could not be sufficiently established as being sexual in nature, and therefore the only reasonable determination was a non-adverse finding.
It is the applicant’s evidence that his anxiety and anger completely spiked at this point, and he was completely overwhelmed and depressed with a significant increase in suicidal thoughts.
On 5 May 2021 the applicant received a letter from the respondent requesting that he attend a meeting on 11 May 2021 with the respondent’s HR Director, BNT to discuss the outcome of the investigation.
It is the applicant’s evidence that he attended the meeting very nervously and was advised verbally by BOR that his employment with the respondent was to be terminated and was handed a letter of termination. The applicant was refused the option of resigning. It is the applicant’s evidence that he was left feeling extremely let down with the way that he had been treated and how the entire investigation had been handled.
It is the applicant’s evidence that on 18 May 2021 he consulted Dr Linsell as his “symptoms were rapidly increasing and the suicidal tendencies were escalating.” Dr Linsell’s clinical note of the consultation is very brief recording that the applicant’s employment had been terminated and that a Mental Health Plan had been completed.
The applicant again consulted Dr Linsell on 24 May 2021 at which time the doctor recorded that the applicant’s mood was up and down, that the applicant had been unable to access income protection insurance, that the applicant had an interview with another school, that the applicant was highly anxious and that his suicidal ideation had returned. The doctor suggested hospitalisation to the applicant. The applicant agreed to commence on the antidepressant, Escitalopram. Dr Linsell for the first time recorded a diagnosis of depression/anxiety.
It is the applicant’s evidence that on 3 June 2021 he had his first consultation with Chris Gullifer, psychologist. It is the applicant’s evidence that he reported to Mr Gullifer that he was unable to go into town due to fear of seeing a student, parent or being around people in general. That he had become withdrawn and had made a suicide plan as well as a backup plan. That he would get extremely anxious going into the shopping district and could not go to his local shops due to his anxiety.
It is the applicant’s evidence that on 10 June 2021 his suicidal thoughts rapidly increased and that night he attempted to take his car for a drive to carry out his plan but was stopped by his wife. Over the weekend his suicidal thoughts continued and as his wife had taken all the car keys, he developed an alternat suicide plan.
It is the applicant’s evidence that on 15 June 2021 he attempted unsuccessfully to get an urgent appointment with Dr Linsell. A friend of the applicant’s contacted Albury Wodonga Health, Mental Health Crisis Team Hotline. The applicant completed an initial interview by telephone. It was recommended that he see Dr Linsell the following day and was scheduled to see a psychologist on 17 June 2021.
The applicant attended on Dr Linsell on 16 June 2021. The clinical record of the attendance records that the mental health crisis assessment hotline had been called, that the applicant reported suicidal ideation with plan, but no intent and that the applicant’s mood had “gone lower”. The doctor increased the applicant’s dose of Escitalopram.
On 23 June 2021 the applicant attended on Dr Linsell. The clinical note of the consultation records that the applicant was “not too bad”, “better than last time” however the suicidal ideation was still present but less intense.
On 30 June 2021 the applicant attended on Dr Linsell. The clinical note of the attendance records that the applicant was “not too bad” however the night before the consultation he had been really low and two days prior he was “not good”. He had fleeting suicidal ideation. Overall, he was a little better.
On 9 July 2021 the applicant attended on Dr Linsell. The clinical note of the attendance records that the applicant’s mood was fluctuating, his anxiety had heightened seeing students at the cinema, he had fleeting suicidal ideation.
It is the applicant’s evidence that on 11August 2021, he attempted suicide by attempting to drive his car into a tree, pulling out at the last second.
The applicant attended on Dr Linsell on 17 August 2021. The clinical record of the attendance records that liability had been declined for works compensation but was receiving income protection. The applicant reported that the previous Wednesday he was driving towards a tree only pulling away at the last minute. The doctor added Mirtazapine to the applicant’s medications.
The doctor noted that the applicant was also stressed about income, not meeting obligations and about future jobs.
On 31 August 2021 the applicant attended on Dr Linsell who noted that the applicant’s sleep had improved with the addition of Mirtazapine, mood slightly improved, no suicidal ideation, felt agitated and fidgety.
It is the applicant’s evidence that whilst he experienced some anxiety after the initial notification of an allegation, the anxiety and depression escalated significantly in April 2021 following the correspondence regarding the conflicting dates of the alleged incident in October. It is his evidence that he was not able to sleep, experienced recurrent dreams, required significant assistance to attend to personal and domestic tasks and was not able to access the community.
It is the applicant’s evidence that he experienced a further deterioration in his mental health to the point of shutting down emotions following the termination of his employment.
Dr Linsell reported to UHG on 19 July 2021 providing responses to a series of question. Unfortunately, the correspondence with the questions is not in evidence. However, it would appear that Dr Linsell is of the opinion that the applicant’s injury was caused by the allegations made as well as the investigation process with the doctor stating:
“1. False allegations made at school and the mishandling of the investigation by the school.”
Dr Hazlin Lockman, the applicant’s treating psychiatrist, reported to the applicant’s solicitors on 19 December 2022. Dr Lockman had been treating the applicant since September 2021 for management of depressive symptoms which the applicant had been suffering since the work incident. The doctor had seen the applicant on approximately eleven occasions.
Dr Lockman noted that the applicant said that since the incident he had been experiencing increasing anxiety symptoms and depressive thoughts. Dr Lockman diagnosed a major depressive disorder, severe with no psychotic features. This was on a background of post-traumatic stress disorder symptoms from the false allegation of inappropriate behaviour with a female student.
In the opinion of Dr Lockman, the incident and circumstances of employment were the main contributing factors to the applicant’s current condition.
Dr Anthony Dinnen, psychiatrist, provided a forensic report to the applicant dated 29 May 2023. According to Dr Dinnen the applicant reported that his symptoms had gradually come on during the investigation process. He was concerned about the Principal's attitude and was anticipating the decision that they would come to.
Dr Dinnen diagnosed a major depressive disorder.
In the opinion of Dr Dinnen, the major depressive disorder developed as a result of an adjustment disorder with anxiety and depressed mood, which had occurred in the initial stages in response to the workplace stressors.
Dr Abdal Khan, psychiatrist, provided a forensic report to the respondent dated 4 August 2021.
Dr Khan took a history of allegations having been made and the events of 2 November 2020 and then a brief history of the events running up to the termination of the applicant’s employment with the respondent and the making of an unfair dismissal claim.
Dr Khan concluded that as a result of the work-related stressors the applicant experienced a gradual deterioration in his mental state characterised by low mood, anxious ruminations, panic, agitation, reduced motivation, reduced enjoyment in activities, social withdrawal, hypervigilance, avoidance of traumatic reminders including schools and school students, appetite disturbance with weight loss of approximately 10kg, reduced energy, impaired attention, impaired concentration, impaired memory and sleep disturbance with poor sleep maintenance. He also described a loss of self-confidence, loss of self-identity, loss of trust in interpersonal relationships, feelings of hopelessness and worthlessness and suicidal ideation with previous intention to drive into a tree or hang himself.
Dr Khan diagnosed a major depressive disorder with anxious distress.
In the opinion of Dr Khan, the applicant’s presentation was understandable given the significance of the allegations made against him and the subsequent conduct of his employer. The initial onset of psychiatric/psychological symptoms was 2 November 2020, which was when the applicant first learned about the allegations made against him and was stood down with pay.
Dr Khan provided a further forensic report to the respondent dated 31 October 2023 in which the doctor provided a diagnosis of major depressive disorder with anxious distress.
Dr Khan confirmed his opinion that the work-related stressors that the applicant endured in his employment with the respondent were the substantial contributing factor to his current psychiatric/psychological condition and symptoms. The doctor did not specifically limit the injury to being due to the events of 2 November 2020.
In my view the evidence does not support that the whole of the applicant’s psychological injury was sustained on 2 November 2020 and that the events of 2 November 2020 were the sole cause of the psychological injury. The evidence in my view supports that there was an ongoing process of injury following 2 November 2020 with the applicant’s mental health being significantly negatively impacted by the events associated with the allegations, the investigation of those allegations and ultimately the termination of his employment with the respondent. In my view whilst the applicant’s condition fluctuated it ultimately deteriorated over time.
In particular the evidence supports that there was a significant decline in the applicant’s psychological condition following being advised of the outcome of the respondent’s investigation on 24 March 2021 and the termination of his employment with the respondent on 5 May 2021.
It is the applicant’s evidence that his anxiety and anger completely spiked on 4 May 2021 after being advised by the respondent of the final reporting to the Office of the Children's Guardian. That at that point, he was completely overwhelmed and depressed with a significant increase in suicidal thoughts.
Following the termination of his employment with the respondent on 5 May 2021 the applicant’s condition drastically deteriorated. It is the applicant’s evidence that he attended on Dr Linsell on 18 May as his “symptoms were rapidly increasing, and the suicidal tendencies were escalating.” On 24 May Dr Linsell noted that the applicant was highly anxious and that his suicidal ideation had returned with the doctor suggesting that the applicant attend a hospital and for the first time the applicant agreed to commence on an antidepressant medication.
It is the applicant’s evidence that on 3 June 2021 he attended on the psychologist, Mr Gullifer, for the first time reporting that he had made a suicide plan as well as a backup plan. That on 10 June 2021 his suicidal thoughts rapidly increased and that night he attempted to take his car for a drive to carry out his plan but was stopped by his wife. That on 15 June the Wodonga Health, Mental Health Crisis Team Hotline was contacted on his behalf.
On 16 June 2021 Dr Linsell recorded that the applicant reported suicidal ideation with plan, but no intent and that the applicant’s mood had “gone lower”. The doctor increased the applicant’s does of the antidepressant. Escitalopram.
It is the applicant’s evidence that he attempted suicide on 11 August 2021 by driving into a tree but swerved at the last instant.

In my view the opinions of the medical experts also do not support that the psychological injury was solely caused by the events on 2 November 2020 and that the whole of the injury was sustained on 2 November 2020.
The applicant’s GP, Dr Linsell, does not record a diagnosis in his clinical records until 24 May 2021. Dr Linsell in his report to UHG of 19 July 2021 appears to provide an opinion that the applicant’s condition was caused both by the allegations made against him and the respondent’s investigative process. However, I place little weight upon that opinion as I am speculating as to the question to which Dr Linsell was responding.
The applicant’s treating psychiatrist, Dr Lockman, in his report of 19 December 2022 recorded that the applicant had been “experiencing increasing anxiety and depressive thoughts” since 2 November 2020. Significantly in the opinion of Dr Lockman the “incident and circumstances of employment has been the main contributing factor to his current condition.” [emphasis added] I take the “incident” to be the events of 2 November 2020.
Whilst in the opinion of Dr Khan the initial onset of psychiatric/psychological symptoms was on 2 November 2020 when the applicant first learned about the allegations made against him and was stood down with pay. The doctor in my view supports that there was an ongoing process of injury after 2 November recording that the applicant experienced a “gradual deterioration” in his mental state as a result of the work related stressors. The doctor does not restrict those work related stressors to the events of 2 November 2020 and significantly was of the opinion that the applicant’s presentation was understandable given the significance of the allegations made against him and the “subsequent conduct of his employer”.
Dr Dinnen, psychiatrist, who provided a forensic report to the applicant on 29 May 2023 recorded that the applicant reported that his symptoms had “gradually come on during the investigation process.” In the opinion of Dr Dinnen, the applicant developed a major depressive disorder as a result of an adjustment disorder with anxiety and depressed mood, which had occurred in the initial stages in response to the workplace stressors.
I find the opinion of Dr Dinnen of little assistance in respect to the present issue. Whilst it is the doctor’s opinion that the adjustment disorder with anxiety and depressed mood occurred in the “initial stages”, what the doctor means by “initial stages” and whether that encompassed more than the events of 2 November 2020 is not known.
Furthermore, whilst the doctor is of the opinion that the applicant developed a major depressive disorder as a result of an adjustment disorder it is unclear as to whether in the opinion of Dr Dinnen the adjustment disorder with anxiety and depressed mood evolved into the major depressive disorder as a result of further psychological insult as a result of the events associated with the allegations, the respondents investigations and the termination of the applicant’s employment or simply evolved without any such further insults.
The weight of the expert medical opinion in my view supports that the injury process was ongoing.

Reasonable action

Geraghty J in Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998 (Irwin) considered the meaning of “reasonable action” in s 11A stating:
“…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.”
Truss CCJ in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998) observed:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
In Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie), Sackville AJA observed at [59]:
“(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 these 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.”
For the following reasons I am of the view that the actions taken by the respondent or on the respondent’s behalf, which caused the accepted psychological injury, were not reasonable.
Having determined that the applicant’s injury was not solely sustained on 2 November 2020 but that the sustaining of the injury was an ongoing process the actions in question are not limited to those actions of the respondent taken on 2 November 2020.
It is the applicant’s evidence that on 2 November 2020 he arrived at the school at about 8.20am and shortly after arriving BOR came to his office and told him that he needed to come to his office. The applicant walked with BOR to his office. During the walk the applicant asked BOR what this was about, and BOR advised the applicant that there had “been a complaint made against you.” BOR wished to wait until they were in his office before discussing the matter further.
It was submitted on behalf of the respondent that the action of BOR in declining to speak further about the matter prior to reaching his office was reasonable. I accept the respondent’s submission. It was appropriate for the matter to be treated confidentially and therefore appropriate to wait until they had reached the privacy of BOR’s office before discussing the matter further. Any delay caused would only have been a matter of minutes.
The HR Officer, BRV was sitting in BOR’s office when they arrived. Once in the office BOR told the applicant that a complaint had been made against him by a student without providing any further details. The applicant was handed a letter dated 2 November 2020 which he briefly read.
The respondent’s letter of 2 November 2020 advised the applicant that “certain issues have been raised regarding your conduct towards a student.” It advised that the alleged conduct fell within the definition of a reportable allegation under the NSW Children’s Guardian Act 2019. The matter would therefore be reported to the NSW Office of the Children’s Guardian and investigated by the respondent.
The applicant was to be informed of the details of the investigator “in the near future” and was placed on paid leave.
The applicant was advised of support services available to him through the respondent as well as their EAP.
Whilst it was clearly indicated that the complaint was serious the applicant was given no information as to the nature of the complaint, when the complained of conduct occurred, the identity of the complainant or the number of allegations.
Whilst the letter advised the applicant that the matter would be reported to the NSW Office of the Children’s Guardian and investigated by the respondent, no further information was provided as to the process other than that he would be informed of the details of the investigator “in the near future.”
The applicant was instructed by BOR to immediately leave the school grounds. He was not permitted to collect his belongings. However, BRV did collect a few of the applicant’s belongings from his office for him.
As the applicant was unable to be picked up BOR drove him home. It is the applicant’s evidence that there was very little conversation during the drive and that he was shocked by what was occurring and his mind was running flat out trying to process the information and who would have made a complaint.
It is the evidence of BOR that on 10 November 2020 he contacted the applicant and had a conversation with him to advise of the status of the investigation, which at that time was still with the NSW Police.
It is the applicant’s evidence that on 11 November 2020 two plain clothes NSW Police detectives arrived at his home unannounced. They very briefly advised the applicant that they were investigating a complaint related to his employment and requested that he participate in an interview. The applicant requested that the interview be conducted at the police station.
The applicant attended the police station at an agreed time and spoke to the two police officers. It would appear that the applicant declined to be interviewed on the basis of legal advice advising the police officers that he did not know what the allegations were.
It is the applicant’s evidence that the police informally informed him of allegations made by two female students. The applicant was not told the dates or times of the alleged events.
It is the evidence of the HR Director, BNT, that on 18 November 2020, the Principal, BOR sought the appointment of an independent investigator after the police had advised that their investigation had concluded.
It is the evidence of BNT that on 20 November 2020 Ms Kathryn Element was appointed to conduct the investigation for the respondent. The investigation was to be commenced with immediate effect.
It is not until some two weeks later, on 3 December 2020, that BOR wrote to the applicant on behalf of the respondent. The letter appears to be the first formal correspondence which the applicant had received from the respondent since the letter of 2 November 2020. The applicant was advised that the NSW Police had advised that they were no longer investigating the matter and the purpose of the letter was to provide details regarding the respondent’s investigation into the allegations.
The letter advised the applicant that due to the seriousness of the allegations; his conduct may be considered misconduct and/or serious misconduct and in the event that “one or more of the allegations were found to be substantiated”, may lead to disciplinary action up to and including termination of his employment.
The letter advised that the respondent had engaged an external investigator, Ms Element, through the Association of Independent Schools New South Wales (AISNSW) to conduct the investigation.
The letter also advised that the investigator would contact him in due course to provide him with a letter outlining:
(a)    the particulars of the allegations;
(b)    the investigation process, and
(c)    to invite the applicant to participate in the investigation.
The letter advised the applicant that “Until the [respondent] has made a determination on these matters, you are now suspended from teaching duties with pay.”
At this point, a month after the applicant was first advised that there had been a complaint made against him and two weeks after the respondent had been advised of the completion of the police investigation, the applicant has still not been given any information by the respondent as to the allegations made against him and it is only at this point that the applicant is advised of the identity of the investigator appointed by the respondent.
The delay in advising the applicant of the completion of the police investigation is not explained. The respondent whilst not providing any details of the allegations to the applicant had clearly indicated that the allegations were serious in nature with potentially serious consequences which was also confirmed by the reporting of the allegations to the police.
Having reported the allegations to the police it was not reasonable for the respondent to wait some two weeks after being advised of the conclusion of the police investigation to formally inform the applicant that the police investigation had been completed and that the respondent would now be proceeding with its own investigation.
It is not necessary to determine whether the respondent’s actions in failing to advise the applicant on 2 November 2020 or shortly thereafter of the details of the allegations was reasonable conduct, as in my view the conduct of the respondent in failing to advise the applicant of the details of the allegations directly following being advised of the cessation of the police investigation, and then failing to advise the applicant in the letter of 3 December, two weeks after the completion of the police investigation and the appointment of Ms Element, was not reasonable. The applicant had a right to know the allegations which had been made against him at the earliest possible opportunity.
It is the evidence of BNT that on 15 December 2020 Ms Element indicated that the union had made contact on behalf of the applicant as he was anxious about the progress of the investigations.
On 17 December 2020, the Principal, BOR again wrote to the applicant on behalf of the respondent. The stated purpose of the letter was to provide the applicant with the “details of the allegations and an opportunity to respond to the allegations.” The letter advised the applicant as to the seriousness of the matter.
The letter, for the first time, some six weeks after the applicant was advised of the allegations, four weeks after the respondent was advised of the completion of the police investigation and two weeks after the applicant having been advised of the cessation of the police investigations, provided the applicant with the details of the allegations made against him including who had made the allegations. In total there were five allegations the most recent of which according to the letter occurred “on Thursday 29^th October 2020”.
As previously discussed, the respondent’s action in failing to formally advise the applicant of the allegations prior to 17 December 2020 is clearly and definitively unreasonable in my view.
The applicant was afforded the opportunity to respond to the allegations at an interview with Ms Element or by providing a written response. Any written response was requested by close of business on 25 January 2021.
The applicant submitted his written response to the allegations on 14 January 2021. At the same time BOR was advised that in addition to the written response the applicant was also willing to participate in an interview if needed to confirm or clarify any answers provided in his written response or if there were additional questions which needed to be put to him. Alternatively, any questions could be forwarded to the applicant in writing for him to provide a written response. It is the applicant’s evidence that he was never contacted by the investigator.
The applicant in his response responded to each allegation. The applicant denied the alleged incident on 29 October 2020 advising that he did not teach the student in question on that day.
The applicant by way of background advised that there were no known issues with the student in question except for an incident that had occurred on Tuesday 27 October 2020 when the student arrived late to class and the applicant had questioned her as to whether she had been smoking.
It is the applicant’s evidence that BOR only initiated contact with him to check on his wellbeing on one or two occasions during the period of the police investigation and that he also initiated all other contact with BOR to follow up on where the process was up to.
It is the evidence of the HR Director, BNT that on 25 January 2021 Ms Element advised that she had read and reviewed the applicant’s written response and felt that it was not necessary to conduct an interview with hm.
I do not understand how Ms Element could have reached such a conclusion. There is no statement from Ms Element in evidence. The response by the applicant to the allegation of 29 October 2020 was in summary that he did not teach the applicant on that day and had no contact with the student. The applicant did provide by way of background only, the details of an event that had occurred on 27 October 2020. He did not respond to any allegations of any alleged event on 27 October 2020. As will be discussed further below, the respondent would subsequently advise the applicant that the alleged incident occurred on 27 October 2020 and not 29 October 2020.
Ms Element would conclude the respondent’s investigation without giving the applicant the opportunity to respond to the alleged incident on 27 October 2020.
It is the applicant’s evidence that he sent an email to BOR on 24 February 2021 enquiring as to the status of the investigation. BOR replied the same day advising that the Investigator had indicated she would have a report to him by 4 March 2021.
It is the applicant’s evidence that on 4 March 2021 he received no advice or contact from BOR. It is the applicant’s evidence that four days later, on 8 March 2021 he received an email from BOR advising that he had still not received a report from the investigator.
On 19 March 2021 the applicant sent an email to BOR asking if there had been any news in regard to the investigation. It is the applicant’s evidence that he sent this email having not heard anything. BOR replied to the applicant on that day that progress had been made and that he could have a letter for the applicant on 22 March.
On 22 March the applicant received an email from BOR advising that he still had not received the report from the investigator.
On 24 March 2021 the applicant received an email from BOR advising that the internal investigation had been completed, and that it had been found in respect to the allegation of 29 October 2020 that "the touch did occur". No explanation was provided as to how that conclusion had been reached. The remainder of the allegations were not substantiated due to there being insufficient evidence of weight to establish that the alleged conduct occurred. In the letter the applicant was also requested to respond in writing by 5.00pm on 30 March 2021 as to why his employment should not be terminated.
On 25 March 2021 the Union wrote to the respondent on behalf of the applicant challenging the veracity of the evidence provided during the investigation process in respect to the allegation of Thursday, 29 October 2020 and requesting a copy of the evidence upon which the finding was based. The union provided further evidence to the respondent as to the applicant having not taught the student in question on 29 October 2020.
On 9 April 2021 BOR wrote on behalf of the respondent to Ms Caton, the applicant’s union representative, advising that the allegation which the applicant had been advised had occurred on “Thursday 29 October 2020” had in fact occurred on “Tuesday 27 October 2020”.
In the letter BOR states that the allegation was first presented to the applicant under cover of his letter dated 2 December 2020 and that letter correctly identified the date of the alleged incident as 27 October 2020. A copy of the letter of 2 December 2020 was alleged to have been attached to the letter but no such attachment was received.
BOR submitted that the applicant had throughout this process been well aware that the date of the alleged incident was 27 October 2020 and he had responded accordingly.
On “the basis of the administrative error in the letter dated 24 March 2021 and the interest of completeness” the respondent afforded the applicant a further opportunity to respond in writing to the corrected allegation on Tuesday 27 October 2020. The applicant was given to 5.00pm on Tuesday 20 April 2021 to respond. The applicant was also to provide by the same date his response as to why his employment should not be terminated.

On 14 April 2021 Ms Caton sent an email to BOR advising that the applicant had never received a letter from BOR of 2 December 2020, that the letter was also not attached to his letter of 9 April, that the respondent’s letter of 17 December 2020 was the first letter to outline the details and date of the allegation and that recorded that the alleged event had occurred on “Thursday 29th October 2020....” and finally that BOR’s letter of 9 April 2021 was the first occasion that the date of 27 October 2020 had been notified to the applicant.
Ms Caton also complained that BOR’s letter of 24 March 2021 failed to provide the applicant even in generals terms, the reasons or basis on which the allegation had been sustained. Ms Caton submitted that it was unfair to expect the applicant to attend any meeting or to prepare a show cause response without such information.
It is the evidence of BOR that during the investigation process Ms Element, who had been appointed to undertake the internal investigation, mistakenly entered the incorrect date of 29 October 2020 for the alleged incident. This incorrect date was then copied into some of the formal correspondence to the applicant.
It is the evidence of BOR that the correct date was 27 October 2020 and that this date was furnished to the applicant with an amended letter. As I have previously discussed I assume that the amended letter which BOR is referring to is the letter of 2 December 2020 which BOR refers to in his correspondence of 9 April.
As previously discussed, and for reasons that I have previously given I do not accept the evidence of BOR that the applicant was supplied with a letter of 2 December 2020 advising him of the amended date in respect to the allegation in October 2020.
On 19 April 2021, the HR Director, BNT emailed Ms Caton at 4.08pm confirming that the applicant was to provide his response by 5.00pm on 20 April 2021. BNT submitted that notwithstanding the administrative error as to the date, the investigation concluded that the physical contact did occur as described in the allegation.
In relation to Ms Caton’s request for further information BNT only referred to the Principal’s letter of 24 March 2021 and unhelpfully simply repeated the outcome. BNT did not provide any reasons for why the information on which the decision was based was not being released and there is no evidence as to why that information was not provided to the applicant. I am of the view that the withholding of that information without there being any identifiable reason for doing so was unreasonable and unfair to the applicant.
On 19 April 2021 BNT also emailed Ms Caton in response to questions posed by Ms Caton that “the investigation has concluded.” That the applicant had been “provided an opportunity to respond to the allegations and has done so in writing.” That the applicant “was provided fair and due process throughout the investigation. The investigation concluded that the physical contact did occur.” BNT confirmed that the respondent was considering terminating the applicant’s employment.
It is the evidence of BNT that from her perspective the applicant had been given allowances and the process was in fact being dragged out by the Union questioning the process.
In my view the applicant had not been given the opportunity to respond to the allegation of 27 October 2020. Whilst the applicant may have canvassed in his response an event that took place on 27 October 2020 by way of background, he had not had the opportunity to directly respond to the allegation and had not in my view been provided “fair and due process”.
In my view it was also entirely unreasonable and unfair to require the applicant to provide his response to the allegation of 27 October 2020 at the same time as responding to why his employment should not be terminated. Such action especially when considered with the comments of BNT in her email to Ms Caton of 19 April give the strong impression that the conclusion was forgone in respect to the allegation of 27 October 2020.
The applicant submitted his formal show cause response on 20 April 2021. In his response the applicant understandably voiced his concerns in respect to the process particularly in light of the change of date and the circumstances in respect to the notifying of that change of date and the obtaining of information from the respondent. The applicant also provided his response in respect to the alleged incident on 27 October 2020.
It is the evidence of BNT that the respondent convened a meeting to discuss the applicant’s response to the Show Cause letter. The Chief Executive Officer (CEO) was consulted in relation to the recommendation regarding the applicant. It was recommended that the applicant’s employment be terminated, and the CEO’s support was sought. The CEO supported the decision to terminate the applicant’s employment.
There is no evidence that the applicant’s further submissions in respect to the allegation in October 2020 was referred to Ms Element and her opinion obtained and that any such opinion was considered prior to terminating the applicant’s employment and providing the final report to the Office of the Children's Guardian.
On 4 May 2021 the applicant received an email letter from the Principal, BOR, with a letter attached advising that the final reporting to the Office of the Children's Guardian was of a "non-adverse finding" on all allegations. The letter advised in respect to the allegation on 27 October 2020 that while the investigation concludes the touch did occur, on the basis that the touch cannot be sufficiently established as being sexual in nature, the only reasonable determination in respect to the allegation is a non-adverse finding.
On 5 May 2021 the applicant received a letter from the respondent requesting that he attend a meeting on 11 May 2021 with the respondent’s HR Director, BNT to discuss the outcome of the investigation.
It is the applicant’s evidence that he attended the meeting and was advised verbally by BOR that his employment with the respondent was to be terminated and was handed a letter of termination. The applicant was refused the option of giving his resignation.
It is the evidence of BOR that he regularly contacted the applicant to advise him of any advice that Ms Element had provided in regard to the expected date of her completed report.
The respondent had an obligation to keep the applicant informed of the progress of the investigation. I do not accept BOR’s evidence that he was in regular contact with the applicant informing him of the progress of the investigations. The correspondence and communications are more indicative of the respondent reacting to requests made by the applicant or on his behalf for information.
In my view the period of time which it took to complete the investigation was excessive and unreasonable especially when one considers that the police had completed their investigations in approximately two weeks. There is no evidence from Ms Element as to what delays were encountered in the investigation. It is the respondent’s evidence that the investigation appears to have been delayed by Ms Element only working three days per week as well as by the school holidays. As to what effect the school holidays in fact had on the conducting of the investigation there is little evidence. Ms Element was undertaking the investigation on behalf of the respondent and therefore her conduct was on behalf of the respondent for the purposes of s 11A(1). If Ms Element did not have the capacity to complete the investigation in a timely fashion the brief should not have been accepted.
As was observed in Irwin “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”. It was appropriate for the respondent to investigate the allegations made against the applicant. The manner in which the respondent conducted itself during those investigations was however not reasonable and was not fair.
I am of the view and find that the respondents conduct was not reasonable and the respondent has failed to make out the defence under s 11A(1) of the 1987 Act.
I direct pursuant to rule 132 of the Personal Injury Commission Rules 2021 that this decision be de-identified. The name of each of the parties as well as the names of the witnesses who have provided statement evidence are to be de-identified. Both parties wish for the decision to be de-identified. Given the nature of the issues in this matter I am of the view that it is in the interests of the applicant in particular for his health and wellbeing that the decision be de-identified.

[2024] NSWPIC 367

9 July 2024