CAA v Secretary, Department of Education
[2022] NSWPIC 143
•5 April 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | CAA v Secretary, Department of Education [2022] NSWPIC 143 |
| APPLICANT: | CAA |
| RESPONDENT: | Secretary, Department of Education |
| MEMBER: | Jacqueline Snell |
| DATE OF DECISION: | 5 April 2022 |
| CATCHWORDS: | WORKERS COMPENSATION - The applicant claims weekly benefits and medical and related treatment resulting from primary psychological injury sustained in the course of employment with the respondent; the applicant’s claim is disputed with the respondent raising defence under section 11A(1) of the Workers Compensation Act 1987 (1987 Act) relevant to discipline; Held– defence raised under s 11A(1) of the 1987 Act fails and the applicant has entitlement to weekly benefits and medical and related treating resulting from primary psychological injury sustained in the course of his employment with the respondent. |
| DETERMINATIONS MADE: | 1. It is not disputed the applicant sustained a primary psychological injury arising out of or in the course of his employment with the respondent, with a deemed date of injury of 25 November 2020, and that the applicant’s employment with the respondent was the main contributing factor to injury. 2. The applicant’s injury was not wholly or predominately caused by reasonable action taken by the respondent with respect to discipline. 3. It is not disputed the applicant has a total incapacity for work resulting from the injury. The respondent is to pay the applicant weekly compensation payable under s 36 and s 37 of the Workers Compensation Act 1987 from 25 November 2020 ongoing in accordance with the Workers Compensation Act 1987. It is agreed the applicant’s pre-injury average weekly earnings are $826.90. The respondent is to have credit for payments of weekly compensation payable under the Workers Compensation Act 1987 already paid to the applicant. 4. It is not disputed the applicant has an entitlement to medical or related treatment resulting from the injury and the respondent is to pay compensation payable under s 60 of the Workers Compensation Act 1987. |
STATEMENT OF REASONS
BACKGROUND
The applicant, CAA, was employed by the respondent, the Department of Education (the Department). In 2019 CAA commenced working as a Teacher’s Aide at [Redacted] on a 12 month contract, which was renewed for 2020. CAA did not return to work at the school after 25 November 2020, and his contract was not renewed for 2021. CAA is currently 43 years of age.
CAA sustained primary psychological injury arising out of or in the course of his employment with the Department, with a deemed date of injury of 25 November 2020. The circumstances of his injury allegedly involved the report and subsequent investigation into allegations made by a student that CAA had inappropriately touched her on multiple occasions.
CAA claims compensation payable under the Workers Compensation Act 1987 (1987 Act):
(a) weekly compensation payable under s 36 and s 37 from 25 November 2020 ongoing, and
(b) medical and related treatment payable under s 60 in the nature of a general order.
CAA’s claim is declined and he has been issued with notice dated 6 February 2021[1] in accordance with s 78 of the Workplace Injury Management and Workers Compensation Act1998 and he has also been issued with notice dated 20 July 2021[2] following a request to review the decision to decline his claim. In declining CAA’s claim for compensation the Department relies on s 11A(1) of the 1987 Act. In essence, the Department argues CAA has no entitlement to compensation as the psychological injury he sustained in the course of his employment with the Department was wholly or predominately caused by reasonable action taken by the Department with respect to discipline.
[1] Application to Resolve a Dispute (ARD) at p 9.
[2] ARD at p 14.
ISSUES FOR DETERMINATION
The parties agree the following issue remains in dispute:
(a) whether CAA has an entitlement to compensation payable under the 1987 Act in that the Department has raised defence under s 11A of the 1987 Act relevant to discipline.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
CAA’s claim for compensation came before me for teleconference on 1 February 2022. Ms Campbell appeared in the interests of CAA and Mr Lott appeared in the interests of the Department. CAA was present.
With CAA’s claim unresolved at teleconference, his claim came before me for conciliation conference/arbitration hearing on 24 February 2022. Mr Hickey of counsel appeared in the interests of CAA instructed by Ms Campbell and Ms Magee of counsel appeared in the interests of the Department instructed by Mr Lott. CAA was present and Ms Zreika from Allianz was present.
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 Personal Injury Commission (Commission) and considered in making this determination:
(a) ARD and attached documents,
(b) Reply and attached documents, and
(c) Application to Admit Late Documents dated 18 February 2022 lodged on behalf of the Department and attached documents (AALD).
Oral evidence
Neither party sought to adduce oral evidence or cross examine any witnesses.
FINDINGS AND REASONS
Brief review of evidence
Statement of CAA
CAA provided a statement dated 26 November 2021[3]. Relevant to his prior mental health CAA said:
“I have experienced mild anxiety previously, in approximately 2018 when we were having our son Hudson. We were much older parents, and I was concerned for the health of our baby.”
[3] ARD at p 1.
CAA outlined his interactions at school with a student, [Redacted] being her participation in a literacy program he conducted and playing lunchtime soccer in the team which opposed the team [Redacted] was on. CAA said [Redacted] “hated” the literacy program and would attempt to get out of attending “on every occasion”. CAA explained that after each session of the program he would complete a progress sheet, and on most occasions he would report [Redacted] did not participate. He said [Redacted] would swear at him and he said she had called him a pedophile in about early November 2020, which he reported.
On 23 November 2020 an email was sent to five staff members, including CAA, advising that [Redacted] would not attend the literacy program and would not play lunchtime soccer. On 25 November 2020, just before lunchtime and when he was outside the classroom, CAA was advised by [Redacted] of Stage 3, that he was required to attend the Principal’s office with a support person when he finished at 2.30pm. CAA asked [Redacted] attend the meeting in her capacity as support person.
The meeting was attended by [Redacted] and CAA. [Redacted] advised CAA [Redacted] had made an allegation that in the last few months he had inappropriately touched her on multiple occasions. On enquiry, he was told by
[Redacted] that [Redacted] had alleged:“i. I grabbed [Redacted] from behind and she could feel me in her back;
ii. I constantly grabbed her hand;
iii. I put my hand up the front of her shirt on the playground;
iv. I touched her bottom;
v. I called her ‘darl’.”
CAA denied all allegations, save for calling [Redacted] ‘darl’ as he often called the girls ‘darl’ and the boys ‘mate’. CAA was shocked and said he “did not take in all the details of the allegations that were put towards me”. [Redacted] told CAA he would be assigned “somewhere else and not to have contact with [Redacted]”.
CAA said:
“After the initial shock of the allegations, I did compose myself. I certainly understood the need for the Department to refer the matter to the police to investigate such allegations. I also knew I had not done anything wrong, and I was confident the investigation would find no wrongdoing on my behalf.”
CAA was not provided with any written confirmation of the allegations. He was not provided with a timeframe as to when he could expect police contact. On request, he told
[Redacted] he would provide a statement, saying he had nothing to hide.CAA contacted the Employee Assistance Program (EAP) contact he had been provided with by [Redacted] and when he explained to the contact what had occurred, she told him:
“I have worked for DOCS in the past, for 20 odd years, they always believe the child over the adult.”
CAA became quite distressed about his telephone conversation with the EAP contact. He worried that he would lose his ability to work with children and damage to his reputation. He worried about the effect this would have on his family, with his partner a teacher at a different school in the town. His negative thoughts spiralled and he experienced suicidal ideation.
CAA sought medical assistance from Dr Fraser who certified him totally incapacitated for work and provided him with a script for anti-depressant medication and sleeping tablets.
CAA heard nothing from the school and on 21 December 2020, the police attended his home, interviewed him about the allegations made against him, and laid no charges against him. CAA sent a message to [Redacted] to advise her that he had been “cleared” by the police, with response “that was wonderful news and to have a lovely Christmas”.CAA said of [Redacted] that he was concerned about retribution from her community. He worried her family members might come to his house. He said he didn’t go out in public as he worried someone might hurt him, hurt his young son, or hurt him in front of his son.
On 1 March 2021, CAA received a letter from the Department in which he was advised that allegations had been made against him that were to be investigated. On 10 May 2021 he received a letter from an investigator for the Department that particularised the allegations made against him, which were “somewhat different” to those particularised at the meeting on 25 November 2020. CAA provided instructions to his solicitor to respond to this correspondence. In June 2021 CAA received a telephone call from the investigator for the Department who advised him that she had advised her supervisor of her findings and a decision would be “forthcoming shortly”. With her explanation that he “always had a right to appeal their decision” CAA assumed a negative outcome, which distressed him.
On 5 July 2021, CAA received a further telephone call from the investigator. She told him the investigation outcome had been forwarded to his solicitor. As CAA was anxious to know the decision she agreed to send him a copy but told him to have a support person with him when he reviewed it, which reiterated his assumption of a negative outcome.
CAA said of the 20 minute wait before he received the investigator’s email “my heart was racing, and I was very anxious”. The investigator telephoned CAA again in the afternoon to confirm that he had understood the contents of correspondence she had forwarded to him, which he found strange as the correspondence informed him he “was cleared of any wrongdoing”.CAA also explained that while he had been notified prior to being told about the allegations against him that his contract with [Redacted] would not be renewed, he had been hopeful that it would in fact be renewed by the Department in the early new year, particularly so as all the other Teacher’s Aides who wished to have their contracts renewed had achieved this.
Communications regarding allegations
In a letter dated 1 March 2021[4] the Director Investigations with the Department advised
CAA that an investigation was to be undertaken into the allegations of “inappropriate physical contact with a student” while working at [Redacted]. CAA was advised by the Department that the Professional and Ethical Standards Directorate (PES) who were undertaking the investigation would keep him updated at regular intervals, being “at least once per term”. CAA was advised he was able to provide information to the investigator “within 14 days of receipt of the letter, which could include the names and contact details of witnesses who had direct knowledge of the matters to be investigated who he considered should be interviewed”. CAA was provided with two “directions”:“You ensure your interactions with students remain professional at all times. This includes not engaging in any type of inappropriate physical contact with students.
You do not discuss the circumstances surrounding the matter currently under investigation with any person except your nominated support person, union or legal representatives, PES staff or [Redacted].”
[4] ARD at p 28.
In a letter dated 10 May 2021[5] the investigator with the Department particularised the allegations of inappropriate physical contact and inappropriate actions made by [Redacted]:
[5] ARD at p 30.
“(a) Touched her on the area of the vagina, on the outside of clothing.
(b) Rubbed her back and touched her bottom on the inside and outside of her clothing.
(c) Put your hand inside her shorts, on her hip.
(d) Hugged [Redacted] front to front so she could feel your penis pressed against her.
(e) Touched [Redacted], when at MacqLit, by resting your leg on her leg.
(a) Firmly grabbed and puled [Redacted] hand and arm, when at MacqLit.
…
a. Called [Redacted] ‘darl, ‘darling’ and ‘babe’, despite being asked by her to stop.
b. Flicked your tongue in and out while looking at her.
CAA was invited to respond to these allegations within 14 days”.
In an email from [Redacted] dated 31 May 2021, in response to CAA’s request for information about the meeting on 25 November 2020, [Redacted] forwarded:
“my short allegation notes and [Redacted] shorthand notes from the meeting with you to raise the original allegations with you.”
The notes outline the allegations canvassed at the meeting:
“Firmly touching and pulling [Redacted] hand/arm @ Macqlit”
Consistently calling her darl/darling,
Touching her between her lower back and bottom out at soccer.
Rubbing her bottom and hip with his hands.
Put his hand under her shirt.
Cuddled her and held her so his penis pushed into her wrist.”
In a letter from his solicitors dated 31 May 2021[6] CAA denied all allegations canvassed in the investigator’s letter, save for using the terms “darl” and “darling”, and as regards his use of those terms, CAA denied the allegation he continued using the term after being asked to stop by [Redacted].
[6] ARD at p 36.
In a letter dated 2 July 2021[7], which was forwarded to CAA by the investigator the same day, the Director Investigations with the Department advised CAA “a finding of misconduct has not been made out”.
Treating medical evidence
[Redacted]
[7] ARD at p 38.
CAA came under the general medical care of Dr Fraser who practises out of [Redacted]. The medical centre’s clinical records are in evidence[8]. It is evident
CAA has suffered previous psychological injury in the context of his partner’s pregnancy and the subsequent birth of his young son, for which he was referred for psychological counselling. An Anxiety and Depression checklist completed on 13 March 2020, indicated CAA continued to harbour concern about the safety of his son.[8] ARD commencing a p 63.
In an email dated 1 December 2020[9] addressed to the medical centre, CAA wrote:
“since this accusation my anxiety has gone through the roof. I was supposed to go to my staff Christmas party on the weekend. I got halfway there and turned around and didn’t go as the anxiety was too much and I felt sick… I’m worried for mine and my families safety as the community this child belongs to can be judging and quick to act first. My school is behind me but it really doesn’t matter what they think. The police haven’t contacted me regarding this issue.”
[9] Reply at p 1.
In a letter dated 24 December 2020[10] Dr Fraser wrote in response to specific questioning that CAA was suffering from an adjustment disorder with anxiety and provided opinion the main cause of his psychological injury were “work related factors” in the context of the allegations of misconduct CAA was advised of at the meeting on 25 November 2020.
[10] Reply at p 47.
Sean Kijurina
CAA came under the care of Mr Kijurina, Mental Health Clinician, on 3 April 2020 and his reports dated 22 April 2020[11] and 30 September 2020[12] are in evidence. At initial presentation CAA was described as presenting with a generalised anxiety and low mood “in addition to some specific anxieties relating to his young son Hudson”. While CAA consulted with Mr Kijurina on six occasions between April and August with some focus spent on “remedying a poor diet”, Mr Kijurina was unable to arrange further appointments and
Mr Kijurina advised Dr Fraser the referral would be closed.[11] Reply at p 42.
[12] Reply at p 43.
Psychology Senang
CAA came under the psychological care of Quentin Dignam who practises out of Psychological Senang. Mr Dignam’s clinical records are in evidence[13]. CAA initially consulted with Mr Dignam on 8 February 2021. Dr Dignam noted of the referral:
“Referred for adjustment disorder developed following allegation of ‘inappropriate contact with a child’ in late 2020, subsequent loss of job/contract and various psychological and social impacts.”
[13] ARD at p 202.
In his report dated 17 February 2021[14] Mr Dignam described CAA as presenting with an acute stress reaction becoming an adjustment disorder with marked depressive and anxiety features following an unsubstantiated complaint in November 2020 of abuse of a student.
Mr Dignam described this complaint as leading to the non-renewal of CAA’s contract, marked anxiety and depression, fear of recrimination, physical assault and loss of reputation.[14] ARD at p 201.
CAA consulted with Mr Dignam on only three occasions, and when last reviewed on 15 March 2021, Mr Dignam noted CAA’s claim for compensation had been declined and that the allegations against him were being investigated “but does not know process”.
CAA reportedly told Mr Dignam that the comment made by the EAP provider to who he had been referred by [Redacted] had been “the worst day of his life” as he had persistent thought of being “‘being labelled for life’ as a ‘child molester’”.
Dr Selwyn Smith
CAA came under the psychiatric care of Dr Smith. Dr Smith provided a report dated 7 April 2021[15] following CAA’s consultation with him on 30 March 2021. He described
CAA as presenting in a “most anxious and agitated state”, with a history of being the subject of a complaint by an 11 year old indigenous pupil and concern he had not been able to reintegrate into any work with the Department pending investigation. Dr Smith reported the impact on CAA as a result of the allegations made “has been significant” and noted CAA was “fearful of going out lest he meets the family of the girl involved”.[15] Reply at p 53.
Dr Smith provided diagnosis of adjustment disorder with mixed anxiety and depressed mood and provided opinion CAA’s psychological injury was “directly a result of the untoward events that have occurred at his place of work”.
Banksia Mental Health Unit
CAA attended the Mental Health Unity at Tamworth Hospital on 9 April 2021. The unit’s clinical records are in evidence[16]. CAA was admitted as a voluntary patient with depressive symptoms and suicidal ideation. The triage nurse noted:
“The onset of CAA symptoms occurred following an accusation of inappropriate conduct against a student in his work as teacher’s aide. he has been cleared by Police but is unable to return to work due to an ongoing investigation by the Department of Education. This has led to financial stressors being unable to find work.”
[16] ARD at p 412.
However, with CAA uncomfortable in the unit, arrangement was made for his discharge with plan he would be admitted to Warners Bay Private Hospital.
Brisbane Waters Private Hospital
CAA was in fact admitted to Brisbane Waters Private Hospital between 21 April 2021 and 12 May 2021, where he came under the psychiatric care of Dr Mason who provided diagnosis of Adjustment Disorder with secondary depression. The hospital’s clinical records are in evidence[17]. On discharge, Dr Mason provided a brief summary of admission:
“CAA was admitted for stress and anxiety and panic attacks after an incident that occurred at work. An accusation was made against him by a student at a school where he worked as a teacher's aide. A student at the school had made an accusation against CAA. CAA describes the student making a false accusation against him of inappropriate sexual touching which he is quite adamant never happened and had caused a significant amount of distress and meant that he was no longer able to work at the school. He had a police investigation and they cleared him of any charges but the school is continuing to follow their process and he has been off work since then. His mood has spiralled downwards with high levels of anxiety, panic attacks and social isolation as a result.”
Independent medical evidence
Dr Clayton Smith
[17] ARD at p 209.
CAA was psychiatrically assessed by Dr Smith in his capacity as independent medical examiner on 15 February 2021. Dr Smith provided a report dated the same day[18]. Dr Smith’s report is provided at a time before CAA received correspondence from the Department regarding the commencement of the investigation.
[18] Reply at p 56.
Hence, Dr Smith reported a history of injury:
“CAA said on 25 November 2020, he was asked to see the Principal and was told he would need a support person. He said he went into the meeting and the Principal told him that there was an allegation of sexual assault made by a student. CAA said he felt hurt and in shock. He said he was given the phone number for the Employee Assistance Programme and he called that afternoon. He said the counsellor he spoke to told him that she had worked for the Department of Community Services for twenty years and most times they believe the child. CAA said knowing that he was innocent , hearing from her was unhelpful and distressing.
CAA said the matter was referred to the Employee Performance and Conduct unit and a police investigation which went on for about a month. He said he was cleared three days before Christmas. He said he spent more than a month thinking that he would be ‘locked up for nothing and his family and career would be destroyed’. He said although being cleared was something of a relief, he told me ‘the damage is done’.”
Dr Smith also described the symptoms reported by CAA:
“CAA said from the moment he was informed of the allegation he felt shocked and anxious. He said he subsequently developed irrational fears about the his own and his family’s safety . He said because the girl making the allegations belongs to the local Aboriginal community, he is worried they will see him being cleared as " getting away with it". He said he is worried that something will happen to him if he runs into a member of the community, particularly if he is with his son.”
Dr Smith provided diagnosis of adjustment disorder with anxiety and depressed mood and said CAA’s “anxiety and depressive symptoms began after notification of the allegation and have failed to remit”. Dr Smith provided opinion:
“The predominant cause of his adjustment disorder were allegations of sexual assault from a student which were unsubstantiated. His distress has been compounded by the perceived impact on his reputation and fears or recrimination from the local community.”
Dr Martin Allan
CAA was psychiatrically assessed by Dr Allan in his capacity as independent medical examiner on 24 May 2021. Dr Allan provided a report dated 26 May 2021[19]. Dr Smith’s report is provided at a time after CAA received correspondence from the Department regarding the commencement of the investigation but before he had been advised of the investigation outcome. Dr Smith reported a consistent history as to the circumstance of injury, but noted too, receipt by CAA of the letters dated 1 March 2021 and 10 May 2021 regarding the investigation into the allegations, which were particularised to include allegations not raised at the meeting on 25 November 2020. Dr Allan said of CAA:
“CAA confirms that he has had no resolution of his distress since November and the recent allegations raised against him only serve to worsen his mental state.”
[19] ARD at p 40.
Dr Allan also said of CAA:
“… he worries greatly about how the local community may view him. He feels that his family and himself is at risk. He worries about the community from where the young female has made the allegations is from and he worries that they will believe that he is a predator and seek some form of retribution.”
Dr Allan provided diagnosis of major depressive disorder and considered CAA’s employment with the Department was the main contributing factor to injury. He noted:
“He remains under investigation by the department and despite being cleared by the police, he remains concerned about his future while his difficulties are ongoing and whilst he continues to reside in his local area.”
In a supplementary report dated 11 November 2021 in response to a letter of instructions dated 2 November 2021 from CAA’s solicitors, Dr Allan provided opinion it was the meeting on 25 November 2020 and sequelae coupled with the manner in which the allegations made against him were investigated by the Department, which were “collectively” the main contributing factor to the injury sustained by CAA. He said the difficulties CAA experienced were:
“…extremely stressful, anxiety provoking and challenging for CAA to deal with and have to contend with over a prolonged period of time with extremely limited support and indeed an employee assistance program support which in itself was one of the stressful factors contributing to his problems.”
Submissions
Mr Hickey and Ms Magee made oral submissions, which I have considered. I am grateful to counsel for the assistance provided to me in this particular mater. A recording of counsels’ submissions is available to the parties.
Determination
Defence raised under s 11A(1) of the 1987 Act
It is not disputed CAA sustained psychological injury arising out of or in the course of his employment with the Department and that his employment with the Department was the main contributing factor to his injury. The Department has however raised defence under
s 11A(1) of the 1987 Act relevant to discipline and the Department has the onus of establishing such defence (see Pirie v Franklins Ltd[20] and Department of Education and Training v Sinclair[21] ). There are two aspects relevant to defence raised under s 11A(1) of the 1987 Act.[20] [2001] NSWCC 167; (2001 22 NSWCCR 346.
[21] [2005] NWCA 465 (Sinclair).
Firstly, the injury must be “wholly or predominantly caused” by the Department’s actions regarding one of the categories referred to in s 11A(1) and in CAA’s case the Department relied on “discipline”. Principles regarding the “wholly or predominately caused” aspect of s 11A(1) of the 1987 Act were discussed in Hamad v Q Catering Limited[22] with comment medical evidence is required to determine this causation issue. It is accepted “wholly” and “predominately” are different concepts[23] and it is accepted the phrase “wholly or predominantly caused” means “mainly or principally caused” with the test of causation to be applied is that described in Kooragang Cement Ltd v Bates[24]; Ponnan v George Weston Foods Ltd[25], and Temelkov v Kemblawarra Portuguese Sports and Social Club Ltd[26].
[22] [2017] NSWWCCPD 6.
[23] Smith v Roads and Traffic Authority of NSW [2008] NSWWCCPD 130.
[24] (1994) 35 NSWLR 452; (1994) 10 NSWCCR 796.
[25] [2007] NSWWCCPD 92.
[26] [2008 NSWWCCPD 96.
In 2109 CAA commenced working as a teacher’s aide at [Redacted]. On 23 November 2020 an email was circulated to a small number of school staff members, including CAA, in which notice was given that a student, [Redacted], would no longer attend a particular literacy program or play lunchtime soccer. The literacy program referred and the lunchtime soccer were activities in which CAA was involved.
On 25 November 2015 and just before lunchtime, CAA was told by [Redacted] to attend a meeting with [Redacted] and to bring a support person with him. Anxious about the meeting, CAA attended early with [Redacted] as his support person. In the meeting
CAA was verbally advised of allegations made by [Redacted] against CAA, most of which could be described as inappropriate behaviour that was sexual in nature. Save for accepting that he had called [Redacted] ‘darl’, CAA denied all the allegations made against him. He was told by [Redacted] the allegations would be investigated and that the police would contact him. CAA was recommended by [Redacted] to contact EAP, which he did that afternoon, with an extremely negative outcome.CAA subsequently consulted with Dr Fraser, who reported on 24 December 2020 that he had diagnosed CAA with adjustment disorder with anxiety, with the main cause of
CAA’s psychological injury being “work related factors” in the context of the allegations of which CAA was advised in the meeting on 25 November 2020.CAA was referred for psychological counselling with Mr Dignam who reported on 17 February 2021 he had diagnosed CAA with adjustment disorder with marked depressive and anxiety features following unsubstantiated complaint in November 2020 of abuse of a student. Mr Dignam reported CAA had said the comment made to CAA by the EAP counsellor had been “the worst day of his life”. When last reviewed by Mr Dignam on 15 March 2021, CAA was aware the allegations were now being investigated by the Department.
CAA was referred for psychiatric review by Dr Smith on 30 March 2021. Dr Smith reported on 7 April 2021 he had diagnosed CAA with adjustment disorder with mixed anxiety and depressed mood, which was “directly a result of the untoward events that have occurred at his place of work” in the context of allegations of misconduct made against him by a student, which were being investigated by the Department.
CAA was briefly admitted to the mental health unit at Tamworth Hospital on 9 April 2021, with the triage nurse noting an onset of symptoms following allegations of misconduct made against him by a student, which were being investigated by the Department despite CAA having “been cleared by Police”.
CAA was admitted to Brisbane Waters Private Hospital between 21 April 2021 and 12 May 2021. His treating psychiatrist also noted an onset of symptoms following allegations of misconduct made against him by a student, which were being investigated by the Department despite the police having “cleared him of any charges”. Dr Mason wrote:
“His mood has spiralled downwards with high levels of anxiety, panic attacks and social isolation as a result.”
CAA was assessed by Dr Smith in his capacity as independent medical examiner on 15 February 2021. Dr Smith provided diagnosis of adjustment disorder with anxiety and depressed mood and while Dr Smith provided opinion the predominant cause of CAA’s psychological injury were the unsubstantiated allegations of sexual assault made against him, he accepted CAA’s “distress was compounded by the perceived impact on his reputation and fears of recrimination from the local community”. Of note is that CAA’s assessment with Dr Smith took place before the Department commenced the investigation.
CAA was assessed by Dr Allan in his capacity as independent medical examiner on 24 May 2021. Dr Allan provided diagnosis of major depressive disorder. Dr Allan reported there had been no resolution in CAA’s distress since he was advised of the allegations in November 2020. Dr Allan noted CAA remained under investigation by the Department and said CAA harboured real concern about retribution from the family of [Redacted]. In a supplementary report, Dr Allan provided opinion the main contributing factor to the psychological injury CAA had sustained was “collectively” the meeting occurring on 25 November 2020 and sequelae, coupled with the manner in which the Department conducted the investigation.
The central issue in this matter is discipline and when considering the opinions provided by CAA’s treaters, Dr Fraser, Mr Dignam and Dr Smith, the histories provided by the triage nurse at the Mental Health Unit at Tamworth Hospital and Dr Mason at Brisbane Waters Private Hospital, and opinion provided by Dr Allan in his capacity as an independent medical examiner, I accept CAA’s psychological injury was “wholly or predominantly” caused by action taken or proposed to be taken by the Department with respect to “discipline”, which extends to the entire disciplinary process, including the course of the Department’s investigation[27]. I do not accept CAA’s psychological injury was “wholly or predominantly” caused by notification of the allegations at the meeting occurring on 25 November 2020 only. Although Dr Smith in his capacity as independent medical examiner provided opinion on 15 February 2021 the predominant cause of CAA’s psychological injury “were allegations of sexual assault of a student which were unsubstantiated”, at the time of assessment CAA had yet to be advised by the Department of the Department’s investigation and accordingly,
I consider Dr Smith’s opinion to be of quite limited evidentiary weight.[27] Sinclair; Yeo v Western Sydney Area Health Service [199] NSWCC 1;(199) 17 NSWCCR 573.
As I accept CAA’s psychological injury was “wholly or predominantly” caused by the Department’s actions regarding discipline, including the course of the Department’s investigation, the Department is required to establish the Department’s actions regarding discipline were “reasonable”.
Considering the meaning of reasonableness, in Sinclair Spigelman CJ observed that one must look at the entire process, which includes looking at the circumstances surrounding the action, both before and after the action (Burton v Bi Lo Pty Ltd[28]; Melder v Ausbowl Pty Ltd[29]) and in Irwin Gerahty J 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 employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[28] [1998]NSWCC 13.
[29] [1997]NSWCCR 454.
In Northern New South Wales Local Health Network v Heggie[30] Sackville AJA usefully set out the following statements of principle regarding s 11A (1) at [61]:
“Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action or any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
[30] [2013] NSWCA 225; 12 DDCR 95.
While it may be that certain steps taken by the Department relevant to the meeting that occurred on 25 November 2020 may have been “reasonable” (CAA was provided with the opportunity to bring a support person to the meeting and was provided with EAP contact at the meeting), CAA was only notified of the meeting a few hours before it was scheduled to occur, was not notified of the reason for the meeting despite the serious nature of the allegations, and was not provided with written particulars of the allegations or the Department’s proposed investigative process, either at the meeting or anytime shortly afterwards. I do not consider the action taken by the Department relevant to the meeting that occurred on 25 November 2020 to be reasonable. I am of the view it would have been reasonable in the circumstances for the Department to have provided CAA with written reason for the meeting, afforded him sufficient time to properly prepared for such a meeting and provided him with written particulars of the allegations and proposed investigative process, either in the meeting or very shortly thereafter.
While it may also be reasonable for the Department to undertake its own investigation into the allegations despite notification by CAA on 21 December 2020 that he had been “cleared” by the police, it was not until 1 March 2021 (more than three months after the meeting on 25 November 2020) that CAA received communication from the Department in which he was advised of a pending investigation, it was not until 10 May 2021 (more five months after the meeting on 25 November 2020) that CAA received further communication from the Department in which he was provided written particulars of the allegations against him, which it is fair to say, included allegations of a more serious nature than had previously been verbally communicated to him at the meeting on 25 November 2020, and it was not until 2 July 2021 (more than seven months after the meeting on 25 November 2020) that CAA was notified of the Department’s decision that “a finding of misconduct has not been made out”. I do not consider the action taken by the Department relevant to the investigation into the allegations to be reasonable. Noting the seriousness of the allegations, I am of the view it would have been reasonable in the circumstances for the Department to have provided much earlier written notice to CAA of the pending investigation and the particulars of the allegations, and it would have been reasonable for the Department to have concluded its investigation and provided notice to CAA of the outcome of the investigation in a considerably shorter time frame than the seven month time frame occurring.
For the reasons discussed above I am not satisfied the Department has discharged the onus of proof required of the Department, and the Department cannot rely on defence raised under s 11A(1) of the 1987 Act.
Capacity
It is not disputed CAA has a total incapacity for work resulting from the psychological injury he sustained arising out of or in the course of his employment with the Department, with deemed date of injury of 25 November 2020. As I have determined the Department cannot rely on defence raised under s 11A(1) of the 1987 Act, CAA has an entitlement to weekly compensation payable under s 36 and s 37 of the 1987 Act from 25 November 2020 to date and continuing in accordance with the 1987 Act. It is agreed between the parties that
CAA’s pre-injury average weekly earnings were $826.90.
Treatment
It is not disputed CAA has an entitlement to medical or related treatment resulting from the psychological injury he sustained in the course of his employment with the Department, with a deemed date of injury of 25 November 2020, and as I have determined the Department cannot rely on defence raised under s 11A(1) of the 1987 Act, CAA has an entitlement to compensation payable under s 60 of the 1987 Act, including past medical or related treatment particularised at $31,196.26.
SUMMARY
It is not disputed the CAA sustained a primary psychological injury arising out of or in the course of his employment with the Department, with a deemed date of injury of 25 November 2020, and that CAA’s employment with the Department was the main contributing factor to injury.
I have determined CAA’s injury was not wholly or predominately caused by reasonable action taken by the Department with respect to discipline, and accordingly the Department cannot rely on defence raised under s 11A(1) of the 1987 Act.
It is not disputed CAA has a total incapacity for work resulting from the injury. As I have determined the Department cannot rely on defence raised under s 11A(1) of the 1987 Act, the Department is to pay CAA weekly compensation payable under s 36 and s 37 of the 1987 Act from 25 November 2020 ongoing in accordance with the 1987 Act. It is agreed
CAA’s pre-injury average weekly earnings are $826.90. The Department is to have credit for payments of weekly compensation payable under the 1987 Act already paid to CAA.
It is not disputed CAA has an entitlement to medical or related treatment resulting from the injury. As I have determined the Department cannot rely on defence raised under
s 11A(1) of the 1987 Act, the Department is to pay compensation payable under s 60 of the 1987 Act.
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