Compass Group Healthcare Hospitality Service Pty Limited v Beaton
[2015] ACTSC 18
•18 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Compass Group Healthcare Hospitality Service Pty Limited v Beaton |
Citation: | [2015] ACTSC 18 |
Hearing Date: | 18 June 2014 |
DecisionDate: | 18 February 2015 |
Before: | Burns J |
Decision: | The appeal is dismissed with costs. |
Category: | Principal Judgment |
Catchwords: | APPEAL – Appeals From and Control Over Magistrates –appeal dismissed. WORKERS’ COMPENSATION – Workers’ Compensation Generally – mental injury arising out of or in the course of employment – whether the respondent is a person of normal fortitude – whether employer’s conduct was reasonable. |
Legislation Cited: | Evidence Act2011 (ACT) s 64 Magistrates Court Act1930 (ACT) Part 4.5, ss 274 (2), 276 |
Cases Cited: | Fox v Percy (2003) 214 CLR 118 |
Parties: | Compass Group Healthcare Hospitality Service Pty Limited (Appellant) Catherine Joyce Beaton (Respondent) |
Representation: | Counsel Mr A Muller (Appellant) Mr S Pilkinton SC and Mr J Sainty (Respondent) |
| Solicitors Sparke Helmore Lawyers (Appellant) Blumers Personal Injury Lawyers (Respondent) | |
File number: Decision under appeal: | SCA 112 of 2013 Court: ACT Magistrates Court Before: Magistrate Lunney Date of Decision: 29 November 2013 Case Title: Catherine Joyce Beaton v Compass Group (Australia) Pty Ltd Citation: WC 12/174 |
Burns J:
Background
On 29 November 2013 a Magistrate made the following findings:
(a)At all material times, the respondent was a worker for the purposes of the Workers Compensation Act 1951 (ACT) (the Act).
(b)On 14 March 2012, she sustained mental injury being a generalised anxiety disorder and associated panic attacks with agoraphobia and major depressive disorder arising out of or in the course of her employment with the appellant.
(c)As a result of that injury she has been totally incapacitated for work from the date of injury to the date of trial and continuing.
(d)She is entitled to payment of weekly compensation in accordance with the Act for that period together with payments of reasonable medical and like expenses.
The appellant has appealed from the findings made by the Magistrate on the following grounds:
(a)His Honour erred in failing to make findings as to the content of the discussion at the meeting on 14 March 2012 (the meeting) with sufficient clarity to enable proper understanding of the basis for his conclusion that the meeting was not conducted in a reasonable fashion.
(b)His Honour erred in failing to make a finding as to the respondent’s emotional state during the course of the meeting with sufficient clarity to enable a proper understanding of the basis for his conclusion that statements made by the respondent in the course of the meeting should have alerted the appellant’s manager that it was desirable to make some inquiry as to the respondent’s welfare and her capacity to continue with the meeting.
(c)His Honour erred in failing to provide sufficient reasons for concluding that the respondent displayed an adverse reaction and an emotional response to the meeting process such that a different approach to the meeting was called for.
(d)His Honour erred in failing to deal with the challenge made to the reliability of the applicant’s evidence as to factual matters, given her accepted psychological vulnerability.
(e)His Honour’s conclusion that the appellant’s manager was mistaken regarding prior warning of the meeting being given to the respondent was against the evidence or the weight of the evidence.
(f)His Honour erred in finding at paragraph 49 of his reasons that there was objective evidence available during the course of the meeting that the respondent was not a person of normal fortitude.
It was common ground that the respondent was first employed by the appellant at Calvary Hospital in 2008 and was subsequently promoted on a number of occasions until, at the time of the incident giving rise to these proceedings, she was employed as a site manager. It was clear from the evidence before the Magistrate that in the years leading up to 2012 the respondent had been subject to a considerable degree of stress in her marriage and financial affairs. Her husband was an alcoholic who lost his employment in 2008, causing considerable financial difficulties. During the period of the respondent’s employment with the appellant she attended Calvary Hospital on many occasions out of work hours for treatment. Records indicated that these attendances involved marital disharmony, depression, excessive consumption of alcohol and prescription drugs, suicidal ideation and self harm. The Magistrate found that the respondent had been able to separate the problems and stressors in her personal life from the requirements of her workplace prior to the meeting in March 2012, a finding which has not been challenged by the appellant.
On 14 March 2012, a meeting was conducted between the respondent and that the appellant’s Human Resources Manager at which time complaints about her supervision of staff and her interpersonal relations were aired. The Magistrate found that, as a consequence of that meeting, the respondent sustained mental injury, being generalised anxiety disorder and associated panic attacks with agoraphobia and major depressive order. That finding is not the subject of challenge in this appeal. Before the Magistrate, the appellant submitted that the respondent was not entitled to compensation under the the Act, because any injury sustained by her was the result of reasonable action taken by the appellant employer in relation to disciplining the respondent.
The applicable legislation
The Act provides that an employer is liable to pay compensation under the Act if a worker of the employer suffers personal injury arising out of, or in the course of, the worker’s employment: s 31 (1). The definition of injury is found in s 4 of the Act:
(1)In this Act:
injury means a physical or mental injury (including stress), and includes aggravation, acceleration or recurrence of a pre-existing injury.
(2)In this section:
mental injury (including stress) does not include a mental injury (including stress) completely or mostly caused by reasonable action taken, or proposed to be taken, by or on behalf of an employer in relation to the transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of a worker or the provision of an employment benefit to a worker.
The relevant evidence
The respondent testified that on 13 March 2012 she received an email from AF asking the appellant to book a room at Calvary Hospital for 14 March 2012, but did not advise the purpose of the booking. On 14 March 2012 she said that AF came to her office at Calvary Hospital and said “ Cate, can you come with me, I’d like to have a chat”. The respondent testified that she asked AF whether she would need to take a pen and paper, to which AF replied “No, no, it’s just a chat”. They then proceeded to the meeting room which had previously been booked by the respondent. This room was approximately 200 metres away from the respondent’s office in the Hospital. AF sat at a desk, and the respondent sat opposite her. No one else was present during the course of the meeting. AF took notes of the meeting as it took place. Those notes were produced and tendered as an exhibit before the Magistrate. The respondent said that AF told her there had been various telephone calls from a number of staff making complaints about the respondent. AF went on to tell the respondent that those complaints included complaints of bullying and harassment in the workplace. The respondent testified that she had not been warned or made aware of any allegations made against her prior to this meeting, and had been given no prior warning that these issues were to be discussed. She said that she was shocked by the allegations, and as the meeting progressed she felt “degraded, intimidated, harassed, hurt and disbelieved”. The meeting continued without a break for two hours. Immediately after the conclusion of the meeting, the respondent felt she could not continue in her work that day, and went home. She said she felt devastated, “it was like my whole world had fallen in”. There is clear evidence, not the subject of challenge in these proceedings, that her mental health then significantly deteriorated.
In cross-examination, the respondent denied the suggestion that AF had, prior to 14 March 2012, told her that allegations had been made by a former employee, TU. She gave the following evidence about the way in which the meeting had been conducted:
And then when the meeting started, she explained to you that it was an investigation only, a fact-finding exercise? ---No, she – in the meeting when I got to the room, she said that she had received numerous phone calls from employees that had made allegations or complaints about me.
Well, do you deny that she indicated to you at the start of the meeting that it was an investigation only, a fact-finding exercise? ---No.
Are you agreeing or disagreeing with that proposition? ---I’m disagreeing with that.
All right. Now, yesterday, you were provided with a copy of some notes purporting to be a summary of the discussion that occurred and you said they were generally accurate and those notes refer to the meeting opening with a comment to you to the effect that it was an investigation only. Do you now say that they are inaccurate in that regard? ---Part of what was written I believed to be accurate, that she did express that – in the beginning of the meeting that staff – certain staff members had made phone calls to her expressing that there had been complaints about me.
And at the start of the meeting, it was indicated to you that it was an investigation only and a fact-finding exercise? ---No.
You know that [AF] is at court today and she will be giving evidence in these proceedings? ---Yes.
And you still maintain that wasn’t described to you? ---Absolutely. Yes.
That the meeting wasn’t couched in those terms. It was – I withdraw that. In the document that you have seen yesterday that provides a summary of the meeting, it is apparent that a number of topics were raised with you. Is that correct? ---Sorry, can you repeat that?
There were a number of different topics raised with you in the course of that meeting? ---Yes.
And I think you said that you thought the meeting went for two hours. Is that your evidence? ---Thereabouts, yes.
So it was quite a long discussion? ---Yes.
And, indeed, a two-hour discussion would have covered a lot more detail than is contained in the summary document you were shown yesterday? ---Yes.
As each of the topics that are described in that summary document were raised with you, you were given an opportunity to respond? ---No, not always.
Well, what I want to suggest to you is that in relation to each topic, you were asked for feedback? ---I was and as I gave some answers, I was spoken over the top of and not – being – I was not given the opportunity to finish explaining the allegation.
Well, I suggest to you that in relation to each topic that was raised with you, the assertion was put and you were given an opportunity to respond to that assertion? ---As I said, I was not given full opportunity to explain my position and quite frankly had no idea what she was talking about.
Well, with many of the allegations, you denied them, didn’t you? ---Absolutely.
And the notes record in relation to some allegations you did more than deny them, you provided a response? ---In some of them I did, yes.
And you provided a different version of events to the one that was put to you? ---I don’t understand what you’re suggesting.
With some of the assertions that were put to you, you provided a response detailing a different version of the events that were described. You said, “No, that wasn’t what happened, this is what happened”? ---Well, a lot of – a lot of the questioning that was done at the time wasn’t really a question so I – I didn’t understand what she was trying to get from me.
You knew that this wasn’t a disciplinary meeting, didn’t you? ---No, I – I believed it was a chat.
That’s right, you knew it wasn’t a disciplinary meeting. It was a discussion, wasn’t it? ---I believed it was a chat and – I couldn’t - - -
And indeed, it was a chat? ----- - I couldn’t – well, no, it ended up not being a chat.
When you say it wasn’t a chat, you mean it was a discussion that involved some very serious issues? ---What I mean is that a chat turned into an attack.
You see, what I want to suggest to you is that you were the one who became aggressive during the course of the meeting, raising your voice? ---Not at all.
You disagree with that? ---Totally.
And that the discussion became heated because you became heated in your responses to the allegations that were raised with you? ---No, I – I was upset, I - - -
You were angry?---No, I wasn’t angry. I was not angry, I was hurt.
You were hurt in relation to some of the assertions, you didn’t realise that people had interpreted your behaviour in the way that was being put to you? ---No, I was hurt by the way [AF] addressed her allegations.
At the end of the meeting, you were asked about how you felt you were going in your role? ---Yes.
You were given an opportunity to respond? ---Yes.
And you did respond to how you felt you were going? ---Yes.
You were given an opportunity to make any other comments that you thought were relevant? ---No.
Well, I suggest to you that you were given that opportunity? ---No.
And that’s recorded in the notes. Do you say that too is inaccurate in the notes? ---I’m saying that after – at the end of that – that chat with [AF], I said to her, “Is that it?” after her last response and she said, “Yes, that’s it”.
Well, you were told – you were given an opportunity to make any other comments you thought were relevant? ---Yes, I - - -
You were told that you - - -? ---- - I guess I could have. If I’d voiced – been able to voice my opinion, I could have, but I was too devastated to.
And you were too upset to voice your opinion on some of the issues. Is that what you’re saying? ---I wasn’t given the opportunity in a lot of the accusations - - -
Well, you just said you were - - -? ----- - to give an answer on all of these topics.
A report by Dr William Knox, a consultant psychiatrist, dated 5 September 2012 also contained a description of the meeting and its effects on the respondent:
As noted earlier Ms Beaton told me that her personal life was in a stable condition well ahead of the developments of March 2012. Ms Beaton’s written statement explains certain issues which were transpiring in the workplace, particularly involving the allegedly unsatisfactory work of [ TU]. This man intended to resign, according to Ms Beaton, and it is her understanding that he likely enlisted a number of other employees to complain unjustifiably against your client. There was the additional matter of an affair being carried on by two other workers which had a negative impact on the morale of staff.
Ms Beaton told me that she believes that her duties were carried out satisfactorily and that there had been no complaints during appropriate auditing of the company’s catering services ahead of the complaints against her.
Ms Beaton was in the process of transition in the workplace due to the introduction of a new system of food preparation.
Ms Beaton told me that she was shocked and had felt “ambushed” by the interview with [AF]. I have seen the transcript of the interview, and Ms Beaton commented to me that she is surprised that the facts of these allegations had not been checked in any way before they were put as accusations to her, or that she was not appropriately allowed to discuss these matters with her employer ahead of being challenged with incompetence.
Ms Beaton was not able to continue in her duties in the immediate aftermath of the interview, and told me that she felt, “This can’t be happening.” She was confused. She further thought, “What was happening wasn’t right.” She was tearful and felt humiliated.
I note that the contents of Dr Knox’s report were available for use by the Magistrate as proof of those matters asserted by the respondent to Dr Knox: s 64 Evidence Act2011 (ACT).
AF also gave evidence. She testified that, before the meeting on 14 March 2012 with the respondent, she had a number of meetings with TU, a former employee of the appellant who resigned from his position as production manager at Calvary Hospital in early March 2012. These meetings took place after TU contacted AF by telephone after his resignation, making allegations of bullying and harassment. AF stated that the respondent was made aware by her of the allegations by TU before the meeting of 14 March 2012. She said, “Yes so there were several occasions where I’d met very informally with Cate and the management team to talk about some of the allegations. And as I was investigating those issues several other employees came forward to raise allegations of bullying and harassment from Cate as well”. AF gave the following evidence about the meeting on 14 March 2012:
Now, you said that you had met with [TU] on a number of occasions and that there’d been some discussions with Ms Beaton concerning the meetings with [TU], and what had been raised. What then were the circumstances in which the meeting on 14 March 2012 occurred? ---Yes, so like I said I’d met with [TU] and several other employees that had raised allegations of bullying and harassment. I then briefed [EG] and said that I needed to organise a time to catch up with Cate on the issues. So in the days leading up to 14 March because I was based in Melbourne I would always ring and pre-organise meetings, along with my normal travel and I had let Cate know that I would be there on the 14th to catch up with her, in relation to the issues that I’d found from TU’s meeting and other issues that had been brought to my attention.
And you came to Canberra for that meeting on 14 March? ---I did, yes.
And before you met with Ms Beaton, was there something else that took your attention that day? ---Yes, I arrived at site and met with [EG] and he told me before I’d started my meeting with Cate that the client, [NW], wanted to meet with me to raise some concerns with me, in relation to Cate.
And what were those concerns? ---Yes, so she met with me. There were concerns about service issues. There were also concerns that they’d had a number of Medirest employees approaching the hospital – the client and the hospital – about how they no longer wanted to work for Medirest and they wanted to come and work for the hospital because of the way that Cate was managing and leading the team.
Now, after that discussion you had a meeting with Mr Beaton? ---That’s correct, yes.
And where was that meeting held? ---The meeting was held in one of the private meeting rooms at the hospital.
And who was at that meeting? ---It was myself and Cate.
And do you recall Ms Beaton asking you whether she needed to bring a pen and paper to the meeting? ---No, I do not recall.
And what did you understand the nature of that meeting to be? ---So when I sat down at the start of the meeting, I made it very clear that the meeting with purely to give Cate an opportunity to respond to the allegations. It was like a fact finding and investigation meeting. There’s a standard type of way that we run a meeting with allegations of this nature where we sit down and give the employer the opportunity to respond.
And then what happened? ---So I sat down with Cate and started to talk to her and not only about the issues that were – the bullying harassment issues that were raised from [TU] but all of the other issues that were raised from several other employees that had come forward as well.
And do you recall how long that meeting went for? ---It went for a couple of hours.
And were you taking notes in the course of the meeting? ---Yes, I was.
And in relation to each of the issues that you raised was Ms Beaton given an opportunity to respond? ---Yes.
Did she respond? ---Yes.
Were there issues about which she didn’t make any response? ---No, I had responses, rebuttals and comments on every issue that I raised.
So in some of the issues she simply rebutted the assertion that had been made? ---Yes, yes.
And were there occasions when she was providing an answer where she was cut short? ---Not that I can recollect, no.
What was her demeanour in the course of the meeting? ---Cate was on occasions with some of the things that I was raising with her she was quite alarmed. I felt she was quite defensive. She was rebutting and quite agitated through the course of the meeting, yes.
Was there any break in the course of the meeting? ---No.
Was any break asked for? ---No.
Did she become emotional in the meeting? ---No, no.
Was she crying? ---No.
In cross-examination AF did not dispute that when she first spoke to the respondent on 14 March 2012 she told her she wanted to “have a chat”. She could not recollect whether the respondent had asked whether she should bring a pen and paper. AF said that she had also taken notes of those conversations she had with the respondent about TU’s claims prior to the meeting on 14 March 2012. Interestingly, those notes were not produced by the appellant in the proceedings before the Magistrate. AF agreed that during the meeting the respondent became agitated, by which, she said, she meant that the respondent became a little bit aggressive and defensive. She agreed that on a number of occasions the respondent had told her that she was shocked about the allegations that were being made and that she was blown away by them. AF agreed that the meeting went for nearly two hours, and that she did not offer the respondent a break as she did not feel the was any need for one. She denied that the respondent became emotional and cried during the meeting. AF agreed that at times during the meeting the respondent looked shocked about the allegations, expressed alarm at the things that were being raised. In re-examination, AF said that at the end of the meeting the respondent was fine, and returned to work.
The Magistrate’s findings
The Magistrate made the following findings concerning the meeting of 14 March 2012:
47. There was a significant conflict between the evidence given by the applicant with the evidence of [AF] called by the respondent, regarding the warning that the applicant had of that meeting. I accept the evidence of the applicant on this issue in preference to that of [AF] for the following reasons.
47.1.In giving her evidence, [AF] relied on what was her usual practice, rather than giving a description detailing specific conversations.
47.2.She spoke to the appellant being ‘aware’ of the nature of the topics for discussion at the meeting without further explanation.
47.3.In [AF’s] evidence she used the euphemism ‘catch up’ in substitution for ‘meeting’ indicating to me that the applicant’s evidence that the manager referred to a ‘chat’ in inviting her to the meeting as being likely.
47.4.Although there was email confirmation relating to the arrangements for the meeting, there was no meeting agenda or other documentation of the matters she intended to discuss. In her evidence [AF] confirmed that the topic for discussion was a very serious matter.
47.5.Although [AF] was at pains in her evidence to emphasise that the meeting was simply a fact finding mission, the respondent’s formal documentation tendered as Exhibit A indicates it was the second step referred to in a procedural flow chart relating to ‘Process for Managing Complaints of Discrimination or Harassment’. According to these policy documents it was not a preliminary investigation but part of the official disciplinary process itself.
47.6.The applicant’s surprise, disbelief or shock at some of the allegations is recorded in the minutes.
47.7.[AF] could not have given advance notice of the material which had been raised by the hospital’s representative that morning.
48.I conclude that [AF] was mistaken in her evidence that she had given prior notice to the applicant. She estimated that she had been involved in ‘dozens’ of previous similar matters and has probably mistaken the applicant’s case for one or some of those other dozens.
The Magistrate then made the following findings concerning whether the conduct of the meeting by AF was reasonable:
49.Analysis of the conduct of the meeting must be done objectively in order to determine whether it consisted of ‘reasonable action’. As the respondent submitted, it must not be done with the benefit of hindsight. No matter how the meeting was approached, it was always going to be a difficult subject to present and discuss. [AF] was entitled to regard the applicant as being a person of ‘normal fortitude’. However, she was only entitled to do that when there was no evidence to the contrary. It was therefore unnecessary for [AF] to be aware that the subject of her communications could have a differential effect on the individual involved depending on their constitutional makeup. That is to say in conducting the meeting she should take into account the possibility of an adverse reaction in the interviewee, and if there were signs that this is happening to have taken suitable steps to mitigate any adverse effect.
50.In those circumstances, in my view, it was incumbent on [AF] to gauge the applicant’s reaction and be prepared to modulate her presentation to the applicant according to her perceptions of the applicant’s reaction. It was not open to her simply to assume that the applicant would have no emotional reaction to the matters being put to her, and that expressions of shock or disbelief were not indicators of adverse emotional or psychological reaction. This is not to analyse with the benefit of hindsight. The enquiry is an investigation of whether, having regard to the evidence of the applicant’s reaction, [AF’s] conduct was appropriate.
51.Having regard to the provisions of s 4(2), the issue therefore is whether the meeting was conducted in a reasonable fashion. I have come to the conclusion it was not. The matters which I have taken into account include the following:
51.1.The meeting continued for about two hours. This in my view was too long given the subject matter to be discussed and the applicant’s reactions of shock, dismay, disbelief and distress to what was communicated. [AF] agreed that the meeting went longer than she expected.
51.2.The applicant made exclamations of surprise and disbelief during the meeting which included: ‘I’m so shocked’, ‘this is incorrect’; ‘not true’; ‘this is unfounded’; ‘by this claim staff are in fact victimising me’; ‘blown away shocked (sic)’.
51.3.These responses were apparently ignored by [AF] who did not record any response by herself to the applicant’s exclamations or any invitation to the applicant to explain what it was that she meant or why she made the statement. The absence of any response by [AF] would have had the effect of either creating or heightening in the applicant the impression that her responses were being ignored.
51.4.The exclamations previously referred to should have alerted [AF] that it was desirable to make some enquiry as to the applicant’s welfare; and her capacity to continue with the meeting.
51.5.Contrary to company procedures, there had been no investigation by [AF] of the matters which had been put to her by the employee of the hospital that morning prior to putting them to the applicant.
51.6.The inadequate warning of the content of the meeting given to the applicant would have heightened the impact on her of the material referred to.
51.7.Contrary to [AF’s] evidence, it was not purely a fact finding mission, [AF] incorporated at least some criticism of the applicant’s actions as recorded at the bottom of the first page of the minutes of the meeting.
51.8.[AF] agreed when it was put to her that when the applicant said that she was shocked, she looked shocked. She also said that during the meeting the applicant was aggressive and defensive. In my view these are all signs of emotional response and adverse reaction to the process.
51.9.The applicant had been recently promoted in November the previous year. I assume firstly, that this was done after appropriate investigation by the employer. I also secondly assume that there were then either no complaints or allegations extant, or not the number put to the applicant at the meeting. It seems curious that so many allegations could have come to light in such a short time. It is possible that the post-resignation disclosures of one employee triggered otherwise undisclosed complaints. However having regard to the proximity of the promotion and thus the employer’s assumed satisfaction with the work of the applicant, my view is that the employer should have taken care to warn the applicant of the allegations particularly having regard to their total volume revealed by the notes of the meeting and the time it took.
52.The applicant had been successful in isolating her work duties from her home environment in the past. That indicates to me that she was well equipped to handle the difficult material that she was being confronted with had it been presented to her in a sensitive manner appropriate to its conceded difficult nature. Certainly she had vulnerability, but this had not triggered a problem in the work context in the past. It is likely that she would have been able to deal with the meeting as she had been able to do so with her other work duties in the past had the meeting been conducted reasonably.
53.As the meeting went on and more and more allegations were being put to the applicant including those that had only just that morning become known to the [AF], it was inevitable that what may have started in the mind of [AF] as a fact finding mission would have been perceived by any person the subject of [AF’s] interrogation as being an attack on their integrity. [AF] does not say just how long she had expected the meeting to last initially; however she does say that she did not intend that it should last for the time that it did, that is to say 2 hours. At some stage during the questioning, questions being put by [AF] would have gained the appearance of accusations rather than factual enquiries. To have persisted to the extent of a total time of 2 hours was quite unreasonable. I agree with the words of Dr Knox in his 3rd report of 17 September 2013: ‘many individuals of ‘normal fortitude’ under the same circumstances as Ms Beaton – the alleged nature of the behaviour of [AF], as put to me, and the life situation of the client in respect of age in particular – would have suffered mental injury of varying type and degree’.
54.Shortly put I find that the lack of warning, the continuous allegation of wrong doing for an excessive period of time and without paying heed to the applicant’s expressions of denial, upset and discontent was an unreasonable means of conducting the meeting and that that unreasonable conduct was the cause of the applicant’s injury.
The nature of this appeal
The law governing the present appeal is well settled. Section 197 of the Act gives any party to an arbitration under the Act a right to appeal to this Court from any decision, order or award made by the Magistrates Court. It also provides that Part 4.5 of the Magistrates Court Act1930 (ACT) applies to such an appeal as if it were an appeal from a judgment or order of a kind mentioned in s 274 (2) of the Magistrates Court Act. In such an appeal, this Court must have regard to the evidence given in the proceedings in the Magistrates Court out of which the appeal arose, and has power to draw inferences of fact and, in its discretion, to receive further evidence: s 276 of the Magistrates Court Act. No application was made to receive fresh evidence in the present appeal, and as such the present appeal is a rehearing based upon the evidence in the Magistrates Court. In Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, Refshauge J described such an appeal as follows, at [78]:
Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not likely be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on those circumstances.
In Fox v Percy (2003) 214 CLR 118, Gleeson CJ, Gummow and Kirby JJ observed at [22]:
The nature of the “rehearing” provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the subsections quoted. The “rehearing” does not involve a complete hearing by the appellate court of all the evidence. The court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits.
In Lukatela v Birch (2008) 164 ACTSC 24, Rares J, after citing Fox v Percy, said, at [21]:
…. Although the appeal is by way of rehearing, the appellate [court] does not have a free hand. Only if, after making proper allowance for the advantages of the trial judge, it concludes that an error has been shown, then, the appellate court is authorised and obliged to exercise its appellate duties in accordance with the statute.
Consideration – the grounds of appeal
Ground4.1– Failure to make findings as to the content of the discussion at the meeting on 14 March 2012.
It is well settled that the duty to give reasons is a necessary incident of the judicial process: Mifsud v Campbell (1990) 21 NSWLR 725. In Keith v Gal [2013] NSWCCA 339, Gleeson JA (with whom Emmett JA and Simpson J agreed) helpfully and comprehensively set out the requirements for proper reasons for judgment at [109] – [119]:
109.The duty to give reasons is a necessary incident of the judicial process. Failure to provide sufficient reasons promotes “a sense of grievance” and denies “both the fact and the appearance of justice having been done”, thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 per Meagher JA.
110.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. As stated by Basten JA (Beazley HA (as her Honour then was) and Macfarlan JA agreeing) in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]:
“It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality”.
111.A similar reticence when scrutinising judicial reasons was expressed by Allsop P in Mitchell v Cullingral Pty Ltd [2012] NSWCA 389 where his Honour (at [2]) stated that when dealing with large bodies of evidence, a judge may be:
“forced to economise in expression and approach in order to be coherent in resolving the overall controversy. The need for coherent and tolerably workable reasons sometimes requires truncation of reference and expression ... That said, central controversies put up for resolution by the parties must be dealt with. The competing evidence directed or relevant to such controversies must be analysed and resolved”.
112.In Mitchell v Cullingral Pty Ltd, Campbell JA gave the lead judgment (with which Allsop P and McColl JA agreed) and stated the requirements for proper reasons for judgment in the following terms:
“116 A trial judge has a duty to refer to material evidence and make findings about material issues in the case: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 79 ALJR 1816 at [130] (Hayne J). The absence of such findings and the absence of reference to such evidence can properly be taken as showing that the trial judge has erroneously overlooked or discarded it: ibid; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher JA); Whalan v Kogarah Municipal Council [2007] NSWCA 5 at [40] (Mason P, Ipp JA and Tobias JA); Najdovski v Crnojlovic [2008] NSWCA 175; (2008) 72 NSWLR 728 at [21] (Basten JA, Allsop P agreeing); Sangha v Baxter [2007] NSWCA 264 at [22] (Ipp JA, Campbell JA agreeing); Nominal Defendant v Kostic [2007] NSWCA 14 at [59] (Ippa JA, Hodgson JA and Campbell JA agreeing). Another way in which this has been put is that the judge must engage with, or grapple or wrestle with, the cases presented by each party: Whalan at [40]; Kostic at [2]. This is not adequately done by setting out the evidence adduced by one side, setting out the evidence on the other side, any saying that the judge prefers one body of evidence to another: Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28] (Ipp JA, Mason P and Tobias JA agreeing); Kostic at [58]”.
113.In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, McColl JA (Ipp JA and Bryson AJA agreeing) referred to various observations in earlier authorities about the extent to which reasons should deal with the evidence. Her Honour noted (at [60]) that the test of adequacy is relative. The following principles articulated by McColl JA in Pollard at [56]-[66] are of relevance in the present case.
114.First, the general proposition as stated by Samuels JA in Mifsud v Campbell at 728:
“...[F]ailure to refer to some of the evidence does not necessarily, whenever it occurs, indicate that the judge has failed to discharge the duty which rests upon him or her. However, for a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge ... may promote a sense of grievance in the adversary and create a litigant who is not only ‘disappointed’ but ‘disturbed’ – to use the words which appear in the New Zealand case of Connell v Auckland City Council (1977) 1 NZLR 630 at 634”.
115.Secondly, a judge should refer to evidence which is important or critical to the proper determination of the matter. Whilst it is unnecessary to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered, where such evidence is not referred to be the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: Beale v Government Insurance Office of New South Wales at 443 per Meagher JA.
116.Thirdly, bald conclusionary statements should be eschewed. As stated by Ipp JA in Goodrich Aerospace Pty Ltd v Arsic [2006] NSWCA 187; (2006) 66 NSWLR 186 at [28]:
“It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of one or the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates.
117.Thus, it is essential to expose the reasoning on a point critical to the contest between the parties. This proposition reflects one of the three fundamental elements to a statement of reasons identified by Meagher JA in Beale v GIO at 443-444:
“Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.
118.Fourthly, where credit issues are involved it is necessary to explain why one witness’s evidence is preferred to another’s: Palmer v Clarke (1989) 19 NSWLR 158 at 170 per Kirby P (Samuels JA agreeing).
119.Further, as noted by McColl JA in Pollard v RRR Corporation Pty Ltd at [66]:
“Where it is apparent from a judgment that no analysis was made of evidence competing with evidence apparently accepted and no explanation is given in the judgment for rejecting it, it is apparent that the process of fact finding miscarried. This is because, so far as the reasons reveal, no examination was made of why the evidence which was accepted was to be preferred to that of other witnesses: Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57;(2005) 79 ALJR 1816 (at [130 – [131]) per Hayne J (with whom McHugh J (at [26]) and Gummow J (at [27]) agreed)) see also Najdovski v Crnojlovic [2008] NSWCA 175 (at [21]) per Basten JA (Allsop P and Windeyer J agreeing)”.
The Magistrate can hardly be blamed for not reciting at length the terms of the conversation that occurred during the meeting on 14 March 2012. First, neither the respondent nor AF gave evidence of the detail of those conversations. Secondly, it was unnecessary to do so because both the respondent and AF were in agreement that AF’s notes of the conversation, which were admitted as Exhibit 4, to a great extent accurately reflected the terms of the conversation. The “content of the discussion” which took place at the meeting was adequately revealed by AF’s notes, and it was not necessary for the Magistrate to recite the terms of the exhibit in his reasons. In the course of his reasons, the Magistrate gave clear and concise reasons for his finding that the meeting of 14 March 2012 was not conducted reasonably. He was obliged to do no more. Most of the reasons given by his Honour for finding that the conduct of the meeting was not reasonable are not based upon the content of the discussion, and those that are referred to are sourced from material that was not in dispute. This ground of appeal must fail.
Ground 4.2 – Failure to make a finding as to the respondent’s emotional state during the course of the meeting.
Contrary to the appellant’s submission, the Magistrate did make findings as to the respondent’s emotional state during the course of the meeting. At [51.1] to [51.4], his Honour found that the respondent’s reaction was “shock, dismay, disbelief and distress to what was communicated”. He found that the respondent made exclamations of surprise and disbelief during the meeting which included, “I’m so shocked”; “this is incorrect”; “not true”; “this is unfounded”; “by this claim staff are in fact victimising me”; and “blown away shocked (sic)”. He found that those responses were apparently ignored by AF. I note that this material is largely uncontroversial, with AF accepting that most if not all of these statements were made by the respondent during the meeting. These findings by the Magistrate were adequate to explain his conclusion that the exclamations made by the respondent during the course of the meeting should have alerted AF that it was desirable to make some enquiry as to the respondent’s welfare and her capacity to continue with the meeting. The Magistrate’s findings were adequate to explain this conclusion. This ground of appeal must fail.
Ground 4.3 – Failure to provide sufficient reasons for concluding that the respondent displayed an adverse reaction and an emotional response to the meeting process.
This ground of appeal also has no merit. At [25] of his reasons, the Magistrate noted that in her evidence, AF, while denying that the respondent became emotional or cried during the meeting, said that the respondent appeared shocked, was quite agitated, alarmed and defensive during the course of the meeting. There was ample evidence of the respondent displaying an adverse reaction and an emotional response to the allegations during the course of the meeting. His Honour was required to do no more than identify that evidence, which he did.
Ground 4.4 – Failing to deal with the challenge made to the reliability of the applicant’s evidence as to factual matters, given her accepted psychological vulnerability.
I have some difficulty in understanding this ground of appeal. On its face, it suggests that some challenge was made to the reliability of the respondent’s evidence based upon the nature of her psychological condition. In written submissions on this appeal, the appellant suggested that this issue was put to Dr Knox (at AB 113) and was raised with his Honour in submissions. I confess that I can find no reference in the transcript to any submission to this effect being made to the Magistrate. No further illumination is forthcoming by reference to the evidence of Dr Knox referred to by the appellant. The relevant questioning of Dr Knox is set out below:
And certainly that was the history you received, one of significant attack in the course of this meeting? ---Yes, and a whole lot of other – all – a lot of things reflecting on how the workplace functioned but from other – other levels of management with the – with the chef who was there, with certain other matters that were happening in the workplace that I don’t know whether it was Ms Beaton’s job to manage, whether she had any power to alter those things. So there were a number of events that led up to the destabilisation of – of her work role. And then the attack as the coup de gras.
And if the history was changed in this way that the meeting that occurred on 14 March was not an attack, but much more in the way of a fact finding exercise with an opportunity provided to respond to various assertions that had been made? ---Yes.
Would Ms Beaton’s response to that meeting, that her extreme response to that meeting, be consistent with an extremely vulnerable person? ---Well, I – I- I don’t know but if that was all very reasonable and people had said, “Well, look, hey, you’re having a few difficulties here, let’s sit down and have a chat about that, I – if that happened, I – I don’t believe that Ms Beaton would have reacted in the way that she did. I think that her self esteem is very vulnerable because of these other factors that you have talked about and that whilst she may have perceived there to be more attack than there was, from what I understand happened that she said that she wasn’t allowed to have her say, that there were accusations made that weren’t substantiated, et cetera, so all those things added up to an attack for her in her mind. But certainly she was vulnerable, as I’ve said in my most recent report I believe that with people with normal fortitude if they had been faced with a workplace as I understood it to be in terms of that meeting in particular, that they could well have deteriorated and left the workplace highly distressed but would have been more likely to then have probably not have gone back to that workplace but they’d be more likely to have gone away and found a job industry somewhere else as when Ms Beaton did when she left the motor industry.
It appears, with respect, that the real challenge the appellant makes is to the acceptance by the Magistrate of the respondent’s evidence concerning the way in which the meeting was conducted, and his rejection of the evidence of AF. The Magistrate was entitled to accept the evidence of the respondent, and he set out in detail at [47] his reasons for doing so. I should add that there appear to me to be further reasons to doubt the evidence of AF beyond those given by the Magistrate. In her evidence, AF said that she had kept notes of the conversations with the respondent in the period leading up to the meeting in which she gave the respondent advance warning of the complaints which, at that time, had been made against her. The question of whether the respondent had been given advance notice of the nature of the matters to be discussed in the meeting was clearly a matter of great significance, and yet those notes were not produced. In addition, AF testified that there were several occasions prior to 14 March 2012 when she met with the respondent “and the measurement team” to talk about the allegations. No notes of those conversations were produced, nor were any members of the “measurement team” called to give evidence on behalf of the appellant, and their absence was not explained. Finally, it is, in my opinion, inherently unlikely that the respondent would have been so obviously visibly shocked by the allegations during the meeting, as was conceded by AF, if she had prior notice of the allegations. In my opinion, the Magistrate was entitled to reject the evidence of AF that she had given the respondent prior notice of the allegations, and her intention to discuss those allegations at the meeting.
Ground 4.5 – Conclusion that AF was mistaken regarding prior warning of the meeting was against the evidence or the weight of the evidence.
For the reasons that I have just given with respect to the previous ground of appeal, this ground fails.
Ground 4.6 – Error in finding at [49] that there was objective evidence available during the course of the meeting that the respondent was not a person of normal fortitude.
The Magistrate did not make a finding at [49] that there was objective evidence available during the course of the meeting that the respondent was not a person of normal fortitude. The Magistrate correctly observed that AF was entitled, at the commencement of the meeting, to regard the respondent as being a person of normal fortitude and to conduct the meeting on that basis. His Honour then observed that AF had an obligation to observe and monitor the respondent’s reactions during the meeting to identify signs of an adverse reaction which may require a change of approach to the meeting. I have no doubt that this was required of AF to ensure that her actions were reasonable. The Magistrate concluded that AF’s conduct in the meeting as it progressed was not reasonable, and he gave comprehensive reasons for coming to that conclusion. There was ample evidence to support his conclusion. The question to be answered, as identified by the Magistrate, was whether the conduct of the meeting of 14 March 2012, as part of a process of discipline, was reasonable. The failure of the appellant (through AF) to give the respondent advance warning of the issues to be raised, being complaints highly critical of the respondent’s work performance, was calculated to cause shock. This was compounded by the length of the meeting and the number of allegations presented to the respondent without notice. It must have been clear to AF that the issues she was raising in the meeting could affect the continuing employment of the respondent, and that the respondent would be aware of this fact. As the Magistrate observed, the subject matter of the meeting was never going to be easy, but the way in which it was approached was such as to cause maximum shock and anxiety on the part of the respondent. This ground of appeal must also fail.
Conclusion
The appeal is dismissed with costs.
| I certify that the preceding twenty five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 10 March 2015 |
Amendments
10 March In paragraphs 10 (lines 1,7, 11) , 11 (lines 2, 5), 18 (line 2) and 24 (line 13), the date “14 December 2012” should read “14 March 2012”.
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