Director General of Education and Training v Pembroke No 2
[2007] NSWWCCPD 168
•1 August 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Director General of Education and Training v Pembroke No 2 [2007] NSWWCCPD 168
APPELLANT: Director General of Education and Training
RESPONDENT: Elaine Dorothy Pembroke
INSURER:GIO General Limited (Newcastle) as Agent for Treasury Managed Fund
FILE NUMBER: WCC8912-2005
DATE OF ARBITRATOR’S DECISION: 7 March 2007
DATE OF APPEAL DECISION: 1 August 2007
SUBJECT MATTER OF DECISION: Error of law; error of fact; findings inconsistent with the evidence and weight of the evidence; relevance; reasonable action causing psychological injury, section 11A, Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Sparke Helmore Solicitors
Respondent: MacMahon Associates Pty Ltd
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 7 March 2007 is confirmed.
The Director General of Education and Training is ordered to pay Ms Pembroke’s costs of this appeal.
BACKGROUND
On 4 April 2007 the Director General of Education and Training, the Appellant Employer, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 March 2007.
The Respondent Worker in the Appeal is Elaine Dorothy Pembroke.
The Insurer is GIO General Limited (Newcastle) as Agent for the Treasury Managed Fund.
Ms Pembroke was born on 27 July 1944 and has worked as a teacher since 1964. From 1996, she was employed by the Appellant Employer as a mathematics and science teacher at Wyong High School. Following an incident on 6 February 2003 involving a disruptive female student whom Ms Pembroke reported to the Deputy Principal, the student made a complaint against her. The complaint was passed on to the Child Protection Investigation Directorate (‘CPID’). About six weeks after the incident, Ms Pembroke received a letter from the CPID detailing the complaint. Ms Pembroke was subsequently advised that the CPID found insufficient evidence to substantiate the allegations made against her.
Ms Pembroke claims that from the time of receiving the letter on 19 March 2003, she has experienced anxiety and has been unable to work. She has not worked since that date. On 2 April 2003 Ms Pembroke completed a claim for workers compensation. Liability was initially accepted. However, by letter dated 27 September 2004, the Insurer notified Ms Pembroke of its intention to cease payment of medical benefits from 10 October 2004 and of weekly compensation from 11 November 2004.
Ms Pembroke lodged an ‘Application to Resolve a Dispute’ in the Commission, which was registered on 9 June 2005. The Appellant Employer filed a ‘Reply’ on 30 June 2005. The Arbitrator conducted a teleconference with the parties on 18 August 2005, but the dispute failed to resolve. On 15 September 2005 the Arbitrator conducted an arbitration hearing, and gave his decision orally at the conclusion of the hearing.
On 5 October 2005 the Appellant Employer sought leave to bring an appeal in the Commission, against the decision of the Arbitrator.
The appeal was determined on the papers by Acting Deputy President Robin Handley on 10 August 2006 (Director General, Department of Education and Training v Pembroke [2006] NSWWCCPD 182).
The award made in favour of Ms Pembroke by the Arbitrator on 15 September 2005, was as follows:
“1.There is an award for the Applicant in respect of the Applicant’s claim for weekly compensation pursuant to s 40 of the Workers Compensation Act 1987, for the period from 11/11/2004 to date and continuing, at the statutory rate for a single worker with no dependents.
2.There is an award for the Applicant, in relation to the Applicant’s claim for medical costs incurred to date, pursuant to s 60 of the Workers Compensation Act 1987.
3.I determine that this matter, which went directly to arbitration, was a complex matter as provided for by Regulation 129 of the Workers Compensation (General) Amendment (Costs) Regulation 2001.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
In his written decision at paragraph 5, Acting Deputy President Handley stated:
“In his oral statement of reasons for his decision, the Arbitrator found that Ms Pembroke suffered from a psychological injury as a result of the investigation of the complaint made against her. Relying on the decision of Walker J of the Compensation Court of NSW in Hunt v Department of Education and Training (2003) 24 NSWCCR 642 [‘Hunt’], the Arbitrator decided that section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’) did not apply. He rejected the Department’s submission that the investigation was a reasonable action with respect to the discipline of the worker on the basis that discipline only occurs after there has been a finding of fault. There was no such finding in Ms Pembroke’s case and no disciplinary proceedings: ‘there was no reasonable basis for any discipline which would invoke it [section 11A]’ (transcript page 66).”
The issue in dispute in the appeal before Acting Deputy President Handley is set out at paragraph 6 of his written decision:
“The issue in dispute in the appeal is whether the Arbitrator should have applied section 11A of the 1987 Act in making his determination. The Department submits that it was not liable to pay compensation because the worker’s injury arose from the reasonable actions of the employer with respect to discipline. The parties’ submissions on this issue are discussed below.”
Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by the reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
Acting Deputy President Handley found at [25]:
“In my view, the Arbitrator made an error of law in his interpretation of the relevant words in section 11A. The key to their interpretation is the words ‘with respect to’. These words should be understood in their ordinary, literal sense, and in my view, the process involved in investigating improper conduct that might lead to disciplinary proceedings should be taken to be included within the ambit of the phrase ‘with respect to … discipline’. This is notwithstanding that there has been no finding of fault or improper conduct on the part of the person whose conduct is the subject of the investigation. The Arbitrator appears to have mistakenly focused on the word ‘discipline’ without referenced to the words ‘with respect to’. In my view, he misinterpreted Walker J’s comments in Hunt: my reading of that part of His Honour’s judgment, quoted in paragraph 20 above, does not suggest that a
finding of fault or improper conduct is a pre-requisite to describing actions being
with respect to discipline.”
The Acting Deputy President then stated at [26]
“Having determined that the answer to the first question is that the Department’s action was ‘with respect to … discipline’, then the second question which must be considered is whether that action was ‘reasonable’. This is a question of fact involving an objective test, that of the reasonableness of the conduct: Minahan [Commission of Police v Minahan [2003] NSWCA 239] at paragraph 27. In determining whether the conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and employer (Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWWCCPD 66 [‘Rashov’], at paragraph 82). If the employer can establish that its conduct was reasonable, then the employee cannot recover compensation.”
After due consideration Acting Deputy President Handley said at [33]:
“In my view, there is insufficient evidence before the Commission for me to determine whether the Department’s action was unreasonable. It appears from the transcript that the hearing may have been sidetracked by the discussion between the Arbitrator and Counsel for the Department over the application of section 11A. The appropriate course, therefore, is for me to remit the matter to the Arbitrator to determine the issue of whether the Department’s action was reasonable.”
Accordingly, the Acting Deputy President revoked the decision of the Arbitrator, dated 15 September 2005, and remitted the matter to the Arbitrator to determine the reasonableness of the Appellant Employer’s actions in “in accordance with these reasons.” The Acting Deputy President made no order as to costs of the appeal.
The Arbitrator duly complied and issued a ‘Certificate of Determination’ on 7 March 2007. It is that decision that is the subject of this appeal.
THE DECISION UNDER REVIEW IN THIS APPEAL
The ‘Certificate of Determination’, dated 7 March 2007, records the Arbitrator’s orders as follows:
“1.There is an award for the Applicant in respect of the Applicant’s claim for weekly compensation pursuant to s 40 of the Workers Compensation Act 1987, for the period from 11/11/2004 to date and continuing, at the statutory rate for a single worker with no dependants.
2.There is an award for the Applicant, in relation to the Applicant’s claim for medical costs incurred to date, pursuant to s 60 of the Workers Compensation Act 1987.
3.I determine that this matter, which went directly to arbitration, was a complex matter as provided for by Regulation 129 of the Workers Compensation (General) Amendment (Costs) Regulation 2001.
4.The Respondent is to pay the Applicant’s costs as agreed or assessed, except for the costs of the appeal.”
ISSUES IN DISPUTE
The Appellant Employer “appeals against the finding of the Arbitrator” that it has failed to satisfy the onus of proof that its actions were reasonable in respect of discipline and that it is unable to rely upon the defences in section 11A of the 1987 Act.
The issues in dispute in the appeal are:
1.that the Arbitrator erred at law in finding that the Appellant Employer had failed to satisfy him that its actions overall were objectively reasonable, and
2.that the Arbitrator erred in relying upon factual findings, which were, not consistent with the evidence, or were not relevant to the determination.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on appeal is both at least $5000 and at least 20% of the amount awarded in the decision appealed against. The requirements of section 352(2) of the 1998 Act are satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
EVIDENCE SUBMISSIONS DISCUSSION AND FINDINGS
A reading of the Arbitrator’s Statement of Reasons for Decision (‘Reasons’) reveals a close consideration of the issue in question, as remitted by Acting Deputy President Handley.
Nevertheless, the Appellant Employer submits that the Arbitrator has fallen into error in arriving at his decision. Moreover, it has again provided a good deal of detail in relation to the events that led up to the claim for workers compensation made by Ms Pembroke.
As stated by Acting Deputy President Handley, the role of a Presidential Member on appeal is to undertake a review of the Arbitrator’s decision. The review is not a rehearing.The Appellant Employer must demonstrate that the decision of the Arbitrator is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; see also The King Island Company Limited v Deery [2005] NSWWCCPD 1) in order to enliven the Presidential Member’s power to interfere with the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act. The Arbitrator’s decision should only be disturbed if it contains an error of law, fact or discretion and then only if the error is such that but for it a different decision would have been made in its place (YG & GG v Minister for Community Services [2002] NSWCA 247; South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18).
The onus of proof in terms of “reasonable action” and other matters under section 11A of the 1987 Act is carried by the Appellant Employer (Department of Education & Training v Jeffrey Sinclair [2004] NSWWCCPD 90 per President Justice Sheahan at [23]).
The question as to whether an employer’s actions are reasonable pursuant to the section is one of fact, not law (Minahan).
In determining the question, whether the Appellant Employer’s actions were reasonable or not, depends upon the intrinsic reasonableness of its actions, taking into account relevant matters pertaining to Ms Pembroke and known to the Appellant Employer (Minahan; see also Abdul-Rahman v Allied Pickfords Pty Ltd [2005] NSWWCCPD 107; Pirie v Franklins Limited (2001) 22 NSWCCR 346 (‘Pirie’)). The test of reasonableness of the relevant conduct is objective. “Whether an action is reasonable should be attended in all the circumstances by a question of fairness.” (Minahan). The term “reasonable action” therefore, should be given a broad construction (Dunn v Firth [2003] NSWCA 280). In this context therefore, consideration should be given to the circumstances surrounding the “action”, to the extent that what occurred before and after the “action” may be taken as a guide to its reasonableness or otherwise, but is not determinative of it (Buxton v Bi-Lo Pty Ltd (1998) 16 NSWCCR 234 at 249 (‘Buxton’); Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454, at 458) (‘Melder’); Pirie).
Reference to and a brief discussion of, the foregoing principles and authorities are found in the Arbitrator’s Reasons at paragraphs 42 to 47, inclusive.
The Appellant Employer submits that the Arbitrator erred in finding that it [the Appellant Employer] has failed to discharge the onus of proof that it carries to establish that its “actions overall were objectively reasonable”, and as a consequence, that it is unable to rely upon the defence available to it under section 11A of the 1987 Act. Further to that submission, the Appellant Employer submits that the Arbitrator erred in relying upon factual findings that were not consistent with the evidence, or were not relevant to the determination.
Did the Arbitrator err in relying upon factual findings, which were inconsistent with the evidence, or were not relevant to his determination?
The Appellant Employer submits that the Arbitrator has misunderstood the policy requirements in relation to an investigation (paragraph 41 of the Arbitrator’s Reasons). It submits that the “allegations made by the student in relation to the worker’s conduct were self evidently of a serious nature.” It submits that the Arbitrator erred in finding that the allegations were of a less serious nature and finding that this should have been recognized by the Appellant Employer’s allocation committee as such, and should have been referred for local management. The Appellant Employer says that a reading of page 16 of the Policy, ‘Responding to Suggestions, Complaints and Allegations’ effective from 23 April 2003, “it is clear that the matter must be referred to the CPID [Children Protection Investigation Directorate]. The CPID must then determine whether the allegations are of a serious or non-serious nature.”
I note Acting Deputy President Handley’s statement at paragraph 27 of his Reasons, “… there was a reference at the arbitration hearing to the Departmental Policy now having been changed (transcript page 55) although no evidence appears to have been provided as to this.” Neither of the parties has addressed this aspect, in this appeal.
The Arbitrator’s brief description of the procedure to be applied is based upon the two official documents that were in evidence before him. These were, Responding to Suggestions, Complaints and Allegations (effective 23 April 2001) (‘the Responding document’) and Procedures for the Local Management of Less Serious Allegations of Child Abuse Against DET Staff (implementation date 26 August 2002) (‘the Procedures document’).
The Procedures document sets out the procedures and forms that are to be used when the CPID determines that a less serious allegation against a Department of Education and Training (‘DET’) staff member or child abuse can be locally managed rather than investigated by the CPID. It states, “These procedures apply to principals, district superintendents, institute directors and executive officers (i.e. Department of Education and Training workplace managers) when a matter is referred to them by CPID for local management.”
The Arbitrator canvasses the procedure in some detail (paragraphs 26 – 41 inclusive). On reading the relevant parts of the documents referred to in the immediately preceding paragraph, I can find nothing to support the assertion by the Appellant Employer that the arbitrator has “misunderstood the policy requirements in relation to an investigation” as they are set out in the documents, and nothing to suggest that he misunderstood the procedures, for that matter. The Arbitrator did however, arrive at a view which was the basis for his findings and in particular that the incident involved an allegation of a less serious matter of child abuse which should have been referred for local management.
The Appellant Employer supports its submissions in this regard by asserting that the Arbitrator erred in finding that the allegations made were of a less serious nature; that this ought to have been recognized by the allocations committee of the CPID, and consequently, the matter ought to have been referred for local management.
The Appellant Employer submits, “ … the allegations did not involve grabbing, shoving or use of excessive force [being in the nature of the less serious matters set out in the Procedures document] but rather actual assault and a verbal threat of physical violence to a child.” It also points out that the Arbitrator noted that there were no witnesses to the alleged conduct, but in fact “the evidence tendered in the case was that the allegations were supported by [child A].” In this regard the Appellant Employer submits that the evidence of witnesses was not particularly relevant as to whether the investigation should proceed or not.
The allegation, denied by Ms Pembroke, is that she used offensive language to child A, threatened to throw her bag at her head, used offensive and threatening language to child B, and further that she pushed child B back into the classroom, grabbed and twisted her arm and threatened to “screw up your face”.
The Procedures document states:
“These procedures have been developed to allow principals, district superintendents, institute directors and executive officers to manage less serious allegations of child abuse at the local level in a manner that best meets the needs of the students, staff involved and the community, without undue delay.
These procedures are consistent with paragraph 2.5 of the Determination by the NSW Ombudsman under Section 25C(43) of the Ombudsman Act 1974. They are to be applied to the kinds of less serious allegations of child abuse identified in paragraph 2.3 of the Determination.
These are allegations of
·pushing
·pulling
·pinching
·poking
·shoving
·use of restraint or excessive force
·allegations of neglect through failure to provide supervision or apply medical treatment
·self disclosure of first time allegations of non-sexual, possible child abuse (in all cases, with no apparent harm or injury)
In addition, other less serious allegations of child abuse as determined by the CPID allocation committee can be referred for local management.”
There is no mention of the use of threatening and/or offensive language in this list of allegations that fall within the category of “less serious”, although the language allegedly accompanied allegations of grabbing, pushing and use of excessive force on child B.
The question is not whether I agree with the Arbitrator’s view, but whether it was reasonable for him to arrive at his view, based on the evidence (Swain v Waverley Municipal Council (2005) 79 ALJR 249; 213 ALR 249). The High Court said in that case, per Gleeson CJ, “The question for an appellate court is whether it was reasonably open to the jury [sic] to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.”
The Arbitrator had the benefit of the oral and written evidence that was given in this matter. The witness for the Appellant Employer, Ms Carlon indicated at page 12 of the transcript, that the allocation committee’s decision supports the view that the allegations did not fall within the definition of matters that could be managed locally, as the allegations were “more serious than would be covered by the determination.” However, Ms Carlon was only able to respond in general terms about the process, as on her own admission, she was not a member of the allocation committee and was not present during their deliberations. Moreover, it seems that Ms Pembroke is correct in asserting, at page 12 of the transcript, line 57, Ms Carlon effectively conceded “there was no record on their [the allocation committee] document as to whether the allegations were less serious which could be considered for local management.” In any event, on the evidence that was before the Arbitrator and that is before me, it seems that what is alleged to have taken place, may reasonably be construed to fall within the Determination by the New South Wales Ombudsman under section 25C(4) of the Ombudsman Act 1974, as set out in the Procedures document, and also within the ambit of a “less serious” allegation falling short of the “self evidently serious” allegations asserted by the Appellant Employer. I note that there is no evidence or claim of injury to child B as a result of what allegedly occurred and that Ms Pembroke herself reported her version of the incident and events, which were markedly different to the version provided by child B, prior to the allegations being made against her.
On the evidence and upon these considerations, I find that it was reasonably open to the Arbitrator to arrive at the view that the allegations (of child abuse) in this matter were of a less serious nature and extent in terms of the allegations of child abuse, and that it was appropriate for the allocation committee to refer the matter to be locally managed, having regard to all of the circumstances.
While I agree with the Appellant Employer that the Arbitrator did focus to some extent on the evidence for the investigation, this is relevant to his consideration of the seriousness of the allegations. While this focus was not determinative of the matter, this focus in addition to other factors, did aid and guide his consideration, and assisted him to come to a view (see Buxton; Melder, and Pirie).
The Appellant Employer further submits that by concerning himself with the nature of the recording methods of the CPID the Arbitrator has placed undue weight on evidence that was not relevant to his determination. The Appellant invites attention to paragraph 54 of the Arbitrator’s Reasons in this regard:
“I have thoroughly analysed the material put before me concerning the activities of the allocation committee in relation to the allegations that were made. On the basis of that analysis and without a clearer statement of the reasons for its actions, which I accept the Respondent is not require to provide, I am unable to be satisfied that the actions of the allocation committee were reasonable.”
In my view, the Appellant Employer’s assertion is an overstatement. The Arbitrator’s comments are not indicative of undue weight being placed on this aspect. The Arbitrator can only deal with the evidence and submissions that are put to him. The question of the reasonableness of the Appellant Employer’s conduct includes, of necessity, a reference to the relevant action of the allocation committee in the circumstances surrounding this matter. The Arbitrator had the benefit of the Procedures document, the content of which appeared to meet the demands of the situation, and there is no compelling evidence before the Arbitrator or me that either refutes this or explains why the prescribed course of action was not taken.
The Appellant Employer submits “that there was evidence to support the submission that the investigation was reasonable in the circumstances and maintains that this evidence [is] comprised of the following:
1.The nature of the allegations involving physical assault and threats of physical violence.
2.The requirement for investigation contained in the Department’s “Policy for Responding to Suggestions, Complaints and Allegations”(‘the Responding document’).
3.The requirement under the Policy that the worker not be contacted in relation to the investigation, except by representatives of the CPID.
4.The evidence of Ms Carlon that confirmed that the Department complied with the requirement of the Policy, and that given the nature of the allegations a full investigation by CPID was required.
5.The evidence that confirmed that local management had requested the investigation to be undertaken by CPID rather than locally managed.”
The nature of the allegations has been addressed and further comment is not required.
In addition to the Responding document, the Appellant Employer is also required to comply with the Procedures document in appropriate circumstances. This too, has been dealt with, above.
In relation to the remaining points, the Arbitrator was required to view the matter objectively and in my view, has exercised his function in this regard in a proper manner. Ms Carlon’s evidence expresses her opinion, but is not determinative of the issue. Similarly, the assertion that local management requested the investigation to be undertaken is relevant, but again, it is not determinative. Indeed, this request is but a component of the surrounding circumstances leading to the injury being sustained by Ms Pembroke.
While the Arbitrator was somewhat expansive in his commentary, his decision is not squarely grounded upon factual findings that were inconsistent with the evidence or that were not relevant to the determination – but in any event, not to the extent that they are fatal to his determination. No error of fact, law or discretion is demonstrated that would upset the Arbitrator’s decision. Accordingly, this ground of appeal fails.
Did the Arbitrator err at law in finding that the Appellant Employer had failed to satisfy him that its actions overall were objectively reasonable?
The Appellant Employer submits that the Arbitrator’s finding “is inconsistent with the legal requirements of Section 11A as determined in the case of Department of Education & Sinclair NSW CA 465” [sic – Department of Education & Training v Sinclair [2005] NSWCA 465 (‘Sinclair’)].
In support of this submission it states:
“The Appellant submits that in the current case, the Respondent’s psychological injury arose at the time she received notice of an investigation. The Appellant submits that the Arbitrator has erred in considering the reasonableness of the overall process as in the circumstances of this case this was irrelevant to the cause of the worker’s condition. The Appellant submits that in the circumstances of this case, the conduct in respect of the investigation was reasonable.”
The Appellant Employer cites the words of Spigelman CJ in Sinclair at [69], thus:
“ the statutory test could not be satisfied merely by identifying two respects in which the Appellant’s conduct was unreasonable. It remained necessary to determine whether, notwithstanding those blemishes in the decision-making process, ‘reasonable action’ was the sole or predominant cause.”
The Arbitrator’s statement, relevant to this point is found at the beginning of paragraph 47 of his Reasons:
“Section 11A requires a consideration of whether an employer’s actions as a whole, were ‘reasonable’. Spigelman CJ explained in [Sinclair] where the Court of Appeal held at [96] and [97]:
’96 Furthermore, the case before Sheahan J primarily focused on the whole course of Departmental conduct as constituting the relevant ‘substantial contributing factor’ for purposes of s9A. His Honour appeared to approach the s11A issue on the same basis. This is an appropriate course to adopt in a context concerned, and concerned only, with psychological injury arising from matters such as ‘demotion, promotion, performance, appraisal, discipline, retrenchment or dismissal’. Such actions usually involve a series of steps, which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context, the ‘whole or predominant’ cause is the entirety of the conduct with respect to, relevantly, discipline.
97 His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable’ action, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’. For this alternative reason the appeal should be allowed.’”
In essence, the Appellant Employer is saying that the psychological injury arose with and at the time of, service of the notice upon Mrs Pembroke and, unlike the circumstances in Sinclair, the psychological effect upon her arose out of this step. In other words, the process did not involve a series of steps, which cumulatively, had psychological impacts upon her. It submits that the overall process in the circumstances of this matter was not relevant to the cause of Mrs Pembroke’s psychological injury
The Arbitrator said at paragraph 47 of his Reasons that, “Section 11A requires a consideration of whether an employer’s actions as a whole, were ‘reasonable’.”
However, this aspect was decided in Sinclair on the particular facts and circumstances of that case, where the “whole or predominant cause was the entirety of the disciplinary process, as much of the evidence suggested” (emphasis added). The whole of the process contained two specific blemishes, but the Court of Appeal said that in that case, what needed to be established was whether or not the whole process was reasonable, notwithstanding the blemishes. Spigelman CJ said, in these types of cases, “More often than not it will not be possible to isolate a single step.” However, he did not say or infer that it would never be possible to do so. The “whole or dominant cause” of the injury, can be anything from an isolated step, to a number of steps, right up to the entire process, depending upon the facts. Ultimately, in determining whether the conduct was reasonable, all relevant factors must be taken into account including the rights of both parties (Rashov).
The Appellant Employer posits in effect, that in the instant case, the “single step” should be “isolated”, having regard to the particular facts and circumstances of the case. Even if this is the case, the determination of reasonableness ought to be guided by, even if not determined by, the surrounding circumstances, in the event that the whole of the overall process was not the whole or predominant cause (Buxton; Melder; Pirie). It is relevant that Ms Pembroke herself had reported her version of the incident, and what occurred next was service upon her of a formal notice of investigation of her conduct. Moreover, the manner and means of the communication of a decision or proposal to transfer a worker is required to be reasonable, as well as the actual decision or proposal itself (Manly Pacific International Hotel Pty Limited v Doyle [1999] NSWCA 465 at [6] per Fitzgerald JA, Mason P agreeing). Similarly, the manner and means of the notification in the instant case are relevant considerations, as these are necessarily, integral and inseparable elements of the “action” of giving notice.
Whatever the circumstances, in order for the Appellant to succeed, it must be established that “reasonable action” was the whole or predominant cause of the psychological injury (Sinclair), if the Appellant Employer is to succeed. Having regard to what is set out above, I agree with the Arbitrator that this has not been established.
The fact of injury is not in issue in this appeal. While the Arbitrator may have imposed upon himself a stricter test than was required, he was entitled to take into account the relevant circumstances surrounding the injury, in order to arrive at his determination. I agree with his finding that the incident involved an allegation of a less serious matter of child abuse, which ought to have been dealt with as set out in the Procedures document. The manner in which notice was given to Ms Pembroke, and the way in which she was dealt with, particularly in light of the fact that she had reported her quite different version of the incident first, is well documented and does not need to be restated.
Finally, I find that it was reasonably open to the Arbitrator to determine that the Appellant Employer failed to demonstrate that its actions were objectively reasonable, and that as a consequence, it “is therefore unable to rely on the defence available to it in section 11A, for causing the Applicant’s psychological injury.”
No error of fact, law or discretion having been demonstrated, which could result in a different outcome in this matter, this ground of appeal fails.
DECISION
The appeal is not successful. The decision of the Arbitrator dated 7 March 2007 is confirmed.
COSTS
Ms Pembroke submits that the Appellant Employer should pay her costs in relation to the substantive proceedings and in both appeals. Acting Deputy President Handley made a formal order in the first appeal on 10 August 2006, in the following terms: “There is no order as to the costs of this appeal.” He also revoked the whole of the Arbitrator’s decision, the subject of that appeal, including the Arbitrator’s order for costs.
However, given that the instant appeal has been unsuccessful, and that the decision of the Arbitrator has been confirmed, his award of costs in that decision stands.
The Director General of Education and Training is ordered to pay Ms Pembroke’s costs of this appeal.
Gary Byron
Deputy President
1 August 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
1
12
0