Doherty v Secretary, Department of Education
[2021] NSWPIC 118
•14 May 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Doherty v Secretary, Department of Education [2021] NSWPIC 118 |
| APPLICANT: | Timothy Doherty |
| RESPONDENT: | Secretary, Department of Education |
| MEMBER: | Ms Jill Toohey |
| DATE OF DECISION: | 14 May 2021 |
| CATCHWORDS: | WORKERS COMPENSATION- Psychological injury; claim for weekly payments and section 60 expenses; respondent accepted applicant had a psychological disorder to which his employment was the main contributing factor; whether injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline and/or performance appraisal; whether applicant had capacity for employment; Held- finding that some action was with respect to discipline and or performance appraisal; disciplinary action six years earlier and subsequent to date of injury was not relevantly part of the process; lack of evidence of notice to the applicant and matters to be discussed at meetings; evidence unclear as to process; finding that respondent had not discharged its onus to establish that its relevant action was reasonable; applicant had no current capacity as claimed; award for the applicant. |
| DETERMINATIONS MADE: | 1. The applicant sustained psychological injury arising out of or in the course of his employment with the respondent, with deemed date 11 March 2019. 2. The applicant’s employment was the main contributing factor to his injury. 3. The applicant’s injury was not wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal and/or discipline. 4. The applicant had no current work capacity from 19 September 2020 and continuing. |
| ORDERS MADE | 5. The respondent is to pay weekly compensation to the applicant pursuant to section 37 of the Workers Compensation Act1987 at the rate of $1,600 per week from 19 September 2020 to date and continuing. 6. The respondent is to pay the applicant’s reasonably necessary medical expenses relating to his psychological injury pursuant to section 60 of the Workers Compensation Act1987 on production of accounts, receipts or Medicare Notice of Charge. |
STATEMENT OF REASONS
BACKGROUND
Timothy Doherty (the applicant) claims compensation for psychological injury arising out of or in the course of his employment as a teacher by the Secretary, Department of Education (the respondent) with deemed date 11 March 2019.
Mr Doherty claims he was subjected to bullying and harassment after he reported concerns about the presence of asbestos at the school where he worked. He first became concerned in late 2011 when asbestos was found during repairs to the school toilets.
On 16 November 2018, Mr Doherty says, he found “reliable evidence” that he and others had been exposed to asbestos and that the school principal, Jennifer Pilon, was responsible. He called the respondent’s Workplace Health and Safety Directorate (WH&SD) and made what he describes as “a public interest disclosure”.
Mr Doherty claims his disclosure led to reprisals, bullying and harassment by Ms Pilon in particular, and collusion by others. Ms Pilon made “duplicitous assertions about his work efficiency” and subjected him to other unfair management tactics. He attended a meeting in December 2018 to discuss the allegations but declined to attend further meetings in January and February 2019. He last attended work on 26 February 2019.
Mr Doherty claims weekly compensation at the rate of $1600 from 19 September 2020 and ongoing, and medical expenses of $2135.80. There is no dispute as to his pre-injury weekly earnings (PIAWE).
The respondent issued dispute notices on 26 August 2020 and 8 December 2020. The respondent accepts that Mr Doherty sustained a psychological disorder to which his employment was the main contributing factor. However, relying on section 11A(1) of the Workers Compensation Act1987 (the Act), the respondent denies liability to compensate him on the ground that his psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to performance appraisal and/or discipline.
ISSUES FOR DETERMINATION
The parties agree that the issues remaining in dispute are:
(a) whether Mr Doherty’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to performance appraisal and/or discipline;
(b) whether Mr Doherty had capacity for employment during the period claimed;
(c) whether he is entitled to medical expenses.
PROCEDURE BEFORE THE COMMISSION
The parties attended a conciliation/arbitration hearing on 6 April 2021. Mr Craig Tanner of counsel appeared for Mr Doherty. Mr Ross Hanrahan of counsel appeared for the respondent. There was insufficient time at the hearing for parties to conclude oral submissions, and I made directions for submissions to be concluded in writing.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
EVIDENCE
Documentary Evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attachments;
(b) Reply and attachments;
(c) Application to Admit Late Documents (AALD) lodged by the applicant on 8 April 2021, and attachments.
Oral Evidence
Neither party sought leave to adduce oral evidence or cross-examine any witness.
FINDINGS AND REASONS
Mr Doherty’s evidence
Mr Doherty lodged a claim for compensation on 20 January 2020.[1] He stated he was injured on 16 November 2018 due to “whistleblowing effects of maladministration of the site manager on the health implications of the children of the school’’ for which he suffered “reprisals and retributions by the site manager” and psychological harm and symptoms consistent with PTSD.[2] (Mr Doherty refers to the principal, Ms Pilon, as “the site manager”).
[1] ARD at page 20
[2] ARD at page 22
Mr Doherty’s evidence is set out in a statement given to an investigator on 17 April 2020, not all of which is directly relevant to the issue to be determined. For example, he alleges “parallel illegal wrongdoings” by Ms Pilon in relation to other employees. The following is a summary of the salient points.
Mr Doherty has worked with the Department of Education since 1998, and as a full-time teacher at the Central Sydney Intensive English High School (CSIEHS) in inner Sydney since 2005. He states that he has never been subject to formal disciplinary action or formal performance action during his teaching career.
On 16 November 2018, Mr Doherty called the respondent’s WH&SD to “put on the public record that [he] had accrued reliable evidence” that staff and students of the school had been “exposed to the ingestion and inhalation of friable asbestos containing materials” from 2008 to 2012, which evidence incriminated Ms Pilon “as being negligently responsible.[3] He says his disclosure “struck a raw nerve”[4] and led to reprisals.
[3] ARD at page 6
[4] ARD at page 5
The “reliable evidence” concerned the alleged exposure of staff and students to asbestos following the removal of a hand dryer from a partition wall in the staff toilet in December 2011.
There is no dispute that chrysotile asbestos was detected in a sample of fibre cement material following removal of a hand dryer from a partition wall in the staff toilet on 19 December 2011.
Mr Doherty apparently took a lead role in raising concerns about his and other staff’s exposure to asbestos dust. It is not clear that there was in fact any exposure but there is no dispute that Mr Doherty perceived that he had been exposed. Investigations were undertaken and removal work completed.[5] A meeting was held on 6 June 2012 with staff identified as having been in the affected area. It is not clear what happened at this meeting but the matter appears to have gone no further.
[5] AALD attachments at page 8
In the meantime, on 29 March 2012, then relieving principal, Kathie Power, wrote to
Mr Doherty, referring to a meeting they had on 26 March at which they discussed incidents that had occurred on 21 March 2012, 22 March 2012 and 26 March 2012. Ms Power’s letter directed Mr Doherty to comply with various policies and procedures or be liable to remedial or disciplinary action. Details of Ms Power’s letter are below at [57]-[59].There is no evidence as to what followed Ms Power’s letter but nothing further of significance to the present claim appears to have happened until November 2018 when Mr Doherty made his call to the WH&SD. He claims his disclosure led to a cover-up and, when he telephoned the hotline some days later to follow up on his call, he was told there was no record of it. He claims collusion between departmental officers including his line manager, Mr Summons, and Ms Pilon, and between Ms Pilon and Departmental Director Richard Skinner.
Mr Doherty claims that, on the afternoon of 19 November 2018, the next working day after his disclosure, Ms Pilon began taking “public detrimental action beginning with duplicitous assertions relating to [his] work efficiency”[6], causing him psychological harm. She “violated professional conduct confidentiality” and publicly aired “highly confidential matters”. On multiple occasions, she would “furtively enter” the shared staff room and “leave letters outlining her duplicitous assertions”[7] on his desk when he was not there.
[6] ARD at page 8
[7] ARD at page 8
Mr Doherty states that, in December 2018, a meeting was scheduled to discuss Ms Pilon’s “duplicitous” assertions. He says she stacked the meeting so as to intimidate him, and cast a slur on his professional reputation; she misrepresented the agenda, breached his privacy, misrepresented facts, and breached procedural fairness. She made a range of allegations about his performance, and refused to resolve a workplace health and safety issue to do with air conditioning and ventilation.
According to Mr Doherty, Ms Pilon asserted that he was “teaching topics off program”, “not differentiating the teaching program” to accommodate a particular child, and “moving classes to rooms other than which were timetabled”. In doing so, he states, she breached a range of policies and legislation.
Mr Doherty says Ms Pilon arranged a “flawed and biased investigation” of an altercation they had when he took his chihuahua puppy into his science class as “a teaching enrichment material”. She maintained he was not permitted to have dogs on school grounds without her permission, which he describes as “excessive pedantry, hypocrisy and absurdity”[8] including because she had taken her own dog onto the school grounds.
[8] Reply at page 13
Mr Doherty alleges further serious wrongdoings over the years by Ms Pilon including “asphyxiation of child and traumatisation of child witnesses”, “deliberate misreporting”, “collusion with the WH&SD”, “near miss fatality from falling downstairs”, and “probable criminal legislative breaches”. He refers to “unlawful demands and threats”, bullying and malicious behaviour towards him, and breaches of anti-discrimination legislation in her dealings with other staff.
Statements of Jennifer Pilon
Response dated 6 March 2020 to Mr Doherty’s Incident Report Form
In a response dated 6 March 2020 to Mr Doherty’s Incident Report Form,[9] Ms Pilon states that, when work was undertaken on 19 December 2011, the “DE AMU Asbestos register” indicated there was no asbestos in the room. On 8 February 2012, Mr Doherty expressed concerns to the “WH&S Convener” that there might be asbestos dust in the room; he would not complete a hazard report form and asked her not to tell the principal. The Convener informed Ms Pilon, and the WH&S Committee immediately inspected the room. No dust was sighted but the room was locked. When work recommenced on 9 February 2012, Mr Doherty entered the room and disrupted the work. On advice, the room was sealed. Tests subsequently revealed some chrysotile in a sample from the room. Staff were informed of the test results at a meeting on 2 April 2012 and reassured that any exposure would have been low, and a strategy was put in place to deal with any staff concerns.
[9] Reply at page 13
Ms Pilon states that, before his departure on 25 February 2019, “Mr Doherty was being supported in his role as a classroom teacher through Teacher Performance conversations.”[10] The “support strategy” was put in place in consultation with others including the EPAC Teacher Improvement team and a support person of Mr Doherty’s choice, and he was also supported by Richard Skinner. Throughout his unapproved leave, Ms Pilon and others contacted Mr Doherty to see that he was “okay” and advise him of support available. He did not respond to any communication from her.
[10] Reply at page 14
Ms Pilon states that, when Mr Doherty returns to his workplace he will continue to be supported by the “Teacher Performance strategies that have been developed through consultation to assist him to return to his role as a teacher at this school”.
Statement dated 7 April 2020
In a statement to an investigator on 7 April 2020[11], Ms Pilon states she has been principal of CSIESH for 20 years. She describes Mr Doherty as “difficult to engage, very intelligent”[12] and “a few think he is wonderful and others avoid him”; it was not unusual for him to postpone or not attend meetings and he “has often been under the radar”.
[11] Reply a page 29
[12] Reply at page 31
Ms Pilon states the “current situation” arose when the school relocated temporarily and
Mr Doherty was not attending staff meetings or “adhering to protocol”, and was not attending every day. He appeared to be unable to cope with the move and with the “openness” of the building which had glass walls, and he would move his class to other areas without informing anyone. The air conditioning was not working consistently and another room was arranged but he would not use it consistently. He maintained that the science lab was not properly designed and was impregnated with mercury after thermometers had been dropped over the years.Ms Pilon states that, at the main site, Mr Doherty tried to keep his pushbike in the staff room rather than the covered bike rack available for staff and students. When asked to remove it, he left it in corridors and storerooms where it was a trip hazard. He was continually asked to use the bike rack but chained it to the school fence where it was a trip hazard and eventually chained it to a tree across the road. He would “push the boundaries” and was disruptive. Over the years he needed constant monitoring and there were “ongoing low level issues”[13].
[13] Reply at page 34
In 2018, Ms Pilon states, Mr Doherty “was not teaching properly” and she “consulted with EPAC teacher improvement team to assist [him] with support in the teaching program”.[14] They provided advice on how to support him with a teacher support program and they met with him to implement it. He was not across programs as he did not respond to emails or messages from his head teacher, he would not attend faculty meetings, and he was aggressive towards his head teacher whenever he tried to meet and talk with him.
[14] Reply at page 33. (I understand EPAC to refer to the Department’s Employee Performance and Conduct Area).
The first Teacher Performance support meeting was held on 5 December 2018. A union organiser was present to support Mr Doherty. Also present were the Deputy Principal, the Head Teacher e-Learning, Mr Doherty’s supervisor and herself. Ms Pilon states that
Mr Doherty was disruptive and kept blaming others and deflecting from himself. She called the meeting to an end when he became verbally aggressive and abusive towards her.Ms Pilon states that, after various attempts to organise another meeting because
Mr Doherty was absent from school at times, a meeting was scheduled for 20 December 2018. Support for Mr Doherty was organised and he was sent a reminder on 14 December 2018. He did not attend the meeting or two other “SDD days” that he was meant to attend. A further meeting was scheduled for 31 January 2019 but he did not attend, and he refused to attend a rescheduled meeting on 22 February 2019.Ms Pilon states that, on 22 February 2019, Mr Doherty was seen turning down the sound in the classroom and staff room so the bells and staff messages could not be heard. The Deputy Principal spoke to him about his lack of proper supervision while on playground duty, and that he allowed a fight to break out in his science class.
Ms Pilon states that Mr Doherty refused to attend a further meeting scheduled for 27 February 2019. He has not attended work since 26 February 2019 and would send a text message to the administration head teacher stating he was sick. He was extremely difficult to contact during this time and did not respond to attempts to contact him.
Ms Pilon cites other examples of matters that Mr Doherty was spoken to about including his refusal to provide enrolment figures to the administration, and taking his dog into the classroom and locking others out. She says that, over the years, she has offered him support and he would not respond or indicate that he needed any.
Statement of Richard Skinner
Richard Skinner is Director Educational Leadership - Port Jackson Network. In a statement dated 14 April 2020, he states that he has worked in the role for two and a half years.
Mr Skinner states that, on 2 November 2018, Ms Pilon notified him of an incident involving Mr Doherty, several members of staff and herself, in which he did not follow school procedures for marking his roll. When asked to provide it, Mr Doherty asked a student to ring the names through. According to Mr Skinner, Mr Doherty is aware that, if the roll is not completed each morning, it throws the whole school out as it is needed for other processes to occur.
Mr Skinner states that the school admin manager attended the classroom to speak to
Mr Doherty but he locked her out and had apparently asked the class to be quiet so he could pretend no one was there. The head teacher admin was contacted and attended the classroom where she found Mr Doherty had brought his dog into the class. When Ms Pilon approached him after the lesson to ascertain why the dog was at school, he reportedly became aggressive and argumentative.
After Ms Pilon complained to Mr Skinner about Mr Doherty’s behaviour, Mr Skinner states, he referred the incident to EPAC who asked him to manage her complaint. He took statements from the staff involved and invited Mr Doherty to an interview on 28 November 2018. Mr Doherty did not attend meetings scheduled prior to this time and it took a while for him to finally turn up. During the meeting, Mr Doherty acknowledged he brought the dog to the school, did not open the door when requested, and had not completed the daily roll. He acknowledged that the discussion with Ms Pilon had become heated but said she was equally responsible.
Mr Skinner states that it was clear that Mr Doherty had breached the Code of Conduct and he issued him with a letter of direction requiring him to “follow reasonable instructions from his supervisors; be courteous and responsive in dealing with colleagues, and comply with his obligations to ensure a safe workplace for himself and his colleagues”. Mr Skinner states that he was conscious it could have been a “one off” incident and Mr Doherty was provided “a first warning.”[15]
[15] Reply at page 43
Mr Skinner states that a “letter of direction was personally delivered by me and explained in depth to Mr Doherty at a meeting on 13 February 2019.”[16] He became aware that Ms Pilon had additional concerns about Mr Doherty’s teaching practices and was developing a Teacher Improvement program for him. Mr Skinner states “this was one of the reasons why I was the one who handled the complaint as I felt it better to separate the conduct issue from the efficiency matters, and so that the principal could focus on one issue.”
[16] Reply at page 43
According to Mr Skinner, on 22 February 2019, Mr Doherty did not attend a Teacher Improvement Meeting scheduled by Ms Pilon. When the headteacher admin collected him from class, he refused to talk to Ms Pilon and told the union organiser that the written invitation to the meeting from her was “only a crappy piece of paper”. Mr Skinner states this was a breach of not following a reasonable instruction.
Mr Skinner states that Ms Pilon reported the 22 February 2019 incident to him and, as he was monitoring Mr Doherty’s adherence to the letter of direction, he emailed Mr Doherty on 26 February 2019 requesting a meeting to discuss the incident. He asked Mr Doherty to reply by 1 March 2019 but, at the time of his statement, he had not received any response.
Mr Skinner states that Mr Doherty’s behaviour has had a “significant impact on the school in relation to non-attendance” and it is uncertain whether he will return or just turn up one day, his actions have had a significant impact on Ms Pilon, and the staff member who first reported his conduct has stated she felt threatened and unsafe in the workplace. Ms Pilon has since described to him the difficulties she has experienced with Mr Doherty in the past.
Medical evidence
Dr Ian Smith, Injury Management Consultant and general practitioner, was asked to undertake a file review for the purposes of assisting return to work planning for Mr Doherty.
In a report dated 24 February 2020, Dr Smith said he had been provided with few documents and had been unable to speak with Mr Doherty’s general practitioner, Dr Eric Lim. Based on his discussions with an officer from the Department of Education, Dr Smith said he understood that Mr Doherty had been potentially exposed to asbestos in 2012. He noted medical certificates issued in 2019. He noted that it was only when given a letter of direction by the principal to meet and attend work that he lodged a workers compensation claim. The officer advised that Mr Doherty “had been a whistle-blower but was not across the details.”[17]
[17] Reply at page 48
Dr Smith advised that various further information was required and Mr Doherty would require a face-to-face medical.
Dr Shannon Paisley, consultant psychiatrist, saw Mr Doherty for assessment via videoconference on 1 July 2020. Dr Paisley took a history of events broadly consistent with those already outlined. Mr Doherty told Dr Paisley he began to feel persecuted by management who criticised his performance as a teacher, made trivial complaints and made up allegations. He said there was no performance management plan.
Dr Paisley diagnosed an adjustment disorder and commented that Mr Doherty may have several personality traits suggestive of a Paranoid Personality Disorder. Given Mr Doherty’s reluctance to discuss details of his personal life, Dr Paisley said he could not confidently say that the work related causative events were the main contributing factor to the psychiatric disorder but it was plausible that they would be sufficient to cause an adjustment disorder.
Dr Paisley concluded that the employer’s “recurrent criticism” of Mr Doherty’s work performance and conduct was the predominant cause of his psychiatric disorder.
Dr Nirenjen St George, consultant psychiatrist, saw Mr Doherty for assessment on 8 September 2020 at the request of his solicitors. He took a history broadly consistent with that outlined above. Mr Doherty reported that, on 16 November 2018, he was cleaning his office when he noted “the extensive material he had collated on asbestos” and he felt a need to place the information on the public record and called the Asbestos Hotline.[18]
[18] ARD at page 44
Dr St George diagnosed Mr Doherty with an adjustment disorder with mixed anxiety and depressed mood which then triggered an anxiety disorder related to his perceived exposure to asbestos on school grounds. His disorder was aggravated by the attempted performance management in response to attempting to re-address his concerns regarding asbestos despite exposure.
Dr St George goes on to comment that the actions of Mr Doherty’s employer were unreasonable but that is not a matter for him to determine.
Dr David Kumagaya, psychiatrist, saw Mr Doherty for treatment. He reported to Dr Lim on 1 April 2020 that Mr Doherty had a work related psychiatric injury, diagnosed as adjustment disorder with mixed anxiety and depressed mood. Dr Kumagaya subsequently diagnosed major depressive disorder.
Respondent’s letters to Mr Doherty
The respondent has provided copies of two letters to Mr Doherty. The first, dated 29 March 2012, is from Kathy Power, relieving principal.[19] Ms Power refers to a meeting she had with Mr Doherty on 26 March 2012 at which they discussed incidents that had occurred on 21 March, 22 March and 26 March 2012.
[19] Reply at page 15
Ms Power cited Mr Doherty’s “removal of the folder of floor plans of the school kept in the front office with the words ‘Do not remove’ clearly written on the spine”; that he had entered a store room in the company of the General Assistant where he took photos of floor tiles and discussed whether they contained asbestos; that he had failed to attend a progress meeting for his class at recess and a further meeting at lunch the following day; and he had left his class to enter the school room to discuss with the worker that there was asbestos in the science laboratory.
The letter confirmed that, at their meeting, Ms Power had directed Mr Doherty to comply with policies and procedures in relation to attending progress meetings, not leaving a class to attend other matters, respecting colleagues, and complying with security regulations and other policies, that she would be monitoring his compliance with her directions and that failure could make him liable to remedial or disciplinary action including dismissal.
The second letter, dated 9 August 2019, is from Ms Pilon. It is headed “Letter of Direction: Unauthorised Absence”[20] and states that Ms Pilon is informed that Mr Doherty was due to attend for duty on 26 February 2019 but he had neither attended since that date nor made satisfactory contact with her as his principal. Additionally, he had refused to work as directed and attend meetings with her and other members of the Department as required.
[20] Reply at page 18
Ms Pilon’s letter advises Mr Doherty that his absence has been considered to be unauthorised and directs him to attend for duty on 19 August 2019; to meet with her at 8.20 am on that date and provide an explanation for his unauthorised absence and continued refusal to work as directed; and to attend for work on each subsequent work day after that date until such time as any applications for further leave has been approved. It concludes that failure to comply with any of those directions could put his employment in jeopardy because the Department might consider continuation of his unauthorised absence as evidence of abandonment of employment.
Department of Education documents
A direction was made at the teleconference on 12 February 2021 for production of “all HR file records, file notes, notes of meetings concerning performance and performance management” of Mr Doherty. Extracts of the documents produced were admitted into evidence.
The documents comprise a range of correspondence, emails and policy documents, all dated around 2011 and 2012, relating to events in 2011 and 2012. The only exception is an email from March 2009, in which Mr Doherty asks questions about a concrete cancer works program. There are no later documents, and none concerning events from November 2018 onwards.
Evidence about capacity
Dr Paisley reported on 11 July 2020 that Mr Doherty continued to experience anxiety and rumination about his situation, and symptoms include insomnia, fatigue, feelings of hopelessness and a loss of confidence. There had been minimal improvement in his symptoms and level of functioning despite not working for over a year, and the prognosis was guarded. He said Mr Doherty did not have the capacity to undertake his pre-injury employment as a teacher but he had partial capacity to work.
Dr Paisley said Mr Doherty “may be able to work, on a part time basis, up to 16 hours per week”[21] but was unlikely to ever successfully return to work with the respondent. He suggested Mr Doherty “may be better suited to do a non-teaching role such as in administration or perhaps 1:1 tutoring”, and “solitary roles may be preferable”.
[21] Reply at page 55
On 8 September 2020, Dr St George reported that Mr Doherty currently had no capacity for work and was unlikely to have any future capacity to work in the position he held at the time of his accident. He did not have capacity to work in any occupation and was psychiatrically unfit for vocational rehabilitation and re-training.
On 20 January 2020, Dr Eric Lim, general practitioner, provided a certificate in which he stated he had first seen Mr Doherty on that date. He had an adjustment disorder with trauma related symptoms on account of psychological injury following “reporting of several 0H&S” issues following which had been subjected to bullying and harassment. He had no current capacity for employment. Further certificates of capacity by Dr Lim and a number of different doctors all record that Mr Doherty has no current capacity for any work through to 13 January 2021.
The medical records include notes by psychologist, Carl Nielsen, on 14 September 2020 and 28 September 2020 that Mr Doherty was “unfit for work duties”[22]
[22] ARD at pages 96 and 97
The respondent’s submissions
Mr Hanrahan acknowledges that material found in the partition in the toilet in 2011 contained asbestos fibres which Mr Doherty believes he inhaled, and that he had legitimate concerns. However, the evidence shows the respondent’s response to what happened was reasonable, and it went about ensuring workplace health and safety procedures were followed.
Mr Doherty behaved in a way that alarmed others, and the principal pointed out to him she did not want him to cause alarm. He took it on himself in 2012 to abandon his class and speak to the person fixing the asbestos problem, preferring to try to manage the issue himself.Mr Hanrahan submits the letter to Mr Doherty of 29 March 2012 set out matters of concern and told him he was not to engage in that sort of conduct in future. The letter was in response to his concerns about asbestos. A meeting was called on 6 June 2012 to discuss the issue. Mr Hanrahan submits that the respondent accepted Mr Doherty’s complaint, took positive steps to investigate the matter, identified potential risks, and quickly took steps to remove them. After that, the respondent tried to discuss the matter with Mr Doherty and have a support arrangement put in place so he need not leave his class in order to go and discuss the asbestos.
Mr Hanrahan submits that, over following years, the problem with asbestos does not appear to have been mentioned. Then, Mr Doherty says that, in November 2018, he came across extensive material which he felt he had to put on the public record, and he called the hotline.
The respondent called a meeting on 5 December 2018 to discuss the matter with Mr Doherty but the evidence indicates that it ended with him making rude or abusive claims about the principal, and he did not attend any future meetings.
Mr Hanrahan submits it is impossible to identify bullying behaviour, even allowing that was Mr Doherty’s perception. He was invited to engage in a teacher support program but declined. It cannot be concluded that the respondent was unreasonable. The respondent has done everything possible to engage with Mr Doherty but he has refused to engage.
The applicant’s submissions
Mr Tanner’s submits that:
(a) the letter to Mr Doherty on 29 March 2012 from Ms Power could not conceivably be the cause of the psychological injury he is deemed to have received seven years later; further, there is no evidence which would indicate that it was served on Mr Doherty in accordance with a fair and reasonable disciplinary procedure;
(b) Ms Pilon’s letter of 9 August 2019 regarding Mr Doherty’s “Unauthorised Absence” cannot have caused the injury deemed to have been received in March 2019;
(c) there is no evidence that Mr Doherty was the subject of discipline or performance appraisal in the period preceding his injury;
(d) insofar as the respondent’s engagement with Mr Doherty in 2018 is treated as constituting action in respect of discipline or performance appraisal, it was unreasonable in that he was given no prior notice of the respects in which he was alleged to have engaged in misconduct warranting discipline, or the respects in which his performance was unsatisfactory and warranted a performance appraisal process;
(e) there is no evidence of a discrete performance appraisal process as contemplated by Geraghty CCJ in Irwin v Director General of School Education[23];
(f) Ms Pilon’s evidence, as set out at paragraph 26 of her statement, provides no substantive detail of misconduct or poor performance on the part of Mr Doherty; she describes the purpose of engaging with him as to “assist” and “support” him, action distinct from discipline or performance appraisal which would only become appropriate if a performance appraisal process had identified performance issues which warranted intervention, assistance and support;
(g) the respondent’s medical case, purportedly made out in Dr Paisley’s report, fails to consider and evaluate the contribution of Mr Doherty’s concerns about his exposure to asbestos to the development of his psychological condition. For
Dr Paisley to have concluded whether discipline or performance appraisal was the predominant cause of his injury, he would have to consider the competing contribution of Mr Doherty’s concern about his exposure to asbestos, and explain why that factor was outweighed by those relevant to section 11A.(h) Dr Paisley’s report does not assist the respondent to discharge its onus in respect of the question regarding the predominant cause of Mr Doherty’s injury. He refers to “criticisms of his work” as “the main work-related contributors to his condition” but criticism of a worker does not amount to action with regard to discipline or performance appraisal.
[23] Irwin v Director General of School Education (unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997 (Irwin)
Mr Tanner submits that the reasonableness of the respondent’s conduct in calling
Mr Doherty to a meeting in December 2018 needs to be considered with reference to the decision of Deputy President Roche in Bluescope Steel v Markovski[24], in particular at [196] where he said that basic fairness required the respondent to give Mr Markovski advance notice of the meeting, the agenda, and the opportunity to bring a support person. Mr Tanner submits there is no evidence of any advance notice of the meeting in December 2018 and the subject matter to be considered.[24] Bluescope Steel v Markovski [2013] NSWWCCPD 69 (Markovski)
In Mr Tanner’s submission, Mr Doherty’s preoccupation with the effects of his exposure to asbestos is described in Dr St George’s report and is confirmed by his conduct in contacting the WH&SD hotline six years after the hazard was detected. Mr Doherty’s evidence sets out his communications about his concerns and his perception of a cover-up. His perception of reprisal was informed by Ms Pilon’s conduct in calling him to a meeting about his work efficiency immediately following his disclosure. He describes a multitude of stressors triggered by Ms Pilon’s conduct which he considered to be designed to drive him from his employment and which cannot be conveniently batched as examples of discipline or performance appraisal.
With respect to Dr Paisley’s assertion that Mr Doherty may be able to work on a part time basis up to 16 hours a week, and may be better suited to a non-teaching role, Mr Tanner submits the impression is one of unfounded and tentative speculation. Dr St George is unequivocal in his opinion as to Mr Doherty’s work capacity including, on 8 September 2020, that he was psychiatrically unfit for vocational rehabilitation and re-training. Dr Lim and the other general practitioners who completed the certificates of capacity, and Mr Nielsen, came to the same conclusion.
Mr Tanner submits that Mr Doherty is entitled, on the evidence, to weekly compensation pursuant to section 37 of the Act at the rate of $1,600 per week, and to his reasonably necessary medical expenses pursuant to section 60 on production of accounts, receipts or Medicare Notice of Charge.
Submissions in reply
Mr Hanrahan provided written submissions in reply. The following is a summary of the salient points.
Mr Hanrahan submits that, on a broad view of the process as discussed in Department of Education and Training v Sinclair[25], Mr Doherty’s entire employment history and his absence to that date, the letter of 9 August 2019 constituted administrative necessity in anticipation that Mr Doherty might be willing to discuss concerns about his teaching duties.
[25] Department of Education and Training v Sinclair [2005] NSWCA 465 (Sinclair)
As to the submission that the letter to Mr Doherty on 29 March 2012 “could not conceivably be the cause of psychological injury”, Mr Hanrahan submits this is inconsistent with
Mr Tanner’s submission concerning Mr Doherty’s pre-occupation with the effects of his exposure to asbestos six years after the hazard was detected.Mr Hanrahan submits that Ms Power’s letter in 2012 directed Mr Doherty to attend meetings, perform his duties, not leave a class to attend other matters, respect other teachers, and comply with various regulations and procedures. It informed him that there was an ongoing expectation that he would comply with those directions. Mr Hanrahan submits that his refusal to accept simple orders was an ongoing management concern and it is reasonable to conclude that he abandoned his employment obligations while in pursuit of vindicating his personal “preoccupation”. The causal relationship between his call to the hotline and the letter dated 9 August 2019 is his unilateral, unauthorised absences from work in furtherance of his preoccupation.
Mr Hanrahan submits that Mr Doherty continued to agitate the same issue six years later at the expense of his teaching duties. It was accordingly reasonable of the school to require him to attend a “Teacher Performance support meeting”. The commencement of a performance appraisal process includes the invitation to express his views at a formal face-to-face meeting. It is not disputed that, at the first of those meetings, on 5 December 2018,
Mr Doherty was verbally aggressive and abusive.Mr Hanrahan submits that Mr Doherty’s perception was based on his own belligerent and defamatory accusations about Ms Pilon. In contrast, her reaction was consistent with the objective evidence of the actual risk and was a measured response to his need to make his disclosure to the hotline. She was more concerned with his overall performance and acted accordingly.
Given Mr Doherty’s unjustified allegations, Mr Hanrahan submits, the question arises as to how an employer should act with respect to employee’s performance when the individual is behaving in an unreasonable or irrational manner. An employee’s misbehaviour does not justify an unreasonable response, but it broadens the context in which the employer’s response is to be evaluated. Mr Hanrahan submits that the respondent’s actions were designed to assist and support Mr Doherty to continue in his teaching role and comply with the school’s requirements. The first step, to request a meeting, should be regarded as reasonable action with respect to performance appraisal following an appropriate investigation of the original complaint.
With reference to the description of performance appraisal set out by Geraghty J in Irwin,
Mr Hanrahan submits that, during the previous six years, Mr Doherty had not satisfied an “examination” of his teaching behaviour or passed the “test” of his willingness to cooperate, threshold requirements for his performance set out in the letter of 29 March 2012. His actions and allegations were provocative. His “disclosure” in November 2018 was a repeat performance of the 2012 complaints, and he seeks to justify absenting himself from work by characterising the school’s inquiries as reprisals intended to drive in from employment. He decided to stay a way to avoid the school’s reasonable responses to his behaviour.
Ms Pilon’s evidence is that “many different layers of assistance” have been made available to Mr Doherty. Mr Hanrahan submits that his persistent unreasonable accusations presented the respondent with a very difficult management problem, and he rejected all offers of support.
Mr Hanrahan submits that the reasonableness of the employer’s actions must be objectively ascertained. The school’s first step was a reasonable request to attend a meeting. His emotional condition results from his refusal to engage in a reasonable process. He was fairly invited to put his case. The school did not ignore his complaints but approached him in a serious and balanced way to ensure the adequate provision of his teaching services. Its approach was reasonable in all the circumstances, particularly having regard to the mental health of all other members of the school community.
Mr Hanrahan relies on Irwin in which the test of reasonableness is said to be “less demanding than … necessity, but more demanding than … convenience”. He submits that Mr Doherty’s behaviour demanded that the school respond in the interests of the school community, and that it was necessary to do so. Even so, Ms Pilon was aware of his sensitivity to the issue and was careful to extend to him the support that was available in the circumstances.
With respect to incapacity, Mr Hanrahan submits that payment of compensation to
Mr Doherty for 35 weeks from January to September 2020 is not an admission of liability but is nevertheless an objectively reasonable response on the part of the respondent in light of his non-attendance and failure to engage in a productive return to work.Mr Hanrahan submits that, if I find against the respondent on section 11A, Mr Doherty has full capacity to work at locations other than CSIEHS or, alternatively for 16 hours a week in a non-school environment. Dr Paisley opines that it is unlikely he would successfully return to any role within the Department, because he “remains distrustful and suspicious”.
Mr Hanrahan submits that his distrust and suspicion was in fact the result of the respondent’s reasonable actions in responding to his historical complaints and aberrant behaviour.In conclusion, it was reasonable, in all the circumstances, for the school to embark upon a conversation requiring Mr Doherty to comply with the ordinary requirements of the teaching tasks expected of him, and to request his attendance at the workplace to perform those duties.
Discussion
There is no dispute that Mr Doherty suffered a psychological injury with deemed date 11 March 2019 to which his employment with the respondent was the main contributing factor.
The first question for determination is whether the respondent has made out the defence in section 11A(1) of the 1987 Act.
Section 11A(1) 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 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.”
The evidence indicates that Mr Doherty would not have been an easy employee to deal with. His statement of evidence makes clear that he has little regard for Ms Pilon in particular. He makes unsubstantiated allegations about her unlawful conduct, including in matters that did not involve him directly, and his evidence in general illustrates his disdain for her and other departmental officers if he disagreed with them, and his unwillingness to accept challenge or what he perceived as criticism.[26]
It remains, however, for the respondent to establish, on the balance of probabilities that
Mr Doherty’s accepted injury was the result of the action within the meaning of section 11A(1), that it was the whole or predominant cause of Mr Doherty’s injury, and that such action was reasonable.
The respondent relies on reasonable action taken in respect of “performance appraisal and/or discipline”.
Was it action in respect of performance appraisal or discipline?
With respect to “performance appraisal”, the Commission has consistently applied the interpretation set out in Irwin by Geraghty CCJ:
“Furthermore, performance appraisal is a process, an established process involving various steps. Perhaps it will involve the completion of questionnaires and forms. It requires discussion between various parties about performance, written appraisal, sometimes even self-appraisal, maybe even a score. It is a process in which parties are engaged and knowingly engaged.
Performance appraisal is not a vague, continuing, informal process which begins on the first day of employment although, in a sense, we can say that we are continually under scrutiny and being appraised in somewhat the same way as students in a classroom are being scrutinised on a day-to-day basis. But ‘performance appraisal’ is somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited discrete process, with a recognised procedure to which the parties move in order to establish an employee’s efficiency and performance.”
In Kushwaha v Queanbeyan City Council[27] the Court said that discipline in s11A (1):
“has a primary meaning of learning or instruction imparted to a learner and maintained by training, by exercise or repetition. The narrow meaning of that word as punishment or chastisement is secondary to its primary meaning but is included in it.”
[27] Kushwaha v Queanbeyan City Council [2006] 23 NSWCCR; followed in ISS Property Services Pty Ltd v Milovanovic [2009] NSWWCCPD 27 (Milovanovic)
In Northern NSW Local Health Network v Heggie[28], the Court of Appeal, dealing with the meaning of “discipline” in section 11A(1), said a broad approach is to be taken to the expression “action with respect to discipline”, and it is “capable of extending to the entire process” involved in disciplinary action.
[28] Northern NSW Local Health Network v Heggie, [2013] NSWCA 255 (9 August 2013) (Heggie)
Considering the terms of Ms Power’s letter of 29 March 2012, I find that it was in respect of discipline. It cited four instances of conduct she had discussed with Mr Doherty at meetings over previous days and directed him not to engage in that conduct again, and to attend meetings that he had failed to attend. It advised that she would be monitoring his compliance with her directions and that failure could make him liable to remedial or disciplinary action including dismissal.
Ms Power’s action in meeting with Mr Doherty and writing to him appears to have been reasonable action in the circumstances. The evidence indicates that the respondent took steps in 2011 and 2012 to deal with concerns raised by Mr Doherty and other staff about asbestos. There is no evidence of actual exposure to asbestos dust but the respondent acknowledges that Mr Doherty was genuinely concerned.
However, regardless of whether or not it was reasonable action at that time, there is no evidence of further action with respect to discipline, or performance appraisal, until the events of November 2018. There is no evidence of how, if at all, Ms Power monitored
Mr Doherty’s compliance with her directions. There is no evidence of his failure to comply with her directions.
Ms Pilon says Mr Doherty would “push the boundaries” and was disruptive, and needed “constant monitoring over the years”. There is no evidence as to what that “constant monitoring” comprised. It is not clear what Ms Pilon means by Mr Doherty “has often been under the radar” or what were the “ongoing low level issues”. There is no evidence of any action in respect of his conduct or performance between 2012 and around the end of 2018.
Even on a broad view, the respondent’s action with respect to discipline in 2012 is not part of a continuing process, The fact that in 2018 Mr Doherty re-agitated the “asbestos issue” does not make it so, even if his behaviour in 2018 was similar to that six years earlier.
Coming to November and December 2018, the timing and sequence of events is not entirely clear.
Mr Doherty claims it was his “disclosure” to the hotline on 18 November 2018 that led to reprisals, starting the next day, including being called to a meeting.
Ms Pilon states that “in 2018” Mr Doherty “was not teaching properly” and she “consulted with EPAC teacher improvement team to assist [him] with support in the teaching program”.[29] The details of what led to the “Teacher Performance conversations” and “teacher performance support” that was put in place before Mr Doherty left work on 25 February 2019 are not clear. It is not clear in what respects he was “not teaching properly”. Ms Pilon states that the first “Teacher Performance support meeting” was held on 5 December 2018.
[29] Reply at page 33
Going by Ms Pilon’s statement that Mr Doherty was “not across programs” because he did not respond to emails or messages from his head teacher, that he would not attend faculty meetings, and that he was aggressive towards his head teacher whenever he tried to meet and talk with him, the purpose of the meeting on 5 December 2018 appears to have had elements of discipline, performance appraisal and “support”. Just because Ms Pilon describes its purpose as to “assist” and “support” Mr Doherty does not preclude a finding that it was in fact in respect of discipline or performance appraisal if, considering all of the circumstances, that is what the evidence shows.
I do not accept that Ms Pilon and others engaged in “reprisals” against Mr Doherty for his “disclosure” to the hotline. Apart from the improbability of conduct such as “furtively entering” the staff room and leaving notes about him, the evidence shows that a process aimed at dealing with Mr Doherty’s conduct and/or efficiency was in train before he made his call on 18 November 2018.
According to Mr Skinner, Ms Pilon notified him on 2 November 2018 of the incident when
Mr Doherty did not follow school procedures for marking his role. Whether the incident occurred that day is not clear but nothing turns on this. It appears to be the same date on which Mr Doherty was found to have taken his puppy into class, and when he locked a head teacher out of the class and became aggressive and argumentative.In any event, Mr Skinner states that, after Ms Pilon complained to him about Mr Doherty’s behaviour, he invited Mr Doherty to an interview on 28 November 2018. Mr Doherty evidently attended this meeting because Mr Skinner says “it took a while for him to finally turn up”.
Mr Doherty acknowledged he brought the dog to school, did not open the door when requested, and had not completed the daily roll.Mr Skinner states that it was clear that Mr Doherty had breached the Code of Conduct and he issued him with a letter of direction requiring him to “follow reasonable instructions from his supervisors; be courteous and responsive in dealing with colleagues, and comply with his obligations to ensure a safe workplace for himself and his colleagues”. Mr Skinner states that he was conscious it could have been a “one off” incident and Mr Doherty was provided a “first warning”.
It appears that Mr Skinner’s interaction with Mr Doherty was in the nature of discipline, although it is difficult to determine what the action actually comprised and when, because
Mr Skinner goes on to refer to a meeting on 13 February 2019 at which he “personally delivered” a letter of direction to Mr Doherty. In any event, Mr Skinner states that he was aware of Ms Pilon’s concerns about Mr Doherty’s teaching practices and thought it better that he handle “the conduct issue” so that she could deal separately with “the efficiency matters”.Considering all of the evidence, and despite some lack of detail in Ms Pilon’s and
Mr Skinner’s evidence, I conclude that, more probably than not, a process was in train from sometime in November 2018 that can reasonably be characterised as “action relating to discipline and/or performance appraisal”.Ms Pilon’s “letter of direction” to Mr Doherty on 9 August 2019 came over four months after his last attendance. Given its contents, it was clearly action with respect to discipline but it cannot have been causative of injury deemed to have been sustained on 19 March 2019. Even if it did form part of relevant action with respect to discipline, it seems odd that,
Mr Doherty having absented himself from teaching without explanation, it took the respondent over four months to take action.
Was it reasonable action?
In Irwin, Geraghty CCJ said:
“... The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of reasonableness is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
In Heggie, AJA Sackville said[30] with respect to discipline, but with equal application to performance appraisal:
“The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.”
[30] At [59]
In Sinclair, Spigelman CJ observed that the entire process must be looked at to see if it was reasonable action within section 11A, including looking at the circumstances surrounding the action, both before and after the action.
In determining whether the respondent’s action was reasonable, I do not consider that events in 2011 and 2012, including Ms Power’s letter, are relevant. Those events form some of the background to Mr Doherty’s “disclosure”, and it must have been frustrating for Ms Pilon and others when he re-agitated the asbestos issue after seven years, especially in circumstances where he was being called to account.
However, events in 2011 and 2012 do not in my view form part of what came later. What Ms Pilon meant by “he flew under the radar” is not clear but it suggests that Mr Doherty did not attract adverse attention by way discipline or performance appraisal. The “entire process” of discipline and/or performance appraisal did not extend over seven years. There was no evidence of continuity of a process in any real sense. As I have already said, regardless of whether the respondent’s action was reasonable at that time, there is no evidence of any attention to Mr Doherty by reason of his conduct or performance between 2012 and around the end of 2018.
Whether the asbestos issue genuinely played on Mr Doherty’s mind after 2012, or whether he conveniently resurrected it and claims reprisals and stayed away to avoid a reasonable response to his behaviour, the respondent still has to establish that its action was reasonable.
It appears that the first meeting that Mr Doherty was asked to attend was on 28 November 2018. Mr Skinner’s statement that he dealt with the “conduct issue” so that Ms Pilon could deal separately with the “efficiency issue” seems reasonable in the circumstances, given that the complaint about Mr Doherty’s conduct apparently came from Ms Pilon.
However, there is no evidence as to when or how Mr Doherty was notified of the meeting or what he was told was to be discussed. There is no evidence as to whether it was to be formal or informal. It is not clear who attended. Mr Skinner says he took statements from “the staff involved”; he does not say whether he put those statements to Mr Doherty and, if so, how. It is not clear on what basis, and specifically what respects, Mr Skinner determined that Mr Doherty had breached the Code of Conduct. It is not clear why Mr Skinner thought it could have been a “one off” incident and gave Mr Doherty a “first warning”.
It is not clear how the first warning was delivered or whether it advised Mr Doherty of consequences should the “the incident” be repeated, although it appears it may have been the letter that Mr Skinner “personally delivered” to Mr Doherty at a meeting on 13 February 2019. A copy is not in evidence.
There is no evidence as to when or how Mr Doherty was given notice of the “Teacher Performance support meeting” on 5 December 2018. He evidently had notice because a number of others were present including a union representative to support him. There is no evidence as to what in particular was to be discussed at the meeting other than it was to “support” and “assist” Mr Doherty. It can only be inferred, from Mr Skinner’s statement that he was dealing with the conduct issues and Ms Pilon with efficiency issues, that it was to discuss Mr Doherty’s “efficiency”.
Ms Pilon states that Mr Doherty “was not teaching properly” but she offers no explanation as to how she reached that conclusion, or how he was not teaching properly. Assuming that discussion of “efficiency” equates with performance appraisal, I agree with Mr Tanner that it would reasonably involve prior notice to Mr Doherty as to how his performance was falling short so that he could meet those concerns. I am not satisfied on the evidence that in fact occurred.
In Markovski, Deputy President Roche said at [196] that “basic fairness”, in the circumstances of that case required that the employer give Mr Markovski “advance notice of the meeting, the agenda, and the opportunity to bring a support person.” Whether that is what is required in a particular case will depend on the circumstances. Assuming they were required in this case, it appears that two of the requirements identified by Deputy President Roche may have been met, but it is not enough, for the respondent to discharge its onus, to leave it to be inferred what occurred.
According to Mr Skinner, on 22 February 2019, Mr Doherty did not attend a Teacher Improvement Meeting scheduled by Ms Pilon. When the headteacher admin collected him from class, he refused to talk to Ms Pilon and told the union organiser that the written invitation to the meeting from her was “only a crappy piece of paper”.
Mr Skinner states that Ms Pilon reported the 22 February 2019 incident to him. As he was monitoring Mr Doherty’s adherence to “the letter of direction”, Mr Skinner emailed him on 26 February 2019 requesting a meeting to discuss this incident. He asked Mr Doherty to reply by 1 March 2019 but there was no response.
For reasons which are not clear, none of the documents referred to by Ms Pilon and
Mr Skinner are in evidence. It is not clear whether Mr Skinner’s invitation to Mr Doherty to a meeting on 28 November 2018 was in writing but, if so, it is not in evidence. The same applies to the meeting on 5 December 2018 with Ms Pilon. The letter of direction that
Mr Skinner personally delivered on 13 February 2019 is not in evidence. The written invitation to the meeting on 22 February 2019 which Mr Doherty apparently described as “only a crappy piece of paper” is not in evidence, and nor is Mr Skinner’s email dated 26 February 2019 asking him to attend a meeting to discuss what happened on 22 February 2019. If the respondent had determined to engage in a disciplinary process, it could be expected those concerns with the put to Mr Doherty in writing. There is no evidence that occurred.
A whole course of conduct may be reasonable action with respect to discipline or performance appraisal even if particular steps are not,[31] and it may be possible to infer from witness statements, even without particular documents, the action was reasonable. However, in this case there is such a lack of detail and evidence as to the specific purpose of meetings throughout the process in 2018 and 2019, when and how Mr Doherty was notified, and what actually happened at the meetings, that I am not satisfied that the process overall was reasonable.
[31] Sinclair
I am not satisfied that the respondent has discharged its onus to establish, on the balance of probability, that Mr Doherty’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline and or performance appraisal.
Given the finding that the action relied on was not reasonable action in respect of discipline and or performance appraisal, the respondent’s defence fails. It is not necessary to determine Mr Doherty’s accepted injury was wholly or predominantly caused by the respondent’s action.
Capacity
Mr Hanrahan submits that, if I find against the respondent on section 11A, Mr Doherty has full capacity to work in locations other than CSIEHS, alternatively for 16 hours a week in a non-school environment. In this regard, Mr Hanrahan relies on Dr Paisley’s opinion.
Mr Tanner submits that Dr Paisley’s assertion that Mr Doherty “may be able to work on a part-time basis up to 16 hours a week” and “may be better suited to do a non-teaching role” such as administration or tutoring leaves and impression of “unfounded and tentative speculation”. It is probably more than that because Dr Paisley also states that that
Mr Doherty had partial capacity, although he was not fit to return to his substantive position at CSIEHS.However, I find the weight of the evidence supports the conclusion that Mr Doherty has had no capacity for employment from 19 September 2020 and continuing. On 8 September 2020, Dr St George was unequivocally of the opinion that Mr Doherty had no current capacity and was psychiatrically unfit for vocational rehabilitation and re-training. Mr Nielsen came to the same conclusion as have the general practitioners who have provided certificates of capacity. I consider that more weight should be given to their opinions than to that of
Dr Paisley who saw Mr Doherty on one occasion.I find the respondent liable to make weekly compensation payments as claimed and to pay reasonably necessary medical expenses.
CONCLUSION
For these reasons, I find that the respondent has not discharged its onus of establishing on the balance of probabilities that Mr Doherty’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of it with respect to discipline and or performance appraisal.
Further, that Mr Doherty has had no current capacity for employment from 8 September 2020 and continuing, and is entitled to reasonably necessary medical expenses pursuant to section 60 of the 1987 Act.
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