Farmer v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Farmer v State of New South Wales (NSW Police Force) [2023] NSWPIC 531
APPLICANT:	Paula Farmer
RESPONDENT:	State of New South Wales (NSW Police Force)
MEMBER:	Christopher Wood
DATE OF DECISION:	9 October 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; agreed by the parties that applicant had a psychological injury but respondent contended it did not arise out of her employment as she was on leave from service with the respondent at the time a search warrant was executed by officers of the respondent at her home; applicant stood down and suspended from duty on full pay while criminal charges against her and other serving officers proceeded; respondent also alleged such injury was wholly or predominantly caused by a reasonable action taken by it for the purposes of section 11A; in this case discipline; respondent in seeking to discharge its accepted onus of proof relied in part on redacted documents; limited evidence on of the basis of the respondent’s decision to carry out the disciplinary process; what it knew or could have known by reasonable enquiry; North New South Wales Local Area Health Network v Heggie, Jeffrey v Lentpile, Commission of Police v Linahan, and Commission of Police v Minehan discussed; Held – the applicant suffers from a psychological injury arising out of her employment with the respondent; the respondent had not discharged its onus of proof under section 11A and the Commission could not be satisfied on balance that its actions for the purposes of section 11A were reasonable; award for the applicant with the respondent to pay the applicant’s reasonable and necessarily incurred expenses pursuant to section 60.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant suffered a psychological injury arising out of her employment with the respondent, the deemed date of injury being 21 May 2020. 2. The respondent has failed to establish that the disciplinary action taken by it, which gave rise to the applicant’s injury, was reasonable for the purposes of its defence pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). 3. The respondent is to pay the applicant’s medical expenses pursuant to s 60 of the 1987 Act.

STATEMENT OF REASONS

BACKGROUND

The applicant is a detective senior constable employed by the respondent. She commenced her service in 2007.
In April 2020, while stationed at the Parkes Police Station where she worked as a detective, the applicant became aware of an investigation in relation to the sergeant to whom she reported. She learned from the senior officer present at the time the information was imparted to her, that the sergeant had been suspended from duty. She was told she would only be able to communicate with him in relation to his welfare.
Shortly after this period she herself became the subject of an investigation by the respondent in relation to her conduct.
On 21 May 2020, the applicant was the subject of a search warrant at her home conducted by several police officers following which she was stood down. On 25 May 2020, she was formally suspended from duty. She was the subject of criminal charges, and it was conceded by the respondent, subject to media coverage. All the charges against the applicant have since been discontinued.
The applicant says she has suffered a psychological injury as a result of the events of May 2020 and contends that being stood down has had a significant negative impact on her wellbeing.
The applicant brings a claim for compensation limited to medical expenses pursuant to s 60 of the 1987 Act only. The respondent while accepting her psychological condition, contests that she suffered such injury in the course of or arising out of her employment. The primary basis of its reply however, is a denial of liability to make payments of compensation by reason of the provisions of s 11A(1) of the 1987 Act, specifically reasonable actions taken with respect to discipline.

ISSUES FOR DETERMINATION

The parties agreed that the only matters to be determined are whether the applicant has suffered an injury for the purpose of s 4 of the 1987 Act and in turn whether such injury was a consequence of reasonable action taken by it with respect discipline which is a defence available to it under s 11A(1).

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

The matter was listed before me for teleconference on 15 June 2023. At that time, I enquired as to the prospects of the parties resolving their differences. The respondent advised that its underlying investigation of the matters which gave rise to the standing down and subsequent criminal charging of the applicant had been recently wrapped up and the allegations against her dismissed.
Some late material in support of the respondent’s case was foreshadowed. A further medico-legal examination of the applicant was to take place with Dr Young on 11 July 2023, which was said may lead to resolution of the claim. The applicant did not oppose the respondent’s proposed course and allowing for the convenience of both parties the matter was set down for conciliation/arbitration on 3 August 2023.
Mr McManamey of counsel appeared for the applicant and Ms Goodman of counsel appeared for the respondent.
During the conciliation phase of proceedings on 3 August 2023 and as is recorded in the transcript to which I have had reference in preparing these reasons for decision, I expressed my concerns about the contents or lack thereof in some of the respondent’s late served documents. A significant portion of that material had been redacted. The applicant did not object to the late served material being considered by the Commission but wished to address the Commission as to how it ought to assess the material in determining the application.
Some further time was allowed for the parties to see if they could bridge their differences, but the respondent wished to maintain its s 11A defence and the matter necessarily had to proceed to arbitration.
I am satisfied I have used my best endeavours to bring the parties together and that they understood the issues to be decided.

EVIDENCE
Documentary evidence

The following documents were in evidence before the Commission and were considered in making this decision:
(a)    The ARD and attachments;
(b)    The Reply and attachments, and
(c)    The respondent’s late served material to which the applicant did not object, albeit reserving its rights in relation to submissions (AALD).
I have also had regard to the oral transcript which is available for all parties on the Commission’s file. There was some delay in obtaining the full transcript as a result of some technical difficulties.

FINDINGS AND REASONS
Applicant’s evidence

Given the narrow focus of the dispute between the parties, I do not propose to go into great detail in relation to the medical evidence before the Commission. There is no real dispute in relation to the medical evidence although Ms Goodman did note the applicant’s medico legal specialist, Dr Khan, was something of an “outlier”.
Turning to the factual background to the claim, the applicant has provided a statement dated 5 May 2023. She has worked for the respondent since 2007 with no past psychiatric history. She says she has recovered from all past injuries detailed in her statement. She does make passing reference to various traumatic experiences throughout the course of her employment.
The applicant says that in April 2020 she learned that her sergeant, who is identified in other documents as Sergeant Howard, was the subject of an investigation. She had concerns in relation to the procedures that were being followed by the respondent in its investigation of Sergeant Howard. Around that time, she was called into a meeting with the station’s inspector, superintendent, and the regional commander and in hearing about the investigation says she was told to report any misconduct. She was also told she could speak with Sergeant Howard[1] about his welfare.
[1] I note here that from other documents and submissions made by counsel that such contact was only to be made in relation to Sergeant Howard’s welfare.
On 21 May 2020, the officers investigating the matters which concerned Sergeant Howard and apparently other serving officers, executed a warrant on the Parkes Police Station. At this time the applicant was not present having been on annual leave for a few days. She was at home and a search warrant was executed there that morning. Several officers including senior officers were present. Her husband and son were at home at the time. She was stood down from duty. She contends the search warrant was groundless and refers to the events of the day as an ambush.
At a further meeting on 25 May 2020, the applicant was subject to an interview process in her home conducted by three senior officers. Her husband was present but left to collect her son from school. She was charged with various offences some of which carried lengthy periods of incarceration. She was suspended from duties. The charges are not detailed in the applicant’s statement but are evidenced in part by Local Court attendance notices included in the late served material from the respondent. The charges inter alia relate to attempting to pervert the court of justice and hindering an investigation referred to as ‘Strike Force Jagelman’.
The applicant was the subject of media reporting. She said she felt embarrassed and deep shame knowing she was innocent.
Proceedings involving her colleagues all were resolved with findings of not guilty. She continued to maintain her innocence and in August 2022, charges in the District Court were withdrawn and Local Court matters were withdrawn sometime later in February 2023.[2]
[2] Paragraphs 53 and 54 of Applicant’s Statement, ARD pages 3 and 4. Also admitted by the respondent.
The applicant says she “continuously felt isolated, ostracised, unsupported, ignored and dismissed by her employer”.[3] She has struggled with feelings of hopelessness, worthlessness, suicidal ideation, loss of self-confidence and loss of self-esteem, amongst other things.[4]
[3] Paragraph 63 of the Applicant’s statement, page 4 ARD.
[4] Paragraph 67 of the Applicant’s statement, page 4 ARD.
She was referred by her general practitioner, Dr Atanu Paul, to a psychologist, Mr Tim Manning who she says has provided her with a tremendous amount of support.
The applicant has also seen Dr Abdal Khan at the request of her solicitors. His medico-legal report to the solicitors confirms a diagnosis of major depressive disorder and generalised anxiety order, satisfying the DSM-5 criteria. He expresses the view that the applicant’s employment with the respondent was the main contributing factor to her injury.
While there is no real dispute concerning the psychological sequelae of the respondent’s actions, I turn briefly to the report of Mr Tim Manning[5], the applicant’s treating psychologist, to further reference the applicant’s allegations.
[5] ARD page 19.
Mr Manning took a history of the applicant presenting to him in a highly emotional state after being charged with serious offences and having been stood down by the respondent. He also records the applicant’s home being the subject of a search warrant and her being very confused and upset as she did not think she had committed any offences.
He records his opinion that the manner in which the search warrant was executed, and the delay of formal charges directly impacts the applicant’s psychological injury.

Respondent’s evidence

Beyond the s 78 Notice setting out the basis of the dispute set out above, the respondent has filed a factual investigation report dated 26 August 2020 prepared by Procare. The report annexes two statements being those of Steven Kentwell, Local Area Commander, dated
24 August 2020 and Scott Rayner, Inspector, dated 26 August 2020. It is the former which underpinned many of the respondent’s submissions.
Commander Kentwell says he arrived at the Parkes unit where the applicant worked on
[6] Paragraph 8 of Reply, page 18.
14 February 2020[6]. At that time there had been an ongoing investigation and on 9 April 2020 that an officer (clearly Sergeant Howard) was suspended. He says that around 14 April 2020 he, Chief Inspector (CI) Grassick, and another Assistant Commissioner spoke with the applicant. The discussion centred around the welfare of the suspended officer. That was a matter of concern to the applicant and he agrees it was indicated to her that she could contact him regarding his welfare and welfare only. He noted the applicant “teared up” and “seemed more angry than anything”.
Commander Kentwell says that on 21 May 2020 a warrant was executed on Parkes Police Station and a number of officers were spoken to about “criminal and departmental issues”.
He notes that the applicant would have been spoken to directly at that time. He did not know who spoke to her directly and does not record that he was aware the applicant was at home.[7] Commander Kentwell says that he can understand that the events of that day would have been stressing to anyone.
[7] I note it seems to be agreed that the applicant was on leave on the relevant day and was spoken to at her home.
Based on the interviews which involved numerous other officers, he made the decision to stand the applicant down. He says the applicant would have known why she was being stood down.
Subsequently, Commander Kentwell confirms that he, along with Inspector Grassick and a Sergant Hadley, attended the applicant’s home where he met with the applicant and her husband. A search warrant was executed and charges were laid. He confirms the applicant was suspended at that time. He accepts that events of both dates 21 May and 25 May 2020 would have been a “shock to the system” and “she was in shock as you would be”. He appointed CI Scott Raynor as the applicant’s welfare officer.
CI Raynor’s statement confirms he was appointed as the applicant’s welfare officer and speaks positively of his relationship with her and says that when she first left the workplace she was distraught and clearly emotional. He goes on to detail other aspects of his interactions with the applicant which are at least in passing relevant to her psychological condition.[8]
[8] Again given the broad agreement by the medical practitioners as to whether or not matters other than that of which the applicant complains which are detailed in the respondent’s witness statements are neither her nor there.
Commander Kentwell suggested to Procare that it could interview CI Grassick[9]. There is no statement from this officer before the Commission. Similarly, CI Raynor suggested Inspector David Cooper could be spoken to.[10]
[9] Reply pages 15 and 20.
[10] Reply page 24.

Late served material

The respondent also relies on late served documents it says are relevant to the assessment of the disciplinary process. These include a document headed “Fact Sheet – Detective Senior Constable Paula Farmer”[11]. This document does not appear to me to be a standard fact sheet. In any event it is a five page document which has been heavily redacted. Of the five pages, approximately three have been redacted.
[11] AALD pages 1 – 5.
Ms Goodman in submissions said that the redactions had been carried out by the respondent itself. The fact sheet such as it is, and in respect of which I have expressed reservations, concerns the matters set out above. There was undoubtedly a criminal investigation of Sergeant Howard who held the position of team leader at the Central West Police District based at Parkes where the applicant was also employed. There was a co-accused involved in the investigation, a Detective John O’Brien.
The “fact sheet”, the author of which is not recorded, confirms that a meeting was held amongst officers stationed at Parkes involving amongst others, the officers referred to above. Officers were encouraged to come forward with any knowledge of serious misconduct.[12]
[12] Page 2 AALD.
The following page and a half of the fact sheet is redacted before there then appears reference to the applicant. It is said that she is “aware of the requirement for these details to remain covert to ensure success in future deployments”. It then outlines the requirement for confidentiality around police investigations and express reference is made to Strike Force Jagleman. Paragraph 5 of the fact sheet records that the allegations centre around the accused and co-accused acting both independently and at times in concert to seek information about who was investigating Detective Howard, by what means and the nature of that investigation.[13]
[13] AALD page 5.
The document concludes by recording the fact of the search warrant being executed at the applicant’s home, the applicant having been absent from the workplace on annual leave. It also confirms the further visit on 25 May 2020 when the applicant was charged. The Court attendance notices in relation to the charges against the applicant then follow.
The late served material also includes a transcript of the police attendance at the applicant’s home on 21 May 2020.[14] It sets out the conversations between the applicant and what seems to be at least six officers. I note references to Officers Detective Sergeant O’Hare, an unidentified female officer, Detective Inspector Chanelle Munroe, Senior Sergeant Tung, Sergeant Kane, Detective Senior Constable Hooker.[15]
[14] AALD page 8.
[15] AALD pages 10 and 11.
The transcript records that one of the officers said:
“So ultimately what we are looking for today is your mobile phone.”
The applicant queried “in relation to what offence”. The applicant clearly pressed the matter. The officer to whom she was speaking noted the offences related to misconduct “with the public office” (sic), attempting to pervert the course of justice and investigation of a serious indictable offence.
The applicant seemingly voluntarily handed her mobile phone over at that time and cautions were issued.
The applicant was asked if she had any concerns about the way the search warrant was conducted[16], to which she replied ‘no’.
[16] AALD page 25.
The applicant was advised that she would be stood down for 48 hours and the commander would be in contact with her later that day.[17]
[17] AALD page 28.
The following document in the AALD is a redacted charge sheet from the Office of the Director of Public Prosecutions (DPP). I infer here this relates to charges in the District Court involving the applicant, specifically that the applicant “did provide information to Steven Brett Howard regarding the police investigation into … Howard, with the intent to pervert the course of justice” and a second allegation related to hinder the investigation of a serious indictable offence by Howard. As noted in my overview above, those charges were dropped prior to the Local Court charges being withdrawn.

SUBMISSIONS

Before inviting submissions, I placed on record my reservations concerning the Commission being put in a position where it was being asked to make a determination concerning the applicability of s 11A to a disciplinary process in circumstances where it had redacted documents before it. I had already been informed by Ms Goodman that the respondent was the party which had carried out the redactions.

Respondent’s submissions

Although injury in the course of or arising out of employment remained in issue, as this was a secondary component of the respondent’s position, I invited Ms Goodman for the respondent to address first. The respondent agrees it bears the onus in making out its defence under s 11A.

Injury

The essence of the respondent’s position was that as the applicant was absent from the workplace on leave at the time the warrant was executed at Parkes Police Station and that she faced criminal charges, took her otherwise undisputed psychological injury outside the course of her employment.

The respondent noted 21 May 2020 was the day the search warrant was executed at the applicant’s home. The applicant was on annual leave. She had been on annual leave for a few days prior. Ms Goodman pointed out the applicant did not in particular appear to object to the way in which the search warrant was executed. She said at the end of the day there was no contest between the medical practitioners; the applicant sustained injury as a result of the execution of the search warrant on 21 May 2020.
Although she did not elaborate any further, Ms Goodman said the respondent’s case was that in respect of injury, as the applicant was at home at the time of and the matter related to criminal charges, the applicant was not at the time in the course of her employment. No authorities were relied on in making submissions that the injury was not sustained in or arose of the course employment.

Section 11A(1) – Reasonable disciplinary process

The respondent says that the Commission is required to look at the evidence at the time the search warrant was executed; what was being investigated at the time, why was it necessary to stand the applicant down and subsequently suspend her from duties.
Ms Goodman repeated the chronology set out above in relation to the evidence filed with the Commission starting with Commander Kentwell’s arrival at the Parkes Police Station and referenced his statement concerning an ongoing investigation.
She went on to note the discussion concerning Sergeant Howards suspension. Ms Goodman noted the applicant’s concern in relation to how the investigations were being conducted and rightly says that does not matter in so far as the matters informing the respondent’s s 11A defence are concerned.[18]
[18] The test as to reasonableness is an objective one by reference to the actions taken which caused the injury.
Ms Goodman referred to the warrant being executed at the Parkes Police Station on
[19] Not in respect of the applicant.
21 May 2020[19]. She then went on to the events of 25 May 2020 when officers of the respondent attended the applicant’s home and she was stood down by Commander Kentwell. Ms Goodman opined that dealing with the applicant at home was a “soft way of doing so” rather than having her attend Parkes Police Station for charging. She was informed if the offences and was served with three criminal charges.
Ms Goodman drew attention to the appointment of a welfare officer and what she termed the “unfortunate demise” of the applicant’s mother and the need for the applicant to have someone to talk to. Ms Goodman emphasised that the preceding matters informed the factual matrix and that is what the Commission is to have regard to rather than what happened later on.
After addressing the chronology of events, Ms Goodman then gave emphasis to the decision in North New South Wales Local Area Health Network v Heggie[20] (Heggie) which she said was important as far as the respondent’s case is concerned.
[20] [2013] NSWCA 255.
The respondent says Sackville AJA’s decision in that case informs what the Commission ought have regard to, partly because His Honour’s reasons refer to other relevant decisions in relation to s 11A dealing with reasonable process including, as in that case, the standing down of an employee during an investigative process.[21]
[21] Jeffrey v Lentpile and Commission of Police v Linahan.
Ms Goodman referenced paragraph 52 of His Honour’s judgment as what the respondent relied upon, specifically that:
“A broad view has been taken of the expression ‘action with or on respect to discipline’. In Department of Education and Training v Sinclair, Spigelman CJ observed...that the formulation in s11A “extends to the entire process involved in… discipline including the course of an investigation”. His Honour also noted that actions with respect to discipline usually involves a series of steps which cumulatively can have psychological effects”.
Ms Goodman noted that there was no dispute in this case, as there wasn’t in Heggie that in fact the whole or predominant cause of the applicant’s condition was the actions that the employer had taken.
Ms Goodman submitted that in this case it was easy to isolate the step with respect to discipline; it was the execution of the search warrant.
In turning to reasonableness, Ms Goodman continued her reference to Sackville AJA’s decision:
“In Jeffrey v Lintipal Pty Limited (2008) NSWCA 138 this Court held that the test of reasonableness is objective:…This decision establishes that an employer’s actions with respect to discipline is not necessarily reasonable because the action (in this case the transfer of a cleaner from a school) is taken in compliance with a contractual obligation owed to a third party to another after certain allegations were made against the worker.”
Ms Goodman gave emphasis to the decision of Bastin, JA in Lintipal Pty Limited (2008) NSWCA 138 (Jeffery) quoted by Sackville AJA:
“The reasonableness of the employer’s actions in transferring the cleaner had to be assessed by reference to the facts giving rise to the transfer”.
The respondent says these decisions emphasise that with respect to what is reasonable, it is the facts giving rise to, in this case the execution of a search warrant and the respondent’s actions in standing the applicant down with full pay, that the Commission is to have regard to.
Ms Goodman in continuing her submissions again drawing on Heggie then noted Justice Sackville’s reference to the judgment of Forster, J in Commission of Police v Minehan [2003] NSWCA 239 (Minehan) where his Honour said:
“the test of reasonableness is objective requiring the rights of the employees to be assessed against the objectives of the employer.”
Ms Goodman noted the respondent was involved in a serious investigation not only involving the worker but involving her sergeant and extending to other officers in relation to conspiracy and a potential criminal offence.
The respondent emphasised that the Commission is to not only look at the applicant’s rights but also those of the employer to make sure that its investigations are carried out appropriately. Ms Goodman says that is where the warrant and the other documents which had been redacted become important.
Ms Goodman again made reference to Sackville AJA’s judgement in Heggie and his discussion of the facts in Minehan where His Honour observed:
“… serious allegations were made against a Police officer. Another officer conducted a preliminary enquiry with a view to determining whether the complaint required a full investigation to be undertaken. The preliminary enquiry determined that the complaint was ‘ridiculous’ and that no further action should be taken. None the less the Police office subject to the complaint was told that the matter would be referred to a corruption prevention unit for ‘intelligence purposes…
the Compensation Court found the that the employer had not discharged the onus under s 11A(1) of the Workers Compensation Act. Specifically the Commissioner had not taken the interests of the officer into account in determining whether further resources should have been expended on an investigation into the complaint, the Court of Appeal dismissed an appeal by the Commissioner on the ground that the Compensation Court had not erred in law.”
Ms Goodman says there is a difference between Minehan and the facts currently before the Commission in that what His Honour Justice Sackville says at paragraph 58 (of his judgment) is the action of the employer in Minehan that caused the psychological injury was not the modest preliminary step it was the referral of an apparently groundless complaint to the corruption prevention unit.
The respondent says that is not the case here and pointed to the fact sheet which appears in the late served material to submit its actions were not groundless.
That fact sheet is as I have already noted was heavily redacted, but Ms Goodman referenced the following aspects of that material. She noted it concerned an internal investigation conducted by the New South Wales Police Force Professional Standards Command and the Centre West District.
The document goes on to detail aspects of the applicant’s service and the investigation also involved Detective Sergeant Howard, his role in the Police Force and the document notes that a further accused is Detective John O’Brien. The document records the applicant and her co-accused O’Brien reported to Detective Sergeant Howard between 2011 and 2015.
Ms Goodman continued her submissions by reference to a further section of the redacted document at which point I again drew her attention to the problem that the redaction of documents posed in the context of her presenting it as a summary of events to which the Commission should have regard on the question of reasonableness.
Ms Goodman said that she was addressing the parts that were relevant to the respondent’s case (setting the factual background) and the redacted parts need not concern the Commission.
Ms Goodman said that was why she was emphasising the decision in Heggie and the matter had arising in Heggie, pointing again to Justice Sackville’s decision and that;
“the reasonableness of disciplinary action is to be assessed exclusively by reference to circumstances that were known or should have been known to the employer at the time ….and that the reasonableness of an employers actions for the purposes of s11A is to be determined by the facts that were known to the employer at the time or that could have been ascertained by reasonably diligent enquiry.”
The respondent says that it is important to understand that the applicant was caught up in an investigation involving her segreant, as was at least one other officer, and the charges were serious involving an attempt to pervert the course of justice and maximum prison sentence of up to 14 years.
The respondent says that even if the Commission chooses to ignore the redacted documents, the search warrant is before the Commission. The respondent points to the details of the charges as follows:
“On the 9^th of April 2020 on 6pm on 21^st May 2020 at Parkes that the applicant being the holder of a public office in the course of or connected that that public office did wilfully mis-conduct herself to wit, wilfully neglect of duty without a reasonable excuse or justification where such misconduct is serious and meriting criminal punishment having regard to the responsibilities of that office.”
Ms Goodman also referenced the other charges brought against the applicant. She submitted the fact that the charges were later withdrawn is not relevant.
She says that there was evidence before the officer who laid the charges that the applicant was guilty of these offences.
Ms Goodman’s submissions also addressed the transcript of the respondent’s officers’ attendance at the applicant’s premises to execute the search warrant. She noted there was a “lot going on and it (the transcript) goes for many pages”.
Ms Goodman referenced that at the conclusion of that event the applicant was asked if she had any concerns about the way the warrant had been executed.[22] To which she relied in the negative. In response to an observation to me Ms Goodman agreed that the respondent’s contention was there was nothing remarkable about what occurred in the execution of the warrant.
[22] AALD page 25.
Ms Goodman re-emphasised the decision in Heggie and the importance of determining what was reasonable action by an employer by reference to the facts known to the employer at the time or which could have been reasonably ascertained at the time. She noted that it is not uncommon to stand employees down when there is an investigation and in the case of the respondent here it was to protect the integrity of the investigation where there had been a suspicion of interference by the applicant. The applicant was paid her wages until the charges were withdrawn. It is the reasonableness of the suspension which is not unusual that is in question. It was suspected that the applicant may have been hindering the investigation.
The final matter addressed by the respondent in relation to its s 11A defence was the absence of any other evidence going to the background to the decision to stand the applicant down. Ms Goodman pointed to ongoing investigations and an email in the later served material.[23]
[23] AALD page 44.
That document is an email passing between the respondent’s solicitor and an officer of the respondent identified as ‘Karen’. The text of the email relevant reads as follows:
“Question (from the respondent’s solicitor)[24]: “Could you please provide written information due to the internal investigation still being in progress, you are unable to provide us with any information or documentation regarding the internal investigation to us?
[24] Words in brackets are my addition
Answer (from Karen): “As the investigation is ongoing we are unable to provide an information or documentation at this point (sic), this may be reviewed when investigation is finalised”.
In conclusion, Ms Goodman briefly addressed the medical evidence noting that there was no question that the applicant’s injury was “wholly or predominately” (caused by the actions taken by the respondent).[25]
[25] Albeit that the actions were not said to be arising out of employment.
The respondent says “the doctors all say that the applicant has a psychological condition or a psychiatric condition” arising out of the actions of the respondent.

Applicant’s submissions
Injury

In briefly engaging with the respondent’s proposition that as the applicant was on holiday her injury did not arise out of her employment, Mr McManamey submitted that being on annual leave did not preclude a matter arising out of the course of employment because the relevant circumstances in the applicant’s case are the investigation, the search warrant, the suspension and the charging which all related to activity as a police officer. This is a very clear case of arising out of employment.

Section 11A

From the outset Mr McManamey stressed that s 11A is a defence and it is a respondent who carries the onus. He emphasised that the actions have to be reasonable; it is not for the applicant to show they were unreasonable.
The applicant submitted that parts of the respondent’s submissions could be described as “evidence from the bar table” in terms of what the Commission ought to conclude about “certain things”. In relation to the importance of assessing the actions of the respondent by reference to what was known by it at the time, the applicant says that the difficulty is “there is no evidence”. As to what was known at the time the decision was made to proceed against the applicant in the applicant says the most the Commission really knows about the respondent’s processes at the time comes from Commander Kentwell. Mr McManamey noted in passing that it was strange that Commander Kentwell, who was the applicant’s most senior officer, was also charged with conducting the investigation rather than it being externally driven. The applicant says that all we know from
Commander Kentwell is that an investigation had been going on for some time. The applicant says that we don’t know what the investigation was or what the basis for it was.
Referencing Heggie, on point Mr McManamey noted that despite all the investigations in that case, the allegations were baseless so in this case unless the respondent can persuade the Commission that this was a properly grounded investigation based upon proper evidence and which justified the steps being taken, then it must fail; in this case the respondent had simply have put nothing before the Commission. The Commission does not know whether Sergeant Howard had been validly investigated.
Mr McManamey noted that the applicant had been told she could speak to Sergeant Howard to check on his welfare and had been clearly told she could contact him but the next thing the Commission is aware of is that the warrant is being executed. The applicant says we do not know the basis for the warrant and based on the sequence of events a decision had been made to stand the applicant down before the execution of the search warrant; in other words anything found through the execution of the warrant was not the basis of the respondent’s actions.
The applicant emphasises that the Commission can have no idea what transpired in between time and what the respondent was investigating in substance. The applicant also suggests that there are problems with the decision being made to stand the applicant down prior to the execution of the search warrant following which she was suspended.
The applicant says the Commission does not know what the respondent was investigating at the time it executed the search warrant and Commander Kentwell’s statement does not assist. All the Commission knows is that there were charges and at some point someone within the DPP decided to drop the charges. Mr McManamey submitted it might have been of interest if DPP advice had been filed and in his opinion it should have been. No one from the respondent has gone into print about its reasoning. He says that it does not mean anything that the respondent says that it raised serious charges against the applicant and others and therefore its actions were reasonable. It means nothing at all in the applicant’s submissions but way of example it could have been in fact that the conduct was a minor breach of protocol and it had been elevated by someone into the charges that were brought. There is no explanation for the redactions in the late filed material.
The applicant says that the s 11A defence must fail because the respondent has nothing at all to establish it carried out an investigation on a proper basis on which a decision was made to execute a search warrant at 7.25am on the applicant at her home with her husband and child present. If all the respondent wanted was the applicant’s mobile phone, it poses the question why the applicant was not asked to merely to come into the police station. She handed it over without complaint because she had nothing to hide which Mr McManamey submitted suggests the whole decision to “raid” the applicant’s home was an overreaction.
The applicant says the only conclusion the Commission can draw in relation to the redacted documents is that they do not assist the respondent’s case.
The applicant says that what the respondent is saying in its case is because the NSW Police conducted the investigation and it levelled charges (against the applicant) the Commission should therefore infer what it did was soundly based. Mr McManamey concluded by making general reference (as a matter of common knowledge) to cases involving malicious prosecution against the NSW Police and the findings of the Wood Royal Commission[26] as examples of cases that should not have been brought by the respondent or, as in Heggie, involved a frivolous investigation.
[26] Royal Commission 1995 conducted by Justice James Wood into the NSW Police Force.
Besides referencing Heggie, Mr McManamey did not go so far as to make any criticism of the respondent in this instance beyond the way in which it had not discharged its onus.

Respondent’s submissions in reply

I asked Ms Goodman to again revisit the issue of the redacted documents and how I could be satisfied that the respondent had discharged its onus. Ms Goodman conceded there are difficulties. She again emphasised the material before the Commission demonstrating the investigation into Sergeant Howard.
Ms Goodman referenced the applicant’s own statement to note that it was quite clear the applicant knew an investigation was taking place.[27]
[27] Paragraph 24, ARD page 2.
Ms Goodman says she does not need the redacted document to show what was happening at the time.
She again addressed the facts as the respondent presented them, which it was a matter of fact that there was a police investigation into the conduct of Sergeant Howard.
Ms Goodman said that the respondent was not asking the Commission to infer simply because of the email passing between its solicitor and the respondent that there was nothing that should be done or could not be put before the Commission to assist it.

Ms Goodman emphasised Commander Kentwell’s statement in relation to the search warrants which were executed on 21 May 2020 both at Parkes Police Station and the applicant’s home. She drew attention Commander Kentwell’s observation as a result of the allegation and interviews that day, he was caused to make the decision he did. In other words, the applicant had made an error in her submissions on point.
The respondent says that the facts are quite clear and the Commission is to conclude that the s 11A defence is made out.

REASONS FOR DECISION
Injury

The respondent’s position was that because the applicant was on leave at the time the search warrant was executed and she faced criminal charges, her psychological injury which had necessitated her seeking medical assistance benefits under s 60 of the 1987 Act, did not arise out of or in the course of her employment.
Neither counsel dwelt for very long on this area of dispute which is telling.
Whilst committing a criminal act may well take the applicant and the respondent out of the realms of an employment relationship, applying common-sense principles, I find that the applicant’s conceded psychological condition arose out of or in the course of her employment. As the applicant noted the investigation, the warrant and suspension were all connected with employment. The provisions of s 4 are satisfied.

Section 11A – Reasonable disciplinary action

The respondent rightly places great emphasis on the decision of the Court of Appeal in Heggie and in particular the judgment of Sackville, AJA.
In that case, the worker had been alleged to have been physically and verbally aggressive when dealing with a mentally ill patient. He had been suspended on full pay pending an investigation in a not dissimilar way to the applicant here. The worker claimed that he suffered a psychological injury as a result of his suspension, again in a not dissimilar factual overlap with the matters before the Commission here. The s 11A defence was raised and in his judgment Sackville, AJA set out the factors that were to be considered in determining whether or not the action taken by the employer was reasonable. These included:
(a)    That a broad view was to be taken when considering action taken with respect to discipline;
(b)    That the injury be wholly or predominately caused by the reasonable action taken or proposed to be taken by the employer;
(c)    That the employer bears the onus with respect to the notion of whether actions were reasonable, and
(d)    The test of reasonableness remains objective based on the facts of a particular case and the task of a decision maker includes consideration of the actions taken in the context of causing injury.[28]
[28] Heggie at paragraph 59.
His Honour went on to say that:
“The statutory language directs attention to whether the psychological injury was cause by reasonable disciplinary action or proposed to be taken by the employer. Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information a person could of obtained had he or she made reasonable enquiries or exercised reasonable care. The language does not readily lend itself to interpretation which would allow disciplinary action (or action of any other kind identified in s11A(i)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”[29]
[29] Heggie paragraph 61.
In determining what is reasonable, I am to apply an objective test. The test is a question of fact to be weighed in relation to the evidence before me.
I am satisfied that there is no doubt that the sequence of events was as presented by the respondent. There was an investigation of Sergeant Howard and potentially other officers at the Parkes Police Station. There were certain events during that process from mid April to 21 May 2020.
The applicant’s own statement broadly corroborates the bare facts as presented by the respondent.
As Ms Goodman said, the applicant herself was aware that she was being investigated.
Having got that far in establishing these undisputed facts, the respondent is essentially asking the Commission to conclude that therefore its actions were reasonable. With respect to the respondent however, a mere narrative of certain events in the absence of what was actually known to the respondent at the time even accepting it was continuing its investigations is not helpful to the Commission is assessing the reasonableness of its actions.
When regard is had to Heggie, in the context of the respondent needing to discharge its onus, there are difficulties with the respondent’s case as presented in establishing sufficient facts which invite the conclusion of reasonableness. It is for the respondent to establish that the disciplinary process was reasonable. I agree the fact that charges were later dropped is not relevant. Evidence as to what the respondent knew or might by reasonable enquiry have known as at 21 May 2020 is not before the Commission. The simple fact that an investigation was underway, and charges were brought does not mean the respondent proceeded reasonably. Ms Goodman in pointing to and distinguishing Minehan noted that an investigation had been completed and the complaint was found to be frivolous, yet the disciplinary process continued.
Turning to Heggie, in the context of Commander Kentwell being satisfied it was appropriate to stand down certain officers on 21 May 2020 based on the interviews and investigations which had occurred, what relevant information Commander Kentwell had obtained before making his decision to stand the applicant and others down from normal duties is not available. Leaving aside the precise sequence of events in the bringing of the charges, Ms Goodman rightly acknowledged the difficulties for the respondent in her submissions in reply.
The Commission simply does not know whether the decision to proceed as the respondent did was appropriately or competently made or whether it was frivolous or perhaps at the other end of the spectrum, as Mr McManamey alluded, even motivated by a level of bad faith. I stress here that I make no, and cannot make, such finding on the latter but it does again underscore the difficulties the Commission faces in being satisfied that the respondent acted reasonably in the disciplinary process. Ms Goodman suggested in her submissions in reply that the applicant could have put her record of interview with the Police into evidence. With respect, that of course ignores the fact that it is the respondent which carries the onus to make out its defence.
I accept the respondent as an arm of the New South Wales government, dedicated to law enforcement and prevention crime, is in a special position necessarily operating under a chain of command in interacting with its officers. In the case of possible misconduct or criminal conduct it must necessarily operate in ways at variance with the civilian workplaces. Importantly however, it enjoys no special status in relation to discharging its onus of proof before the Commission. In other words, it is not enough for the respondent to essentially be saying the Commission ought to trust it in relation to its processes when determining its defence. The redaction of documents does not assist it. The Commission is unable to make any inferences adverse to or in favour of the respondent although it was suggested in making out its argument the respondent did not need those documents. If that is the case, the Commission is stuck with a mere narrative of the events in April and May 2020 and it cannot, on balance, objectively determine that the disciplinary process was a reasonable one. This is so even if, because of an ongoing investigation, some matters were not known to it.
There were other aspects of the material before the Commission which also cause concern as to the reasonableness of the process. While I again note the respondent operates in special circumstances with wide ranging powers of investigation, as the applicant’s counsel submitted, it seems unusual that Commander Kentwell was both the applicant’s commanding officer and heading up the investigation. The execution of the search warrant at the applicant’s home on the morning of 21 May 2020 was conducted by some six or so police officers with the applicant’s only support person being her husband. A young child was also present and on this aspect alone, were an analogous event to have occurred in a civilian workplace, there would be legitimate concerns about whether a reasonable or fair process had occurred.
That having been said, in the absence of any persuasive evidence as to what factors informed the decision to proceed as the respondent did beyond the narration of events and reference to matters transpiring out of interviews impacting its decision to stand the applicant down, I find that the respondent has not discharged its onus in maintaining a defence under s 11A.
I also find that the applicant suffered a psychological injury in the course of her employment with the deemed date of injury being 21 May 2020.
There will be an award for the applicant and the respondent is to pay her reasonable and necessarily incurred medical expenses pursuant to s 60 on production of the usual supporting documents.

[2023] NSWPIC 531

9 October 2023