Fell v Willoughby City Council
[2025] NSWPICPD 21
•19 March 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Fell v Willoughby City Council [2025] NSWPICPD 21 |
APPELLANT: | David Fell |
RESPONDENT: | Willoughby City Council |
INSURER: | StateCover Mutual Limited |
FILE NUMBER: | A1-W8198/23 |
PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
DATE OF APPEAL DECISION: | 19 March 2025 |
ORDERS MADE ON APPEAL: | 1. The application for an extension of the time to appeal pursuant to s 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. |
CATCHWORDS: | WORKERS COMPENSATION – Extension of time to appeal – s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 and r 133A(5) of the Personal Injury Commission Rules 2021 – whether in exceptional circumstances, to lose the right to appeal would work a demonstrable and substantial injustice – Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 applied – s 11A(1) of the Workers Compensation Act 1987 – reasonable action taken with respect to discipline – Department of Education and Training v Sinclair [2005] NSWCA 465; VanVliet v Landscape Enterprises Pty Ltd [2022] NSWPICPD 49 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr G Young, counsel | |
| Law Partners Personal Injury Lawyers | |
| Respondent: | |
| Mr D Baran, counsel | |
| BBW Lawyers | |
DECISION UNDER APPEAL: | Fell v Willoughby City Council [2024] NSWPIC 224 |
SENIOR MEMBER: | Ms K Haddock |
DATE OF MEMBER’S DECISION: | 1 May 2024 |
INTRODUCTION AND BACKGROUND
Mr David Fell (the appellant) was employed by Willoughby City Council (the respondent) as a ranger. His duties included parking inspections, processing of penalty notices and administration work.
On 18 December 2022, the appellant was inspecting mobility parking scheme permits when he noticed that a permit was displayed on the driver’s side of a particular vehicle rather than on the required passenger’s side. As the couple who owned the car approached, the appellant asked to be shown the permit, and a verbal altercation ensued. The female passenger subsequently lodged a complaint about the appellant, which was communicated to him on 23 December 2022. The appellant provided a response to the complaint on 24 January 2023. On 16 February 2023, the appellant was advised by letter that the complaint would be investigated. A meeting was scheduled for 21 February 2023, but rescheduled to 2 March 2023 at the request of the appellant to accommodate the attendance of the union representative as the appellant’s support person.
In early March 2023, the appellant was advised that because the person investigating the complaint was going on leave for two weeks, the investigation would take longer.
On 26 April 2023, the appellant was called in from the field to attend the respondent’s workplace. He arrived at about 5.05 pm and was handed a letter advising that there was to be a “Request to Show Cause Meeting” (the show cause letter) scheduled to occur at 10.30 am on 27 April 2023. The appellant spoke with the union representative that afternoon, who advised him that the respondent was required to give seven days’ notice of such a meeting.
The appellant ceased work prior to the meeting on 27 April 2023. He sought medical treatment and lodged a claim for workers compensation weekly payments and treatment expenses, alleging that he had suffered psychological injury. The respondent disputed the claim, asserting that:
(a) there was a factual dispute in relation to what was said by various representatives of the respondent;
(b) the appellant did not suffer an injury in the course of employment;
(c) the appellant’s employment was not the main contributing factor to the injury, and
(d) the appellant’s psychological injury was not compensable because it was wholly and predominantly caused by reasonable action taken by the respondent in respect of discipline, performance appraisal and the provision of employment benefits in accordance with s 11A(3) of the Workers Compensation Act 1987 (the 1987 Act).
The appellant commenced proceedings in the Commission and the dispute was allocated to a non-presidential member, Senior Member Haddock. Following receipt of written submissions from both parties, the Senior Member proceeded to determinate the dispute. She determined that the appellant suffered a psychological injury in the form of an aggravation, acceleration, exacerbation or deterioration of a disease pursuant to s 4(b)(ii) of the 1987 Act and that the appellant’s employment was the main contributing factor to the injury. She further determined that the appellant’s injury was wholly or predominantly caused by the respondent’s action in respect of discipline and, notwithstanding what she referred to as a “blemish” in respect of the short notice of the “show cause” meeting, the respondent’s actions were reasonable.
The appellant appeals the Senior Member’s decision, but only on the ground that the Senior Member erred in determining that the respondent’s actions were reasonable, given that the appellant was given less than 24 hours’ notice of the “show cause” meeting.
ON THE PAPERS
Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that the appeal can be determined on the basis of the written submissions of the parties and the documents in evidence.
I have had regard to Procedural Directions PIC2 and WC3; the documents and submissions of the parties that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum pursuant to ss 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
TIME
Section 352(4) of the 1998 Act provides that an appeal must be made within 28 days after the decision appealed against is made or a longer period determined or allowed in accordance with the Commission Rules.
The Senior Member’s Certificate of Determination was issued on 1 May 2024 so that, in accordance with s 352(4) of the 1998 Act, the last day for filing the appeal was 29 May 2024.
Rule 26(1)(a) and (b) of the Personal Injury Commission Rules 2021 (the 2021 Rules) provides that documents are taken to be received by the Commission:
“(a) at the time of entering the information system at the Commission, or
(b) if it is received after 5 pm—on the next working day.”
The appeal was filed at 6.27 pm on 29 May 2024. The appellant’s solicitor contacted the Commission by email at 6.31 pm to advise that the appeal was unable to be filed prior to 5 pm because of a “systems error.”
On 30 May 2024, a Delegate of the President issued a Direction to the parties, indicating that under r 6 of the 2021 Rules, the Commission may dispense with a requirement of those Rules in relation to particular Commission proceedings if satisfied it is appropriate to do so. The Delegate determined that he was satisfied that it was appropriate to dispense with r 26 and accordingly dispensed with that Rule and advised that the appeal application was taken to have been received on 29 May 2024.
On 6 June 2024, the respondent lodged an Application for Reconsideration (Reconsideration) of the Delegate’s Direction. The respondent asserted that r 6 does not confer upon the Delegate “a statutory power capable of permitting dispensation with a requirement as to time or the dispensation of a ‘deeming provision’.”[1]
[1] Respondent’s reconsideration submissions, [8].
Rule 6 of the 2021 Rules relevantly provides:
“6 Dispensing with requirements of Rules
(1) The Commission may, by order, dispense with a requirement of these Rules in relation to particular Commission proceedings if satisfied it is appropriate to do so.
(2) The President may, by order, dispense with a requirement of these Rules in relation to particular applicable proceedings, or particular kinds of applicable proceedings, if satisfied it is appropriate to do so.
…”
Rule 5 of the 2021 Rules defines “applicable proceedings” as, inter alia, Commission proceedings and “Commission proceedings” as proceedings before the Commission under the 2020 Act.
The function exercised by the Delegate was a function delegated to him by the President of the Commission in accordance with s 18(1)(b) of the 2020 Act, so that rule 6(2) of the 2021 Rules applies to the Delegate’s powers.
Upon receipt of the respondent’s application for reconsideration in which the Delegate’s power to make the dispensation order was challenged, the Delegate issued a further Direction dated 14 June 2024, in which he stayed the timetable set in his earlier direction. He provided the appellant with the opportunity to respond to the respondent’s reconsideration application and also provided the respondent with the opportunity to respond to the submissions made by the appellant. The appellant, of its own motion, lodged submissions in which he sought an extension of time to lodge the appeal.
Following receipt of those submissions, the Delegate issued a further Direction dated 10 July 2024 in which he revoked the suspension of the timetable and issued a new timetable. He noted that the appellant’s application for an extension of time would be considered by the Presidential Member to whom the matter was to be allocated.
THE APPLICATION FOR AN EXTENSION OF TIME TO LODGE THE APPEAL
The legislation
Section 352(4) provides that:
“The appeal must be made within—
(a) 28 days after the decision appealed against is made, or
(b) a longer period determined or allowed, whether generally or for the kind of proceedings, in accordance with the Commission rules.”
Rule 133A of the 2021 Rules relevantly provides:
“133A Extension of time for making certain applications
(1) This rule specifies the procedure for determining a period of time, longer than the statutory period, within which 1 of the following (a relevant application) may be made—
(a) an appeal under the 1998 Act, section 352,
…
Note—
The listed provisions specify that a relevant application must be made within the statutory period or a longer period determined or allowed in accordance with these Rules.
(2) A party seeking to make a relevant application after the end of the statutory period may make an additional application (an extension application) for an order determining a longer period within which the party may make the relevant application.
(3) An extension application—
(a) must be made at the same time as the relevant application to which it relates, and
(b) must be in the approved form, and
(c) must include full details of the arguments relied on in favour of granting the order, and
(d) is taken to form part of the relevant application for the purposes of the requirements relating to service under rules 123 and 129.
(4) The extension application must be decided by the following (the decision-maker)—
(a) for an appeal under the 1998 Act, section 352—a presidential member,
(b) otherwise—the President.
(5) The decision-maker may make the order if satisfied by the party making the extension application, in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.
(6) In this rule—
statutory period means—
(a) for the 1998 Act—the period specified in section 352(4)(a), and
…”
The appellant’s submissions
The appellant’s solicitor explains the process in which the appeal was prepared, lodged and served. He submits that there would be no prejudice to the respondent if the time to appeal is extended, given the delay in filing the appeal was only a period of one hour and 27 minutes. The appellant’s solicitor asserts that a refusal to extend the time would result in a demonstrable and substantial injustice to the appellant given that the Senior Member entered an award in favour of the respondent. He says that, as a consequence of the award for the respondent, the appellant is not in receipt of weekly payments and his treatment expenses for his psychological injury have not been met.
The appellant’s solicitor sets out the factors to be considered when dealing with an application for an extension of time identified by McHugh J in Gallo v Dawson,[2] that is:
(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties of the grant or refusal of the application for extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) the respondent’s right, after the expiry of the time to appeal, to rely upon the decision made.
[2] [1990] HCA 30.
The appellant’s solicitor attaches a chronology of events which comprises a list of work-related events occurring in the course of the appellant’s employment, the procedural history leading up to the issue of the Senior Member’s Certificate of Determination on 1 May 2024 and the filing of the appeal on 29 May 2024.
The appellant’s solicitor further provides a timeline of events that followed the receipt of the Certificate of Determination on 1 May 2024, indicating that the decision was forwarded to counsel on that day. He advises that he also discussed the decision on that day with counsel. He says that he discussed the decision with the appellant on 7 May 2024 and was given instructions to appeal the decision and those instructions were confirmed on 13 May 2024.
The appellant’s solicitor submits that on 7 May 2024, he instructed counsel to draft the submissions on appeal and advised counsel that the due date for filing the appeal was 29 May 2024. He says he gave further advice to the appellant in relation to the appeal process on 18 May 2024.
The appellant’s solicitor advises that on 29 May 2024 at 12.05 pm he contacted counsel by email requesting an update on the appeal submissions and counsel responded, advising that the submissions would be provided “in time.” The solicitor says that he was working from home that day. The appellant’s solicitor describes that from 4.30 pm, he noticed “recurring problems he was having with his home internet and connection to his law firm’s database” which “was also affecting his email inbox”.[3] He says that at 5 pm, he found counsel’s submissions in his emails but was unable to properly download them. The appellant’s solicitor indicates that he called his staff in the office that day to help compile the documents, but they did not have access to his email inbox so that at about 5.30 pm he went to a café to use the café’s wi-fi but his laptop would not allow him to download. He says he returned home at about 6 pm in order to drive to his office but found his internet connection was partially working, and at 6.27 pm he successfully lodged the appeal and emailed the Commission at 6.31 pm to advise of the reasons for the late filing of the appeal. He adds that on the morning of 30 May 2024, he served the sealed copy of the appeal on the respondent’s solicitor.
[3] Appellant’s extension of time submissions, p 4.
The appellant’s solicitor submits that the delay of one hour and 27 minutes was occasioned by unforeseeable technical issues and contends that any prejudice to the respondent would be minor in comparison to the consequences of a refusal to grant the appellant leave. The appellant’s solicitor reiterates that the decision precludes him from receiving weekly payments and payments of his treatment expenses, and in those circumstances, the appellant would suffer a substantial injustice if he was prevented from pursuing the appeal.
The appellant’s solicitor points out that the Application to Appeal Against Decision of a Member was served on the respondent at 12.29 pm on 30 May 2024. He submits that the dispute involves the operation of the defence available to the respondent in respect of s 11A of the 1998 Act, which precludes the appellant from receiving his statutory entitlements for his psychological injury.
The appellant’s solicitor submits that the real consequences of the granting of leave would be that the interests of justice were served, given the circumstances as to why the appeal was lodged late and that it was only a matter of one hour and 27 minutes out of time. The appellant’s solicitor says that, during the conduct of the case before the Senior Member, the respondent sought an extension of one day in which to file its submissions and the appellant consented to that application and the same courtesy was given to the appellant in respect of his submissions in reply.
In respect of the appellant’s prospects of success, the appellant’s solicitor indicates that the appellant relies upon his ground of appeal and submissions made in the appeal.
In respect of the respondent’s right to rely upon the decision made after the expiry of time, the appellant’s solicitor submits that the demonstrable and substantial injustice to the appellant would by far outweigh any prejudice to the respondent, in circumstances where the appeal was lodged only one hour and 27 minutes out of time on the final day to appeal, and in the context of sincere efforts made by the appellant’s solicitor to file the appeal within the prescribed time. The appellant’s solicitor again points to the liberty granted to the respondent to file his submissions one day late in the proceedings below.
The respondent’s submissions
The respondent refers to my decision in Penrith Rugby League Club Limited v Morrissey,[4] in which the appeal was lodged at 5.02 pm on the last day of the 28-day appeal period. The respondent says that despite the brief two-minute delay, the then Delegate of the Registrar directed the parties to lodge submissions as to why the time to appeal should be extended, including the appellant’s explanation as to what actions had been taken over the whole 28-day period. In that case, I determined that, in accordance with r 16.2(5) of the former Workers Compensation Commission Rules 2011 (the equivalent of r 133A(5)), there were “exceptional circumstances” but there was no demonstrable and substantial injustice if leave to appeal was not granted because the grounds of appeal raised no prospects of success. I therefore declined to extend the time to appeal. The respondent also refers to Bekkers v State of New South Wales,[5] in which Snell DP took the same approach.
[4] [2020] NSWWCCPD 62.
[5] [2018] NSWWCCPD 46.
The respondent submits that the sole ground of appeal in this appeal has no merit and thus an injustice would not occur if leave to extend the time was refused. The respondent submits that on that basis leave should not be granted.
Consideration of the application for extension of time
In accordance with r 133A(5), I can only extend the time to lodge the appeal if I am satisfied ‘in exceptional circumstances, that to lose the right to make the relevant application would work demonstrable and substantial injustice.’
Whether there are exceptional circumstances and whether the party seeking an extension can show demonstrable and substantial injustice would occur if leave were not granted, is “a composite expression in the rule to be dealt with within jurisdiction.”[6] I must therefore determine whether exceptional circumstances exist and whether a demonstrable or substantial injustice would occur if leave was not granted.
[6] Bryce v Department of Corrective Services [2009] NSWCA 188, [10], per Allsop P (Beazley and Giles JJA agreeing).
In Yacoub v Pilkington (Australia) Ltd,[7] Campbell JA explained what constitutes exceptional circumstances. His Honour concluded that:
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered;
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors;
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional;
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision, and
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case.” (citations omitted)
[7] [2007] NSWCA 290, [66].
A careful consideration of the facts in this matter discloses that both counsel for the appellant and the appellant’s solicitor were somewhat less than diligent in attending to the filing of the appeal. The practice of leaving the appeal to be filed to the 11th hour on the last available day is tempting fate and not a practice that should be followed. However, the complications relating to the appellant’s efforts at that time to file the appeal, which involved a combination of issues arising from technological difficulties, and which the appellant’s solicitor went to some lengths to overcome, tend to weigh in favour of concluding that exceptional circumstances exist. As the appeal was filed on the 28th day at a relatively short time after the time it was required to be filed, and the respondent was served with the sealed document just after midday on the following day, I can see no prejudice to the respondent, either in the preparation of its response to the appeal or in terms of the respondent’s right to rely upon the decision made.
On balance, I conclude that the combination of a number of unforeseen technical difficulties and the fact that the appeal was filed less than one and a half hours after the time to appeal had expired, together constitute exceptional circumstances. I am, however, required to also consider whether, in those exceptional circumstances a demonstrable or substantial injustice would occur if leave were not granted. In order to be so satisfied, I need to consider the merits of the appeal.
The appellant brings one ground of appeal, alleging:
“Error of fact and law in finding the respondent acted reasonably when he was given less than 24 hours’ notice to attend the Show Cause Meeting.”
Given the narrow compass of the appeal ground, it is not necessary to summarise the whole of the Senior Member’s reasons or all of the evidence. The following summaries are therefore limited to the matters that flow from the issue raised and from the substantive submissions made by the parties in respect of the appeal.
The evidence
The appellant’s statement
The appellant provided a statement dated 19 June 2023.[8] He described what occurred in the event involving a driver’s parking permit on 18 December 2022. He said that on 16 February 2023, he was handed a letter by Mr Mark Taylor advising that there was to be an investigation into the complaint lodged by the driver, and that there would be a meeting on 21 February 2023 in which he was to respond to the complaint. He said that he noticed that the complaint had identified seven separate points, which led him to believe that the matter was more complex and more serious than he had thought.
[8] Application to Resolve a Dispute (ARD), pp 1–22.
The appellant said that his union representative, Mr Thomas Gao, was not available to attend on 21 February 2023, so the meeting was re-scheduled to 2 March 2023. He said that in the period leading up to the meeting, he prepared a statement and a transcript of what had occurred on the day in question as accurately as he could recall.
The appellant said that, at the meeting, he was advised by Mr Taylor that Mr Taylor would need to make further enquiries in the matter and speak with the complainant. He indicated that at that stage, there was no response to his statement or to the transcript he had provided, which he considered was significant, and led him to the view that the matter was being abnormally more drawn out than in other cases.
The appellant advised that he was called to a second meeting with Mr Taylor, in which Mr Taylor told him that he was about to take leave, and he was unable to complete the investigation before going on leave, so that the investigation would take a little longer. The appellant considered it odd that the investigation had not been completed by that time. He said that he raised this with Mr Taylor who responded that he had a lot of staff to manage, it was the appellant’s responsibility to activate the body camera that he was required to wear, and that the appellant had spoken to the complainant in a disrespectful way, as he did with others.
The appellant stated that he reached the conclusion that the enquiry was being deliberately drawn out in order to make him anxious. He said that when he left Mr Taylor’s office, he felt anxious, bewildered and perplexed.
The appellant reported that he was called to a further meeting with Mr Taylor on 26 April 2023. He said that Mr Taylor handed him an envelope, indicating that it was in relation to the investigation. He said that he immediately felt that the enclosed letter would not be good news and may contain a letter of warning. He said he read the letter, which was from the respondent’s People and Culture unit, and which stated in bold type that he was required to attend a “Request to Show Cause Meeting” (the show cause meeting). He said that the letter indicated that his conduct on 18 December 2022 was unacceptable, in breach of the respondent’s code of conduct, as well as its work health and safety policy, and the Ranger manual in relation to the use of video and sound equipment. He said that the letter indicated that the respondent was giving him the opportunity to show cause as to why disciplinary action should not take place, which may include the termination of his employment.
The appellant stated that he was shocked by the letter and noted that the show cause meeting was to be held the following day (a Thursday) at 10.30 am which would not give him enough time to arrange a support person. He advised that at that time, he began to feel disorientated and highly anxious. He said that he raised the issue of not being able to arrange a support person and Mr Taylor responded by saying that the union representative was on site on Thursdays.
The appellant stated that he was able to contact the union representative (Mr Gao) by telephone and Mr Gao advised him that arranging the meeting that quickly was unacceptable and the requirement for such a meeting was to give seven days’ notice. He said that Mr Gao also indicated that he would liaise with the respondent on his behalf.
The appellant stated that on 27 April 2023, he travelled to work by bus but after he arrived, he felt disorientated, stressed and anxious, so he telephoned Mr Taylor and advised him he was too unwell to attend work. He said that he attended an appointment with his general practitioner, Dr Jack Blomeley at 11.45 am that day.
The appellant provided a further statement dated 3 August 2023,[9] in which he addressed an issue that had arisen in his claim as to whether his psychological decompensation resulted from other, non work-related causes. He provided extensive details of work causes and stated that:
“The pinnacle of my breakdown happened when I was about to enter work on the 27th of April. I felt like I could not function, my mind completely shut down and I found that I was just walking around and not able to think. This occurred as I was not given enough time … to respond to the letter from Mark Taylor, my manager. I felt like I had dealt with so much at work and this tipped me over the edge. HR has acknowledged that the timing of the letter was not procedurally acceptable and had advised my manager not to give the letter to me. Mark Taylor ignored them as he knew that the timing of this letter would be inappropriate and cause me to react. I recall that the development of these symptoms were more in line with experiences that I faced at work.”[10]
[9] ARD, pp 23–25.
[10] ARD, p 24, [9].
Mr Richard Goulston, team leader
Mr Goulston provided a statement dated 6 June 2023.[11] He advised that on 22 December 2022, he received a customer complaint in relation to the appellant’s conduct. He explained that it was his role to conduct an initial investigation in order to determine the intent of the complaining party and whether the complaint was bona fide. He described the complaint as unusual, in that in this instance the appellant had not issued any infringement to the customer. He said that the substance of the complaint was that the appellant had spoken to the complainant and her partner inappropriately, was not wearing his name badge or any other ranger identification.
[11] Reply to Application to Resolve a Dispute (reply), pp 190–203.
Mr Goulston stated that he notified the appellant of the complaint by email on 23 December 2022. He said that he had brief discussions with the complainant and then with the appellant in order to seek his response to the complaint. He said that the appellant’s view was that he had acted appropriately, but Mr Goulston determined that there was probably a case for the appellant to answer. He observed that the progress of the investigation may have been impacted by the Christmas and New Year break and estimated that it was probably in January 2023 that he referred the complaint to Mr Mark Taylor, the “Safe City Manager” to handle the matter thereafter.
Mr Goulston referred to the appellant’s father having passed away in mid-November 2022 and indicated that he offered support to the appellant during this period, including offering the appellant assistance through the employee assistance program and approving two to three weeks of leave. He said that he also checked on the appellant’s welfare after the appellant returned from that leave.
Mr Goulston stated that issues were raised by the appellant about his shift rosters in January 2023, which had to be re-arranged because of the sudden retirement of one of the rangers over the holiday period. Mr Goulston also spoke about issues arising from the deterioration in the appellant’s performance over the previous two or three years and the need to implement a performance management plan in about March 2023. Mr Goulston also spoke about other ongoing issues in relation to the appellant’s conduct from about 2018.
Ms Kate Drysdale, senior ranger
Ms Drysdale made a statement dated 8 June 2023.[12] She stated that in or about the week commencing 16 January 2023 (when she had returned from three weeks’ leave) she was advised by Mr Goulston of a complaint made against the appellant. She said that Mr Goulston performed a handover to her because he was about to take leave, and she was to continue to handle the matter in his absence. She said that he told her that he was seeking a response to the complaint from the appellant.
[12] Reply, pp 135–149.
Ms Drysdale stated that she met with the appellant on 23 January 2023 and discussed the complaint with him. She said that the appellant indicated that he was aggrieved by the complaint and intended to lodge a complaint about the customer. She added that it had transpired that during the incident, the appellant was not clearly displaying his badge and had not activated his body camera, but when she tried to discuss those matters with the appellant he did not accept that there was an issue and instead went off on a tangent, which made it difficult for her to collect the relevant information and discuss the matter with him.
Ms Drysdale indicated that she took the opportunity in that meeting to discuss the appellant’s already existing psychological condition, for which he had been prescribed medication. She said she also discussed with the appellant other performance issues that needed to be addressed and were the subject of discussion in a meeting with her on 9 November 2022. She said that those performance issues resulted in the implementation of a performance improvement program which was formally issued on 20 March 2023. Ms Drysdale advised that when Mr Goulston returned from leave, she handed the investigation of the complaint back to him. She provided a detailed account of the training the rangers had received in respect of operating the body cameras and observed that there were several occasions when the appellant had left his body camera on his desk when he went on patrol.
Ms Drysdale observed that, in her view, the respondent had provided the appellant with significant ongoing support in matters relating to his leave entitlements, his rostered shifts and his performance issues.
Mr Mark Taylor, safe city unit manager
Mr Taylor provided a statement dated 7 June 2023.[13] Mr Taylor recalled that on 23 December 2022 (which was the afternoon of the day before the Christmas break, he had a conversation with Mr Richard Goulston who advised him that there had been a customer complaint against the appellant in respect of an incident on 18 December 2022. Mr Taylor said that at the time of his conversation with Mr Goulston, the appellant was on leave. He said that Mr Goulston indicated that when the appellant returned from leave, he would obtain the appellant’s account of what had occurred. He added that, in accordance with the respondent’s complaints process, Mr Goulston was required to conduct initial enquiries in order to ascertain whether the complaint was bona fide.
[13] Reply, pp 43–63.
Mr Taylor also recalled that Ms Kate Drysdale (who was the appellant’s direct report and was acting team leader while Mr Goulston was on leave), was also involved in those preliminary enquiries, and that both Mr Goulston and Ms Drysdale spoke with the appellant about the incident after the appellant returned from leave.
Mr Taylor advised that on 14 February 2023, Mr Goulston advised him that he had concluded his preliminary enquiries and provided him with a memorandum of those details. He said that Mr Goulston recommended that Mr Taylor conduct a formal investigation.
Mr Taylor said that after reading the memorandum, he prepared a letter dated 16 February 2023 in which he outlined the complaint, the concerns that arose from the complaint, and the proposed investigation procedures that would follow. He said that a copy of the email complaint was annexed to the letter and the appellant was advised of the availability of the respondent’s employee assistance program (EAP), which was the normal procedure. Mr Taylor said that he telephoned the appellant on that day at 3.50 pm to inform him that it was necessary to conduct a formal investigation into the complaint and he then sent the letter to the appellant by email at about 4.04 pm. Mr Taylor stated that a short time after 5 pm, the appellant came to his office and he gave the appellant a hard copy of the letter and a contact card for LifeWorks, the respondent’s EAP provider. He said that he and the appellant agreed to meet on 21 February 2023 and that he advised the appellant that he had the option of bringing a support person to the meeting and encouraged him to do so.
Mr Taylor indicated that the appellant contacted him on 17 February 2023 and told him that he had been unable to arrange a support person for the meeting, so the meeting was re-scheduled for 8.30 am on Thursday 2 March 2023.
Mr Taylor said that he attended the meeting with the appellant on 2 March 2023 and Mr Gao and Ms Lexxie Fox also attended. He said that, at the outset, he advised the appellant of the opportunity to seek assistance from EAP. Mr Taylor said that the nature of the complaint and the procedural requirements associated with the investigation were explained to the appellant, and he asked the appellant a series of questions in order to hear his account of the matters raised. He said that at the conclusion of the meeting, he confirmed that, as was the normal process, further enquiries would be made, which the appellant acknowledged. He added that, after meeting, the appellant provided him with a copy of the memorandum of what had occurred that he had prepared.
Mr Taylor reported that he met again with the appellant on 3 March 2023 and advised the appellant that he was about to go on leave and so would be unable to complete the investigation until he returned. He said that the process had partly been delayed because the appellant had re-scheduled the meeting from 21 February 2023 to 2 March 2023.
Mr Taylor said that he returned from leave on 3 April 2023 and completed his investigation into the complaint. He said that on 5 April 2023, he forwarded the details of his findings to Ms Linda Perrine, the Director, Community Culture and Leisure and a copy was also provided to Ms Monica Lonergan, Manager, People and Culture Unit. He said that after he discussed the findings with them, it was agreed that the People and Culture Business Partner, Ms Divya Narayan was to draft a show cause letter based upon the findings and it would be issued to the appellant.
Mr Taylor advised that he met with the appellant on 26 April 2023 and handed him the show cause letter, which the appellant read in his presence. Mr Taylor indicated that after reading the letter, the appellant became fixated on recounting his version of events. Mr Taylor asserted that he confirmed with the appellant that at the show cause meeting on 27 April 2023 he would have the opportunity to formally respond to the matters raised, he was entitled to have a support person at the meeting and no decision would be made until after the appellant had provided his responses and they were considered. He said that the appellant nominated him as his support person, but Mr Taylor pointed out that that was not possible. Mr Taylor conceded that he did indicate to the appellant that the findings suggested that he did not follow protocol in relation to wearing his name badge and in the operation of his body worn camera.
Mr Taylor referred to the show cause meeting being scheduled for 10.30 am on the day following the receipt of the show cause letter and recalled that the appellant looked surprised about that and advised that he would speak with Mr Gao about the meeting by telephone. Mr Taylor said that he confirmed with the appellant that Mr Gao would normally be on site on the day of the meeting (a Thursday) and advised the appellant that if the date of the meeting did not fit for the appellant, then it could be re-scheduled to the following week. Mr Taylor gave reasons as to the benefit of having the meeting on the scheduled day but said that he was certainly open and receptive to moving the date if it did not suit the appellant or the union representative. He said that the appellant acknowledged what had been said and appeared to understand it. He added that the appellant appeared surprised that he was issued with a show cause letter but did not appear stressed or anxious.
Mr Taylor provided a detailed account of the telephone conversation he had with the appellant on 27 April 2023, when the appellant had telephoned and advised that he was unwell and would not be able to attend work. He said:
“I asked [the appellant] why he was unwell and unfit for work. In response, he explained that he was suffering from stress, anxiety and depression. He said that he would meet with his doctor that day. He also made a comment to me to the effect of, ‘You know I have an underlying condition I deal with every day.’ I said to him, something to the effect of, ‘Yes. Since you’ve made us aware, you’ve been very well supported by Council.’ I also reminded him at this point of the availability of the EAP. [The appellant] said in response that he was seeing people more locally including his doctor and a psychologist. He then said that he would now return home.
In concluding the conversation with [the appellant], I said to him something to the effect of, ‘It sounds like you’re getting the support you need. I hope you get well and feel much better soon.’ I also advised him that I would speak to Richard and Kate about him not being able to attend work that day. [The appellant] then said that he would be in touch after his doctor’s appointment. I thanked him and wished him well, and the conversation then ended.”[14]
[14] Mr Taylor’s statement dated 7 June 2023, reply, p 58, [62]–[63].
Mr Taylor refuted the many adverse accusations made by the appellant in respect of negative comments and in respect of any intention to delay the investigation. It is not necessary to consider those matters as there is no challenge to the Senior Member’s findings about that evidence.
Ms Lexxie Fox
Ms Fox was the respondent’s lead People and Culture business partner. She provided a statement dated 8 June 2023.[15]
[15] Reply, pp 97–105.
Ms Fox stated that she received an email from Mr Taylor on 14 February 2023 in relation to a customer complaint about the appellant’s conduct in the incident on 18 December 2022. She said that Mr Taylor advised that he intended to conduct a formal interview with the appellant about the incident and was seeking advice from the People and Culture unit about the matter and about the contents of a letter to the appellant that he had drafted. Ms Fox indicated that in certain cases such as this case, it was appropriate to involve the People and Culture unit. Ms Fox said that she spoke with Mr Taylor and provided him with advice as to how to conduct the meeting so that the appellant was provided with procedural fairness by having the opportunity to respond to the complaint. She added that she advised Mr Taylor that he needed to give appropriate notification of the meeting and to recommend that the appellant be accompanied by a support person.
Ms Fox stated that she and Mr Taylor attended the meeting on 2 March 2023, which had been re-scheduled to that date because the appellant was unable to have his support person, Mr Gao, attend. She advised that Mr Taylor outlined the substance of the complaint and asked a series of questions in order to clarify what occurred in the incident and allow the appellant to respond. She said the appellant largely relied upon his statement and another document he had prepared. Ms Fox observed that in her view, the questions were relevant and procedurally fair. She said that she also asked a few questions in order to better understand what had happened. She was also of the view that the meeting was conducted calmly and in a professional and appropriate manner. She said that at the conclusion of the meeting, Mr Taylor advised the appellant that he would look further into the matters discussed and then meet with the appellant again.
Ms Fox indicated that Mr Taylor then took pre-arranged leave for one month but before he took the leave, on 3 March 2023 he advised her that he had communicated with the appellant, explaining to the appellant that the investigation was still proceeding but was not able to be completed until he returned from leave. Ms Fox explained that in her view it was appropriate to keep the appellant informed and avoid any uncertainty in the mind of the appellant.
Ms Fox stated that on 5 April 2023, Mr Taylor copied her into an email to Ms Monica Lonergan, the People and Culture manager, in which he informed Ms Lonergan that he had finalised the investigation and provided Ms Lonergan with a copy of his findings and recommendations. She said that the findings and recommendations were signed off by Ms Lonergan and the Director of Community Culture and Leisure on 19 April 2023.
Ms Fox observed that:
“In reviewing [Mr Taylor’s] investigation findings, it appeared to me that his investigation had been conducted in a very thorough and fair matter. While it was recommended in the document that a Show Cause process proceed, I also noted that [Mr Taylor] had taken into account feedback received from [the appellant], for example, in relation to aspects of the uniform for Rangers which he felt could be improved, as well as further training being recommended for [the appellant] regarding the activation and use of his body worn camera. I took no issue with the findings or recommendations provided by [Mr Taylor] in this document.”[16]
[16] Ms Fox’s statement, ARD, p 101, [17].
Ms Fox stated that in the period leading up to 26 April 2023, she assisted Mr Taylor with the drafting of the show cause letter. She confirmed that the actions in relation to the investigation process conformed with the respondent’s policies. She said that on 26 April, she was copied into an email attaching the show cause letter. She said that she did not see the email until the following day but when she read it, she realised he had given the appellant less than 24 hours’ notice of the meeting. She indicated that she advised Mr Taylor that that was not acceptable but, in the circumstances, she considered it appropriate to await the appellant’s response to the proposed meeting. She advised that she and Mr Taylor were open to re-scheduling the meeting if that was required by either the appellant or the union representative, which they had done in the past with both the appellant and other employees. Ms Fox observed that it was obviously in the appellant’s interests and those of the other parties to finalise the matter expeditiously, particularly given the delay that occurred because Mr Taylor had been leave.
Ms Fox provided further details about other performance issues involving the appellant, which are not relevant in respect of this appeal.
The legislation
Section 11A(1) of the 1987 Act relevantly provides as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) 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 Senior Member’s reasons
The Senior Member summarised the evidence and the submissions made by the parties. She concluded that she was satisfied that the appellant had suffered a psychological injury in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease and that his employment was the main contributing factor to the aggravation in accordance with s 4(b)(ii) of the 1987 Act.
The Senior Member reproduced s 11A of the 1987 Act and observed that the respondent bore the onus of establishing the defence under that section. She observed that the respondent relied upon its actions with respect to discipline, performance appraisal and/or the provision of employment benefits, although there were no submissions made in relation to the provision of employment benefits. The Senior Member took the view that the significant events that may come within the provisions of s 11A were the performance appraisal carried out by Ms Drysdale and the disciplinary process in relation to the complaint made against the appellant in relation to the incident on 18 December 2022.
The Senior Member turned to a consideration of whether the appellant’s injury was wholly or predominantly caused by the actions taken by or on behalf of the respondent. She noted that ‘causation’ was a question of fact to be determined by applying common sense to the facts of a particular case.[17] The Senior Member expressed the view that the evidence established that the appellant’s injury was wholly or predominantly caused by the respondent’s reasonable action in the form of discipline in relation to the investigation and action taken in respect of the complaint about the appellant’s conduct on 18 December 2022. She noted that the appellant himself had submitted that the disciplinary action was the main contributing factor to the aggravation of his pre-existing psychological condition. She accepted that submission.
[17] Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, [106], per Kirk JA (Meagher JA and Simpson AJA agreeing).
Quoting Northern NSW Local Health Network v Heggie,[18] the Senior Member observed that action with respect to discipline was capable of extending to the whole disciplinary process, including the course of an investigation.
[18] [2013] HCA 255 (Heggie).
The Senior Member referred to the medical evidence, as well as the appellant’s own evidence, that supported that the disciplinary process caused the aggravation of the appellant’s pre-existing psychological condition.
The Senior Member moved on to determine the question of whether the respondent’s actions were reasonable. She quoted from the observations of Geraghty CCJ in the unreported but often applied decision in Irwin v Director General of School Education[19] as follows:
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
[19] Unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997 (Irwin).
The Senior Member also quoted from Sackville AJA’s summary of the principles in Heggie as follows:
“The following propositions are consistent both with the statutory language and the authorities that have construed s11A(1) of the [1987] Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) 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.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If [a Member] does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”[20] (Emphasis in original)
[20] Heggie, [59].
The Senior Member referred to her detailed account of the process adopted by the respondent in investigating the complaint against the appellant, the respondent’s determination of the issue and the manner in which the appellant was advised of the result. She observed that, in her view, the respondent had an obligation to investigate the complaint, particularly when the complainant had conveyed to the respondent what effect the incident had upon her. The Senior Member noted that the appellant was advised of the complaint and given the opportunity to respond, with a support person present, and the meeting was re-scheduled so that the appellant could have the benefit of a support person. The Senior Member referred to the fact that Ms Fox was present in the meeting and gave evidence as to what occurred.
The Senior Member further referred to the fact that the resolution of the investigation was delayed because Mr Taylor had four weeks’ leave and that the appellant was advised about that by Mr Taylor. The Senior Member accepted Mr Taylor’s evidence about that meeting, including the evidence from Mr Taylor that the appellant nominated him to be his support person. The Senior Member formed the view that if the appellant initially nominated Mr Taylor as his support person, then it was unlikely that the appellant held the view that Mr Taylor was being unsupportive.
The Senior Member said that the “investigation was completed expeditiously after Mr Taylor’s return from leave.”[21] The Senior Member reasoned that:
“Mr Taylor found there was insufficient evidence to make a finding about some of the allegations against the [appellant], which does not suggest that the investigation was ‘weaponised.’ He concluded that the [appellant] had not clearly identified himself or activated his camera. He accepted the [appellant’s] suggestions about ways in which rangers could better identify themselves to members of the public; and recommended the [appellant] be provided with further training in the operation of the camera.”[22]
[21] Fell v Willoughby City Council [2024] NSWPIC 224 (reasons), [595].
[22] Reasons, [596].
The Senior Member referred to the evidence of Ms Fox and Ms Lonergan and observed that neither Ms Fox nor Ms Lonergan expressed any concern about the conduct of the investigation, although Ms Fox did indicate that it was not procedurally acceptable to give less than 24 hours’ notice of the meeting on 27 April 2023 but suggested that they await the appellant’s response. She further referred to the evidence of Ms Fox that:
(a) the respondent would have re-scheduled the meeting if requested;
(b) Mr Taylor had previously re-scheduled the initial meeting at the appellant’s request, and
(c) there had already been a delay in the investigation because of Mr Taylor having leave.
The Senior Member noted that Mr Taylor was aware that the union representative was usually on site on Thursdays and the appellant was able to obtain advice from the union representative in relation to the meeting being scheduled.
The Senior Member reproduced the following extract from Spigelman CJ’s judgment in Department of Education and Training v Sinclair:[23]
“Furthermore, the case before Sheahan J primarily focused on the whole course of Departmental conduct as constituting the relevant ‘substantial contributing factor’ for purposes of s 9A. His Honour appeared to approach the s 11A issue on the same basis. This is an appropriate course to adopt in a context concerned, and concerned only, with psychological injury arising from matters such as ‘demotion, promotion, performance appraisal, discipline, retrenchment or dismissal.’ Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context, the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.
His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’. For this alternative reason the appeal should be allowed.”[24]
[23] [2005] NSWCA 465 (Sinclair).
[24] Sinclair, [96]–[97].
The Senior Member concluded that the appellant’s injury was wholly or predominantly caused by the respondent’s actions with respect to discipline and that, despite the “blemish” in respect of scheduling the meeting to occur on 27 April 2023 with less than 24 hours’ notice, the respondent’s action was in her view reasonable. She further concluded that the respondent therefore had a complete defence to the appellant’s claim pursuant to s 11A of the 1987 Act and entered an award in favour of the respondent.
The Certificate of Determination dated 1 May 2024 records:
“The Commission determines:
1. There is an award for the respondent.”
The appellant’s submissions
The appellant submits that the Senior Member noted that Ms Fox advised Mr Taylor that it was not procedurally acceptable to give the appellant less than 24 hours’ notice of the show cause meeting, yet the Senior Member considered it reasonable because the meeting could be moved. The appellant says, however, that the show cause letter did not mention that to be the case, and the appellant was not afforded the opportunity to re-schedule the meeting or to arrange a support person to attend the meeting with him.
The appellant asserts that the union representative was not available. He submits that he believed that he was seriously in trouble, he decompensated and he sought treatment from his general practitioner, Dr Blomeley that day.
The appellant submits that despite the evidence that the short notice was procedurally unacceptable, the Senior Member was “swayed” to conclude that somehow the late notice was reasonable.
The appellant submits that had the Senior Member given proper consideration to the show cause letter, together with Ms Fox’s admission in respect of the lack of sufficient notice, the Senior Member could not have found that the respondent’s actions were reasonable.
The respondent’s submissions
The respondent refers to the sole ground of appeal brought by the appellant, which is that there was an error of law in the Senior Member’s finding that the respondent acted reasonably when he was given less than 24 hours’ notice to attend a “show cause” meeting. The respondent points out that this was the same argument raised before the Senior Member in the proceedings below.
The respondent refers to the appellant’s submission that he raised an objection in respect of the meeting because the union representative would not be available on such short notice. The respondent submits that the Senior Member observed that the evidence was that the union representative attended the premises on Thursdays. The respondent indicates that the Senior Member rejected the appellant’s assertion that the union representative was not available because the appellant was able to obtain advice from the union representative in relation to the meeting.
The respondent asserts that the appellant has failed to identify why those findings of fact were not available to the Senior Member, or that those findings were contrary to other evidence which the Senior Member failed to take into account. The respondent complains that the appellant is thus seeking in this appeal to re-run the case that was rejected by the Senior Member.
The respondent contends that the Senior Member did not commit an error of fact or law in determining that the late notice of the show cause meeting was no more than a “blemish” in the context of the detailed process of investigation in which meetings were arranged and the fact that when the appellant sought a postponement it was granted.
The respondent submits that the Senior Member’s reference to a “blemish” is derived from the Court of Appeal authority of Sinclair, in which Spigelman CJ (Hodgson and Bryson JJA agreeing) observed that if the whole or predominant cause was the entirety of the disciplinary process, a course of conduct may still be “reasonable action”, even if particular steps (described as “blemishes”) are not.[25]
[25] Sinclair, [97].
The respondent asserts that the late notice of the show cause meeting was capable of being rectified, as had occurred in past meetings. The respondent points to the evidence that the appellant was advised that the union representative would usually be at the premises on Thursdays and was advised that the meeting could be postponed until the following week. The respondent submits that Mr Taylor indicated that it would be best to address the issues as scheduled but he was open to a request from the appellant or the union representative to postpone the meeting and the appellant appeared to acknowledge that.
The respondent submits that the Senior Member took into account the evidence of Ms Fox and Mr Taylor in relation to the short notice of the meeting and submits that the Senior Member’s findings of fact about that evidence were open to her and no error is disclosed.
The respondent asserts that the appellant has failed to make any submissions as to why the Senior Member should not have applied Sinclair and has failed to identify any error of law.
The respondent refers to the appellant’s submissions as to the general practitioner’s notes and submits that that evidence has no relevance because the appeal does not raise any issue in respect of the Senior Member’s finding that the whole and predominant cause of the injury was reasonable action taken by the respondent in respect of discipline. The respondent adds that in the proceedings before the Senior Member, the appellant submitted that the disciplinary action was the main contributing factor to the aggravation of his pre-existing psychological condition. The respondent asserts that the appellant is seeking to raise an argument that was not agitated before the Senior Member.
The respondent contends that the Senior Member provided a detailed account of the supporting evidence that led her to the ultimate conclusion in relation to the show cause meeting that the show cause letter was part of a long chain of events that constituted discipline. The respondent submits that the appellant has failed to identify how the Senior Member failed to have proper regard to the significance of the show cause letter or the serious impact it had on the appellant.
The respondent submits that the appellant appears to be agitating a case that, contrary to Sinclair, s 11A of the 1987 Act requires that the respondent’s actions were required to be perfect. The respondent refers to VanVliet v Landscape Enterprises Pty Ltd,[26] in which Phillps P observed that:
“The concept of reasonableness in s 11A(1) does not, with respect, require a counsel of perfection. It requires, consistent with the authorities (Heggie, Irwin), that all of the circumstances of the case are considered and that the action then be considered in an objective sense to be reasonable or not.”[27]
[26] [2022] NSWPICPD 49 (VanVliet).
[27] VanVliet, [179].
In conclusion, the respondent submits that the appellant “cannot urge upon the Personal Injury Commission at the Presidential level that there has been error simply because one cog in the wheel may have been slightly blemished or imperfect.”[28]
[28] Respondent’s submissions, [25].
THE RELIEF SOUGHT
The appellant seeks to have the time extended for him to lodge the appeal and the Senior Member’s Certificate of Determination to be revoked and an award entered in his favour in respect of the claim for weekly payments and for his treatment expenses.
The respondent submits that the appeal has no merit, so that the time to appeal should not be extended. The respondent asks in the alternative for the appeal to be dismissed, and the Senior Member’s Certificate of Determination confirmed.
CONSIDERATION
It is common ground that the respondent was required as a matter of procedure to give the appellant a longer period of notice of the show cause meeting. The appellant’s own evidence was that, at the meeting on 26 April 2023, he raised the issue of not being able to arrange a support person and Mr Taylor responded by saying that the union representative was on site on Thursdays. The appellant also stated that he was able to contact the union representative by telephone, Mr Gao advised him that arranging the meeting that quickly was unacceptable, and Mr Gao also indicated that he would liaise with the respondent on his behalf.
The appellant submits that the show cause letter did not accommodate the opportunity for the appellant to have the meeting moved. Mr Taylor’s unchallenged evidence, however, was that he advised the appellant that if the date of the meeting did not fit for him, then it could be re-scheduled to the following week. Mr Taylor also stated that there were reasons as to the benefit of having the meeting on the scheduled day but said that he was certainly open and receptive to moving the date if it did not suit the appellant or the union representative. He said that the appellant appeared to acknowledge what had been said.
Regardless of the fact that the letter did not provide advice that the meeting date could be changed, that opportunity was in fact mentioned by Mr Taylor in the meeting on 26 April 2023. The appellant’s assertion that he was not afforded the opportunity to re-schedule the meeting is not founded in the evidence. The appellant’s further assertion that he was unable to arrange a support person is also not founded in the evidence. The appellant’s evidence was that he was able to speak with the union representative on 26 April 2023. The appellant does not indicate whether he requested the union representative’s support, or that the representative was unable to attend. Additionally, Mr Taylor’s evidence was that the union representative was on site on Thursdays, which would tend to indicate that the representative may have been available, if he was in fact requested to attend.
The appellant submits that the Senior Member failed to pay proper regard to the significance of the show cause letter. The sole ground of appeal is that the Senior Member’s finding that the respondent acted reasonably when he was given less than 24 hours’ notice was erroneous. The fact that a “show cause” letter was issued was not challenged in terms of whether it constituted reasonable action taken by the respondent. The significance of the effect of that action on the appellant’s psyche, the appellant’s perception of events and the fact that the appellant decompensated and consulted his general practitioner are all facts going to questions of causation and do not fall within the ambit of the pleaded ground of appeal. That is, providing less than 24 hours’ notice of a show cause meeting was unreasonable and thus rendered the whole disciplinary action unreasonable.
The appellant submits that despite the evidence that the short notice was procedurally unacceptable, the Senior Member was “swayed” to conclude that somehow the late notice was reasonable. The Senior Member did not conclude that the short notice was reasonable. She considered it was a “blemish” in the disciplinary procedure, which was otherwise reasonable. The approach taken by the Senior Member was consistent with Spigelman CJ’s observations in Sinclair and those of Phillips P in VanVliet. The appellant has failed to show that the Senior Member committed an error of law in the application of s 11A or any error of fact in reaching her conclusion that the respondent’s actions were reasonable.
The appeal has no prospects of success. I am therefore not satisfied that the appellant can show that a demonstrable or substantial injustice would occur if leave to extend the time to appeal was not granted.
I conclude therefore that the application for an extension of the time to appeal pursuant to s 352(4)(b) of the 1998 Act is refused.
DECISION
The application for an extension of the time to appeal pursuant to s 352(4)(b) of the Workplace Injury Management and Workers Compensation Act 1998 is refused.
Elizabeth Wood
DEPUTY PRESIDENT
19 March 2025
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