Fire and Rescue New South Wales (formerly NSW Fire Brigades) v Guymer
[2011] NSWWCCPD 38
•29 July 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Fire and Rescue New South Wales (formerly NSW Fire Brigades) v Guymer [2011] NSWWCCPD 38 | ||||
| APPELLANT: | Fire and Rescue New South Wales (formerly NSW Fire Brigades) | ||||
| RESPONDENT: | Michael Guymer | ||||
| INSURER: | Employers Mutual Ltd – TMF | ||||
| FILE NUMBER: | A1-8710/10 | ||||
| ARBITRATOR: | Mr Grahame Edwards | ||||
| DATE OF ARBITRATOR’S DECISION: | 14 March 2011 | ||||
| DATE OF APPEAL DECISION: | 29 July 2011 | ||||
| SUBJECT MATTER OF DECISION: | Injury arising out of employment; s 4(a) of the Workers Compensation Act 1987; causal connection between injury and employment; whether injury wholly or predominantly caused by reasonable action taken with respect to demotion or discipline; s 11A of the Workers Compensation Act 1987 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Hicksons | |||
| Respondent: | Steve Masselos & Co | ||||
ORDERS MADE ON APPEAL: | The Arbitrator’s determination made in a Certificate of Determination dated 14 March 2011 is confirmed. The appellant is to pay Mr Guymer’s costs of the appeal | ||||
INTRODUCTION
This appeal challenges findings made by Arbitrator Grahame Edwards which led to the entry of an award for compensation benefits in favour of Mr Michael Guymer. It was accepted by the Arbitrator that Mr Guymer had received a psychological injury arising out of his employment with Fire and Rescue New South Wales, formerly the New South Wales Fire Brigades (the appellant).
Mr Guymer alleged that his injury was caused by publication, in July 2009, of information and comment concerning matters relating to his work for the appellant. The allegation of injury, as appears in the Application to Resolve a Dispute filed on his behalf, was inelegantly particularised as follows:
“Nature and conditions of employment including exposure to a sexual assault complaint subsequent actions of employer involving interviews conducted on radio and inaction of employer in failing to clarify the worker’s ‘involvement’ in sexual assault allegations leading to misinformed shock-jock broadcasts which left public and workplace impressions that the worker was involved in the sexual assault and misconstrued credit card fraud allegations between 19.2.2007 and August 2009.”
The manner in which the claim was presented to the Commission, and as it was described in an injury notification form, made clear that Mr Guymer’s allegation was that injury was caused when, in July 2009, Sydney radio broadcasts by a Mr Ray Hadley identified him “as having committed credit card fraud” and as being “implicated in an alleged assault matter”.
The facts whilst moderately complex are, to a great extent, not in dispute. It is proposed to summarise the factual background to enable an understanding of Mr Guymer’s allegations which were found proven by the Arbitrator. Attention will then be given to those arguments raised which suggest error by the Arbitrator.
FACTUAL BACKGROUND
Mr Guymer commenced service with the appellant in 1978. The evidence before the Commission establishes that Mr Guymer, until certain events which commenced in 2007, had served as an officer in an exemplary manner. He had performed a very broad range of duties, had been decorated in acknowledgment of the performance of his duties, and had attained the rank of superintendent, holding the position of Zone Commander.
In July 2008, an anonymous correspondent wrote to the Independent Commission Against Corruption (ICAC) concerning allegations of “corrupt practices within the NSW Fire Brigades”. That correspondence, which is in evidence, may be described as a wide-ranging and vehement attack upon the character of Mr Guymer. The correspondence strongly suggested that Mr Guymer had defrauded the appellant concerning claimed expenses whilst he was carrying out relief duties in country New South Wales. Other evidence establishes that Mr Guymer was engaged in relieving duties at Region North 1 in Port Macquarie during several periods between October 2007 and May 2008.
It seems that the anonymous correspondence received by the ICAC was treated by that Commission as a protected disclosure in terms of the Protected Disclosures Act 1994. The matter was, in July 2008, referred by the ICAC to the Commissioner of the appellant for appropriate action. An independent investigation, to be conducted by retired Magistrate Mr John Heagney, was established.
Mr Heagney provided his report in January 2009. That thorough and voluminous report, which is in evidence, included copies of correspondence dated 8 December 2008 from Mr Heagney to Mr Guymer which set out particulars of matters “where there appears … to be some evidence of misconduct by [Mr Guymer]”. Those matters related to alleged unauthorised absence from the work location on a number of occasions and alleged false claims in respect of expenses made against the appellant. Mention was also made of suggested misuse of a government credit card. That particular matter was disputed by Mr Guymer and was ultimately withdrawn. The allegation has assumed some significance in the matter as argued before the Arbitrator and is addressed more fully below.
Mr Heagney’s report included his expressed view that there was prima facie evidence of misconduct by Mr Guymer. The relevant facts appear in the executive summary of the report (pages 3–7). The conduct concerned claims for expenses and suggested false entries in vehicle running sheets.
Following recommendations made by Mr Heagney in his report, the Commissioner commenced disciplinary proceedings against Mr Guymer and referred certain matters raised by Mr Heagney to the police authorities. No allegations concerning absences or credit card fraud were pursued.
Charges of misconduct against Mr Guymer were admitted by him and a finding was made that there had been a breach of a provision of the relevant Regulation. In April 2009, Mr Guymer was demoted by two ranks to that of Inspector. He was informed that he would not be eligible to apply for any advertised merit-based promotion for a minimum of two years from the date of that determination or the date of any subsequent appeal.
Some weeks before the demotion of Mr Guymer, a Sydney radio broadcaster (Mr Ray Hadley) had, it seems, received a telephone call from an “informant” concerning “alleged corruption in the NSWFB”. The appellant’s Commissioner, Mr Greg Mullins, was interviewed by Mr Hadley concerning these allegations on 11 March 2008 and 17 April 2009. Mr Guymer was not identified during those interviews.
Criminal proceedings were commenced against Mr Guymer which came before Magistrate Maloney on 7 July 2009. A transcript in evidence records the charge as “make false statement to obtain money”. A plea of guilty was entered by Mr Guymer. Following submissions put by counsel, which noted that Mr Guymer had promptly refunded the relevant sum of money ($4872.12), his Honour made an order directing that the charge be dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999.
On 14 July 2009, Mr Guymer commenced a period of holiday leave. On 21 July 2009, he received a telephone call from a colleague who informed him that Mr Hadley, the broadcaster referred to at [12] above, was discussing on radio the sexual assault of a firefighter. The circumstances on that day are addressed in Mr Guymer’s undated statement attached to the Application to Resolve a Dispute, where it was said (at [5] and [6]):
“5.On the 14th July 2009 I proceeded on 4 weeks annual leave. I had a significant amount of leave accrued and decided to have a break. Mid morning on the 21st July 2009 I received a phone call from a work colleague, he stated that Ray Hadley was on 2GB talking about the sexual assault of a firefighter. I turned on the radio to hear Ray Hadley making a series of statement [sic] about this matter. This included accusations of a cover up and a conspiracy by officers to persecute the victim. From the detail I immediately suspected these allegations may involve me. In 2007 I interviewed a firefighter at Glebe Fire Station, he stated to me that he had been sexually assaulted at City of Sydney Fire Station in 1985. I was stunned by Mr Hadley’s statements.
6.Within the next few hours I [received] more phone calls from colleagues querying my reaction to Ray Hadley’s statements and my involvement in the matter. When my wife Pam returned home shortly after we discussed Ray Hadley’s statements and I explained my role in the matter to her, Pam re-assured me by stating that someone from the Brigades will set the record straight tomorrow. I had little sleep that night.”
Subsequent broadcasts are addressed below (at [33]). It was Mr Guymer’s allegation that, as a consequence of the radio broadcasts, he received a psychological injury causing incapacity. That injury, it was argued and accepted by the Arbitrator, arose out of Mr Guymer’s employment. A defence raised pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act) was rejected, thus the injury was found to have been received in compensable circumstances.
There is a very considerable volume of evidence before the Commission, the relevant content of which is addressed below.
The matter came before the Arbitrator on 17 February 2011 for conciliation/arbitration. The matter proceeded to hearing, following which the Arbitrator reserved his decision. A Certificate of Determination was issued on 14 March 2011.
THE DECISION UNDER REVIEW
The Certificate of Determination dated 14 March 2011 records the Arbitrator’s orders as follows:
“1. Respondent to pay the applicant weekly payment of compensation at the rate of $1,654.30 from 24 July 2009 for the first 26 weeks of total incapacity, as adjusted, pursuant to s 36 of the Workers Compensation Act 1987.
2. Respondent to pay the applicant weekly payment of compensation for total incapacity after the first 26 weeks of incapacity to date and continuing at the prescribed maximum rate for a worker without dependents [sic], as adjusted, pursuant to s 37 of the Workers Compensation Act 1987.
3. General order that the respondent pay the applicant’s reasonably necessary medical and related treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.
4. Matter remitted to the Registrar for referral to an Approved Medical Specialist to assess whole person impairment of psychological injury with date of injury being 24 July 2009. The following documents are to be sent to the Approved Medical Specialist:
(a)Application to Resolve a Dispute and attached documents;
(b)Applications to Admit Late Documents and attachment [sic] documents filed by the applicant on 2 December 2010, 9 December 2010, and 18 January 2011;
(c)Reply and attached documents;
(d)Applications to Admit Late Documents and attached documents filed by the respondent on 10 December 2010 and 20 January 2011, and
(e)Copy of Reasons for Determination dated 11 March 2011.
5. Respondent to pay the applicant’s costs as agreed or assessed. For the purposes of Schedule 6 Table 4 Item 4 of the Workers Compensation Regulation 2010 I certify this matter as complex with a 30 per cent increase in costs otherwise available to the parties.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
An appeal against the decision of the Arbitrator was filed with the Commission on 11 April 2011.
ISSUES IN DISPUTE
The issues in dispute raised on this appeal are whether the Arbitrator erred in:
(a) determining that Mr Guymer received injury within the meaning of s 4 of the 1987 Act, and
(b) finding that Mr Guymer’s injury was not wholly or predominantly caused by the reasonable actions of the appellant with respect to discipline and demotion in terms of s 11A(1) of the 1987 Act.
PRELIMINARY MATTERS
The proceedings before the Arbitrator were conducted in accordance with the Commission’s practice utilising a sound recording device. That device failed to record. The sound card, following investigation, was found to be blank. No explanation for its failure to record has been found. As a result of this failure, there is no transcript of the proceedings available.
The parties were informed by the Registrar of the absence of a transcript and submissions concerning that matter were invited. Mr Guymer’s solicitors, who had earlier submitted that the appeal may be decided solely “on the papers”, have not responded to that correspondence. The appellant’s solicitors have replied to the Registrar in the following terms:
“We confirm we filed an appeal of the decision of Arbitrator Edwards, on behalf of the respondent, on 13 April 2011 [sic]. We have since been informed that no transcript of the arbitration hearing conducted on 17 February 2011 is available from the Commission.
Although the respondent has in the appeal submission submitted that the appeal can proceed on the papers, should any further dispute about the submissions made by the parties at arbitration arise we reserve the respondent’s rights to submit that there has been a denial of procedural fairness in the failure to provide a transcript of those proceedings.”
No oral evidence was given before the Arbitrator. The absence of a transcript has the practical consequence that the Commission does not have the benefit of a record of submissions as put on behalf of each party at the hearing. As has been stated by the Court of Appeal, such absence “is a serious shortcoming” (see discussion in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 per Bryson JA (with whom Handley JA and Bell J agreed) at [32]).
The question arises as to what procedure should be adopted on this appeal. The Commission has the advantage in the present matter of a thorough and detailed summary of submissions put at the hearing before the Arbitrator in his Statement of Reasons (Reasons) which accompanied the Certificate of Determination (between [31] and [48]). There has been no suggestion made on this appeal that the Arbitrator’s summary is in any way deficient or incorrect. Each party has submitted that the appeal may be heard “on the papers” as is permitted, in appropriate circumstances, by the provisions of s 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Each party has also provided detailed and comprehensive submissions on the appeal.
In all the circumstances, I am satisfied that I have sufficient information to proceed “on the papers” without conducting any conference or formal hearing. I have reached this view notwithstanding the absence of a transcript.
THE EVIDENCE
The evidence tendered before the Arbitrator is recorded at [30] of Reasons. As earlier noted, there is little dispute between the parties concerning the factual matters summarised between [5] and [14] above. In the circumstances, it is proposed to note other factual matters relevant to the issues raised on appeal and to summarise the relevant medical opinions which have been expressed by various experts whose evidence is before the Commission.
There are a number of transcripts in evidence, tendered by the appellant, which record matters broadcast by Mr Hadley. Whilst Mr Guymer’s allegation of injury concerns those broadcasts in July 2009, there are transcripts concerning broadcasts occurring on 11 March 2009 and 17 April 2009 which are of relevance to matters raised in argument. The first of those transcripts reveals that Mr Hadley had informed his listeners that he had received a phone call “off air”, “tipping [him] off” concerning “alleged corruption in the NSWFB”. The informant had said that a “fairly high-ranked officer who has been decorated” for his work in the fire brigade was involved; that the ICAC had been called in to investigate “credit card rorts by this officer”, and that the appellant “has apparently kept it very, very quiet”. Mr Hadley also said that the office of the Emergency Services Minister, Mr Steve Whan, had “confirmed there was an anonymous complaint to the ICAC in July about possible fraudulent travel claims by a fire officer”. Those matters had been investigated and the appellant had referred those results “back to the ICAC and the NSW Police for their consideration”. It was also stated that the appellant had “started discipline [sic] against the officer who was a senior officer who was currently on leave”. Mr Hadley is then recorded conducting an interview with the Commissioner of the appellant, Mr Greg Mullins. During that interview, Mr Hadley suggested that the matters being investigated “involves the misuse of a credit card”. Mr Mullins did not expressly confirm that suggestion, and is recorded as stating that the use of credit cards by officers was “convenient” and that usage was regularly audited. He also stated that “it’s extremely rare for anything like this to come up” and that he was “not allowed to talk about the amounts involved”. He also stated “it’s not a huge amount of money but it’s just very, very disappointing”.
The transcript of the broadcast made on 17 April 2009 records a second interview by Mr Hadley of the Commissioner. Mr Mullins confirmed that the appellant had completed investigations and that recommendations had been made concerning the, as yet unnamed, officer. When challenged as to why the officer had not been named, Mr Mullins explained that there had been a “process” and that ultimately the officer would be publicly named. It was also stated by Mr Mullins:
“This person has been dealt with very harshly compared to the amount of money that has been paid back by him, it was immediately paid back. Some of the charges were dismissed. There was no credit card fraud. There was um, it appeared that way but further investigation found there wasn’t. But you will find it’s a very very harsh penalty.”
There are in evidence a further two transcripts of relevant broadcasts made 21 July 2009 and 30 July 2009. On 21 July 2009, Mr Hadley is recorded conducting an interview on air with the Minister for Emergency Services, Mr Steve Whan. It is recorded that Mr Whan requested the interview and attended the radio station studio for that purpose.
Before commencement of that interview, Mr Hadley summarised matters which were found by him in “a briefing document sent from an Assistant Commissioner to the Minister’s office”, which he had received anonymously in the post. It was stated that the purpose of the brief was:
“to brief the minister regarding the allegations that sexual assault and other misconduct including bastardization of junior firefighters claimed to take place around 1989 D platoon City of Sydney Fire Station and other matters arising. It says by way of background in early 2007 a current serving firefighter attended a performance meeting with his then Superintendent and inspector at which he made claims of being sexually assaulted, bullied, harassed at the same fire station in around 1989.
The matter was reported to the Area Commander it was alleged that pressure was brought to bear upon the firefighter not to formalise his complaint. The firefighter was subsequently transferred to another station in July of that year, proceeded on annual leave and subsequently was certified ‘unfit for work’, a workers’ compensation claim was made and was accepted by the NSW Fire Brigade workers’ compensation insurer.
In August 2007 the firefighter repeated the allegations of sexual assault, bullying and harassment to the Assistant Director, Operational Personnel. This included claims the now Commissioner, Greg Mullins was present at the same fire station when the alleged assault to [sic, took] place. This led to a professional standard investigation being commenced, claimed that the investigation was stopped at the request of the firefighter. The firefighter was subsequently admitted to hospital on several occasions, and accepted the workers’ comp claim.
By letter, dated the 20 February this year, the firefighter made allegations of assault, sexual assault, bullying, harassment, drunkenness, at the same City of Sydney fire station, in 1989. The sexual assault allegations were referred to – in writing – to the Police Commissioner, as well as the ICAC on the 4th March. An immediate investigation was commenced in [sic] the allegations of drunkenness, theft, damage to property by the Director, of Greater Metro Operations, the investigation found no current evidence, no current evidence. It goes on to say, the NSW Police, requested a wide-ranging lot of information to assist in their investigation, to the NSW Fire Brigade have fully cooperated with this request. As a result of the investigation, some 31 current and ex-serving firefighters are [sic] been or are being interviewed now by police. As a result of these interviews, during late June, within the last three weeks, two firefighters – in addition to the original complainant, have contacted internal support services, claiming they too, had allegedly, been assaulted in a similar fashion to the first complainant, and in one case of those two firefighters had participated in the alleged assault.”
The ensuing interview with the Minister addressed these allegations, in particular the suggestion that the firefighter in question had been subjected to pressure not to “formalise his complaint”. The Minister said that that matter “is a critical question which we are asking to be investigated”.
Later during the interview, the following exchange was recorded:
“Hadley: Brings me to my next point. Greg Mullins came on this programme with the credit card fraud, by senior officers. It appears to me that’s been covered up. Before your time, again, but it appears that nothing’s been done about the allegations in regard to credit card fraud.
Whan: I’m aware that all allegations that have been made have been referred to ICAC. ICAC is investigating a number of them and, in fact, the brigade took action against one officer who was, who had been found to have misused credit cards. That officer, one of those officers, has actually appealed to the IRC, his demotion. So there is obviously—
Hadley: But hang on, his demotion? Why wasn’t he put out of the job? I mean, his demotion, he can appeal all he likes, but if you find someone, if someone in our accounts department tomorrow misuses their credit card, I’ll tell you where they’ll go: on their bum out the door. And it would happen in every other job. And that’s what firefighters are writing to me about today. I’m not angry with you Minister, I’m angry with the situation. That we have a bloke demoted, when he’s found by investigators to have defrauded the government coffers.
Whan: Look, there is independent processes to investigate these things and I think it would be, I think we’ve to not to rush to judgement on a lot of these. We’ve got to let a lot of processes take their course and not hang someone before they’ve been found guilty, a process that we’ve got to go through. All I can assure you and your listeners Ray, is that on any occasion that I have any of these issues raised with me, they’ve been referred to ICAC and the police and the appropriate authorities immediately. And in the main issue that we’re talking about this morning, ah, I actually wrote to ICAC on the 15th July having received my first full brief on the 14th July.”
There were three further relevant broadcasts made on 22, 23 and 24 July 2009, in respect of which there are no transcripts in evidence. Mr Guymer’s evidence, which has not been challenged, concerning these broadcasts is to be found in his statement (undated) attached to his Application between [7] and [10] as follows:
“7. On the 22nd July I again listened to Ray Hadley on 2GB, on this occasion he repeated his accusations going into more detail of what was too [sic] alleged to have occurred to the victim and the cover up by senior staff. It was very distressing as I felt I was being further implicated into the matter. As the day progressed I received more phone calls from work colleagues, it was obvious to me that within the NSW Fire Brigade it was common knowledge I was involved in these allegations. Ray Hadley had commented that no one from the NSW Fire Brigades was prepared to speak on the matter. The NSW Fire Brigades made no attempt to contact me to offer support. I again had little sleep that night.
8. On the 23rd July I again listened to Ray Hadley on 2GB on this occasion he actually named another officer and me as being involved. Repeating the alleged details of the sexual assault, allegations of a lack of action to support the victim and alleged cover up. My levels of anxiety had reached a point that I had lost control of my emotions. Again the phone started ringing, I could not answer it. I felt my life was out of control, I felt sure everyone was talking about me and whatever I said was just an excuse, that I was being marked. Pam returned home later in the afternoon, answering the phone calls, however during that evening both my parents rang, my father having heard the interview my mother having been told about it. My mother had been told I was involved in the actual sexual assault of the firefighter, she was very distraught and it took considerable time to explain my involvement in this matter and to re-assure her. I could not sleep that night and I felt like I was falling into a hole with no bottom.
9. On the morning of the 24th July I was contacted by the other officer named by Ray Hadley, he discussed his dismay in the matter and asked if I had been contacted officially by anyone from the NSW Fire Brigades offering support or re-assurance. I stated I had not. At the insistence of my wife I made an appointment with my doctor. I decided I could not listen to Ray Hadley again and waited at home before going to the doctor. During my consultation with my Doctor he provided advice, prescribed a course of Endep 25 on [sic] provided a Workcover certificate.
10. Later on the afternoon of the 24th July I was advised I was again subject of Ray Hadley’s interview with the Minister for Emergency Service on that morning. During this interview the Minister stated I had been subject to an investigation and found guilty of credit card fraud by the NSW Fire Brigades, this is false and further stained my reputation with the NSW Fire Brigades and brought me significant humiliation and further damaged me in the eyes of my family and friends as well.”
A “Pre-Liability Assessment” dated 12 August 2009 prepared by Ms Lyn Burgess, consultant psychologist, which had been tendered in evidence by the appellant, has attached a statement made by Mr Guymer which records matters relating to the broadcasts made on 22, 23 and 24 July 2009. That evidence, whilst in some respects more detailed, is consistent with the matters noted immediately above.
The transcript of the broadcast made on 30 July 2009 records Mr Hadley summarising background matters before conducting a telephone interview with the Minister. Included in that summary was the following:
“In early 2007 a current serving firefighter attended a performance meeting with his then superintendent and his inspector, airing the allegations of sexual assault, bullying and harassment. It’s alleged he was pressured by the commander not to formalise his complaint. Now I’ve mentioned the names of the superintendent and inspector. One was recently demoted, over another matter. Fraudulent use of a credit card. He was given a ‘section 10’ by a magistrate when he fronted a court recently. How he is still in the fire brigade is beyond me. In any other capacity someone, fiddling the books would be punted.”
During the interview with the Minister, the following exchange occurred:
“Hadley: Are you happy and confident that the Commission’s made the right decision to be demoting a fellow who’s been allegedly and now confirmed, knocked off money? Via the misuse of a credit card?
Whan: After we spoke last time Ray, I reviewed the briefings that I got on that person and they did go through a number of pro’s and con’s of complete dismissal. So, technically what they did was dismiss, and then reappoint to the lower level. That person is still in the midst of an appeal on that, so that—
Hadley: Is the appeal is obviously not in the court because he was Section 10’ed so it’s at the IRC.
Whan: Yeah, its [sic] an industrial appeal. And I think they did take into account appropriate things like 30 years good service conduct and no other blemishes—
Hadley: Well there’s a blemish there now, because he was complained to, by this officer in 2007 in cohorts with another man and no action was taken. His record isn’t quite blemish free anymore.
Whan: No, it’s a very serious concern and that’s something which is being investigated by ICAC.”
The departmental charge against Mr Guymer concerning alleged misuse of his NSW government credit card (GC card) had been withdrawn in April 2009. Notice of that withdrawal was given in correspondence to Mr Guymer dated 9 April 2009 from the appellant signed by the Nominated Officer, Mr John Benson.
Mr Guymer, in his undated statement, makes reference to a three-hour interview on 3 May 2010 between himself and Mr Lance Wright, retired judge, who had been appointed to investigate the sexual assault allegations and associated matters. Mr Guymer states that he was then informed that the firefighter concerned had submitted a complaint dated February 2009 regarding his treatment by himself and several other officers. He states, “I was never advised of this complaint and it was a copy of this complaint that was forwarded to Ray Hadley in 2009”.
The statement by Mr Guymer forming part of Ms Burgess’s pre-liability report records the following matters concerning Mr Guymer’s meeting in 2007 with the firefighter:
“In relation to the allegations of sexual assault, I recall that in 2007, at the instigation of a direct supervising Officer whom I managed, I spoke to an Officer in relation to his work performance. The Officer attributed his poor work performance to having been sexually assaulted at work in 1989, and he named the Commissioner and other Officers during the interview. I recollect that I said that I was happy to pursue his complaint on his behalf; however he did not want me to take any action in this regard, saying that he raised the matter by way of explaining why he was not performing properly. I was unable to investigate the Officer’s complaint because he would not put it in writing and he would not sign the notes that I had made in relation to the matter. The Officer was unhappy with me because, under my duty of care, I reported the matter to the Area Commander and I write [sic] a comprehensive report of what had occurred. I felt that I had done all that I could to assist the Officer and I followed my duty of care with him.”
It is recorded in a report dated 14 September 2010 of Jennifer Brain, social worker and psychotherapist, that Mr Guymer “was notified on 7/09/10 that the ICAC had recommended no further action on the sexual assault claims”.
A transcript of an “interview” with Superintendent Chris Jurgeit is attached to Ms Burgess’s pre-liability report. Since his demotion, Mr Guymer reported directly to Mr Jurgeit. At [5] of that statement, Mr Jurgeit refers to Mr Guymer having to deal with the firefighter’s complaint and states “I understand that Mr Guymer took the appropriate action in relation to the allegation”.
Mr Guymer’s workers compensation claim was declined by the appellant’s insurer and notice was given to him pursuant to s 74 of the 1998 Act by letter dated 2 September 2009. That notice disputed the occurrence of injury (s 4 of the 1987 Act) and asserted that Mr Guymer’s employment was not a substantial contributing factor to injury (s 9A of the 1987 Act).
The insurer’s decision was reviewed following which, on 8 July 2010, notice was given to Mr Guymer confirming the original decision. That notice included advice that the appellant relied upon the following reasons for declining liability:
“• Your injury did not arise out of or in the course of your employment with the Brigades (s4 Workers Compensation Act 1987) [the 1987 Act];
· Employment with the Brigades has not been a substantial contributing factor to any injury arising out of or in the course of employment (s9A of the 1987 Act);
· Any psychological injury suffered by you was wholly or predominantly caused by reasonable action taken by or on behalf of your employer with respect to discipline and/or demotion (s11A of the 1987 Act);
· Any incapacity suffered by you has not resulted from any work related injury (s33 of the 1987 Act);
· You have not incurred expenses for medical and related treatment as a result of any work related injury (s60 of the 1987 Act).”
The appeal commenced on behalf of Mr Guymer before the Industrial Relations Commission of New South Wales (IRC) was determined by Commissioner Tabbaa on 9 June 2010. The Commissioner found that, whilst the demotion was appropriate, the requirement that Mr Guymer be ineligible to apply for merit based promotion until the conclusion of the two year period was “far too severe a penalty”. The following Direction was made:
“The Commission directs, pursuant to section 136(1) of the Industrial Relations Act 1996, that Inspector Guymer be eligible to apply for merit based promotion after the conclusion of the first year of demotion. If he has been unable to obtain such merit based promotion at the conclusion of the 2 year demotion period, then he be automatically elevated to one rank above the position of Inspector, when such a vacancy arises.”
Mr Guymer’s medical evidence
Dr Medhat Kirlous
Mr Guymer relied upon the evidence of Dr Medhat Kirlous, a general practitioner, who treated Mr Guymer in respect of his psychological problems. In a report dated 30 November 2010 Dr Kirlous states he was first consulted on 25 June 2009 at which time Mr Guymer reported that he had been unable to sleep properly since October 2008. That report also records that, subsequently, Mr Guymer informed him that:
“In July 2009, claims of sexual assault within the NSW Fire Brigades were reported in the media. On 21 July 2009 2GB talkback radio host Ray Hadley linked Mr Guymer’s name to the sexual assault claims.
A few days later the NSW Minister for Emergency Services spoke on the program, also mentioning Mr Guymer’s name in relation to the sexual assault claims, adding that Mr Guymer had already been demoted for credit card fraud. Media reports on the sexual assault claims in the NSW Fire Brigade have continued on and off since that time.”
Dr Kirlous diagnosed a condition described as “anxiety depressive disorder” and provided counselling and support. Anti-depressants were prescribed following a consultation on 27 July 2009 and that practitioner issued a WorkCover medical certificate. It is noted in that report that Mr Guymer had been referred to Dr Peter Whetton, psychiatrist, for further assessment, management and support. Dr Kirlous also expressed the following opinion:
“The sustained psychological injuries are consistent with and most likely caused by the events occurred [sic] in July 2009, involving comments on the Ray Hadley program”.
Ms Jennifer Brain
Mr Guymer tendered in evidence a report by Ms Jennifer Brain dated 14 September 2010. Ms Brain states that she first saw Mr Guymer for counselling on 23 May 2009 following a referral from his general practitioner, Dr Hany Assaad. I note in passing that it appears that both Drs Assaad and Kirlous are practitioners based at the All Saints Medical Centre at Ramsgate Beach NSW. Mr Guymer, at the first consultation, complained of sleeping difficulties since October 2008. Ms Brain’s report includes a lengthy and detailed history relating to the proven allegations of dishonesty as well as particulars of Mr Guymer’s experience in July 2009 at the time of the subject radio broadcasts. Ms Brain records that:
“Mr Guymer has been unable to return to work since being named and discussed on the Ray Hadley program”. It was Ms Brain’s opinion that “the psychological injuries sustained are consistent with, and most likely caused by, the events occurring between 20/07/09 and 24/07/09 (involving comments on the Ray Hadley program)”.
Dr T O Clark
A report of Dr T O Clark, consultant forensic psychiatrist, dated 22 April 2010 was tendered by Mr Guymer. Dr Clark had been qualified by Mr Guymer’s solicitors to provide an opinion concerning Mr Guymer’s condition and whole person impairment.
Dr Clark has recorded a brief history as to investigation of Mr Guymer concerning the allegations of dishonesty which lead to a demotion, and the publicity given to both the allegations of dishonesty and “allegations of sexual misconduct on his part”. Dr Clark expressed the view that Mr Guymer suffered from a Severe Depression, being the evolution of an Adjustment Disorder. Dr Clark also expressed the view that work was probably a substantial contributing factor to his injury. Dr Clark assessed Mr Guymer’s whole person impairment resulting from the injury as being 17 per cent.
Appellant’s medical evidence
Dr Michael Prior
The appellant tendered a report of Dr Michael Prior, consultant psychiatrist, dated 12 August 2010. Dr Prior had been qualified by the insurer to provide an opinion for the purposes of this litigation as well as an assessment of any whole person impairment suffered by Mr Guymer. Dr Prior recorded a comprehensive and detailed history. Mr Guymer described his injury to Dr Prior as concerning the radio broadcasts of Mr Hadley which had occurred in July 2009. Mr Guymer explained to Dr Prior his involvement with the firefighter in question as follows:
“The sexual assault that Hadley referred to was in 1985 but I didn’t know the victim at that stage.
In September 2007, I was interviewing the alleged victim about performance issues and he told me that he had been sexually assaulted at work. I was a bit flabbergasted at the time; I emailed my boss and made a report about it.”
Dr Prior’s report contains a very detailed summary of Mr Guymer’s psychiatric symptomatology and a description of his “current psychiatric status”. Dr Prior expressed the view that an appropriate diagnosis was that of “Chronic Adjustment Disorder with Anxious and Depressed Mood”. The opinion is expressed that Mr Guymer’s disorder was caused by the broadcasts made in July 2009. The view is also expressed that Mr Guymer’s disorder had “been perpetuated by ongoing investigations into the allegations raised in the radio program, by ICAC and, to a lesser extent, by his appeal against his demotion”.
Dr Prior, in response to a specific question put to him by the insurer, expressed the view that Mr Guymer’s employment:
“Was a substantial contributing factor to his [disorder]. Specifically him learning of the allegations against him via the radio broadcast was the substantial cause of his [disorder].
If he had not learnt about this material at all, then his [disorder] would probably not have occurred.
It was not just the allegations against him but the manner in which the allegations were made public by the radio broadcast that contributed substantially to his [disorder]”.
Dr Prior, in response to a question put to him by the insurer, stated that Mr Guymer’s disorder was not wholly or predominantly caused by one or more of the actions being transfer, demotion, promotion, performance appraisal, discipline, retrenchment, dismissal or provision of employment benefits. It was his view that Mr Guymer was totally incapacitated for work in his pre-injury duties with the appellant. He considered that Mr Guymer “would most probably be able to work in some other unrelated role which was divorced from the Fire Brigade”.
Ms Lyn Burgess
The appellant relied upon a report of Ms Lyn Burgess, consultant psychologist, dated 12 August 2009 which was entitled “Pre-Liability Assessment”. That report was requested by the insurer following receipt of Mr Guymer’s claim. The report is a factual analysis which includes a number of statements including one by Mr Guymer. There is an opinion provided by Ms Burgess as to diagnosis of Mr Guymer’s condition, and views are expressed as to the cause of that condition.
Ms Burgess expressed the view that, at the time of her assessment being 6 August 2009, Mr Guymer’s symptoms warranted a clinical diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood. The view was also expressed in that report that:
“there is one major causative factor to Mr Guymer’s current distress. Specifically, it would appear that being reported during radio broadcasts in relation to incorrect allegations of credit card fraud and sexual assault by senior management of the NSW Fire Brigades, and being named by the radio announcer in this regard, is the major causative factor to Mr Guymer’s current distress and appeared to be the precipitating factor to Mr Guymer going off work, given that it was the most proximal factor to him going off work in July 2009”.
Ms Burgess also expressed the view that the investigation conducted concerning the allegations made against Mr Guymer and his subsequent demotion served to:
“pre-dispose him somewhat in terms of vulnerability, however does not appear to be a major causative factor to his current distress given that he remained at work, functioning effectively, until the occurrence of the recent radio broadcast issues”.
It is noted in the report of Ms Burgess that “[m]anagement reported that high level information by way of a Ministerial brief and Crown Solicitor’s advice was leaked to the media”. This lead in turn to enquiries being made of the appellant by the Sydney Radio Station 2GB.
Ms Burgess noted when summarising relevant medical history that Dr Assad had been Mr Guymer’s regular treating general practitioner; however, that practitioner had referred Mr Guymer to Dr Kirlous, at the same practice, because Dr Assad “does not deal with workers compensation claims”.
Case management notes
Mr Guymer tendered a number of documents under cover of an Application to Admit Late Documents dated 9 December 2010. They are described as “Management notes (NSW Case) of D Kozak dated 27 July 2009; notification of injury, illness, exposure and near miss dated 27 July 2009, and patient medical notes/records of G Small and D Kozak (Rehab Officers)”.
The case management notes, which are not signed, record an injury on 24 July 2009. The manner in which the injury occurred is stated as “named on radio as being involved in fraud and implicated in assault”. The Notification form details the “notifier” as being Diane Kozak, return to work coordinator. The date of notification was stated to be 27 July 2009 and the injury suffered by Mr Guymer which was the subject of the notification was described as “named on radio last week as having committed credit card fraud and was implicated in an alleged assault matter”.
The patient medical notes are headed “complete record” and appear to be computer generated. Individual entries commence on 4 March 2009, the last entry being 21 September 2010. The records appear to be compiled by various rehabilitation officers; however, most attendances upon Mr Guymer appear to have been those of Ms Kozak. No diagnosis is noted in the two entries made in March 2009. An attendance on 1 May 2009 records Mr Guymer contacting the rehabilitation officer because of stress/anxiety/depression. It was Ms Kozak’s noted view that Mr Guymer required medical treatment. A notation dated 8 May 2009 relates to anxiety/depression and it is noted by Ms Kozak that Mr Guymer “has been off work unfit this week”.
An entry in the notes dated 23 June 2009 records Mr Guymer continuing to suffer from stress/anxiety. Symptoms are described and it is noted that Mr Guymer “is at work at Greenacre and said he is coping fine with his work”.
An entry in the notes dated 26 June 2009 records that Mr Guymer “was certified unfit for work on 24/6/09 until 29/6/09 by Dr Assad, his treating doctor. He is still sleep deprived but until some of his personal matters are resolved this is likely to continue. He will contact me again next week, if not I will check on him”.
The next entry appearing in the notes is dated 27 July 2009 where it is noted that Mr Guymer had submitted a compensation medical certificate for stress/anxiety/depression after he was named on a radio station last week. The note records:
“the information on the radio was incorrect, but it has caused him and his family great distress. [Mr Guymer] feels totally devastated by this and extremely angry. He said he does not understand how he can be linked to an alleged assault on a FF when he was nowhere near where it took place. He said the FF revealed his allegations to him and he told him to put in a report. He then spoke with his senior management about the allegations. He said without an official report he could not do anything. He also said he was not charged with credit card fraud. He is to continue with his counselling”.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act as amended by the Workers Compensation Legislation Amendment Act 2010: Sch 6 Pt 19G cl 8 to the 1987 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
The appellant’s primary submission is that the Arbitrator has erred in law in the manner of his determining that Mr Guymer had received an injury arising out of his employment. An alternative argument is advanced on this appeal, upon the acceptance of the correctness of the Arbitrator’s finding that the injury arose out of employment, that the subject 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 demotion or discipline (s 11A of the 1987 Act).
It will be recalled that the injury found by the Arbitrator occurred at a time when Mr Guymer was on leave. The hearing of the dispute before the Arbitrator was thus limited to the question as to whether Mr Guymer received personal injury “arising out of his employment” in terms of s 4(a). No other allegation of injury was made, in particular, there was no allegation that the injury consisted of an aggravation, acceleration, exacerbation or deterioration of a disease within the meaning of s 4(b)(ii) of the 1987 Act.
Ground one - Did the Arbitrator err in his finding that injury arose out of Mr Guymer’s employment?
The appellant has provided lengthy and careful submissions which suggest that the approach adopted by the Arbitrator demonstrates error of law in his application of the provisions of s 4. Attention is drawn to the finding made by the Arbitrator at [65] of Reasons where it was stated:
“Applying a common sense evaluation to the causal chain, I find that the statements made by Mr Hadley related to Mr Guymer’s employment with the respondent, and caused his psychological injury”.
It is suggested (at [9.1] of submissions) that the finding noted immediately above, which was made in the context of the Arbitrator’s consideration of the broadcasts on 21 and 23 July, constitutes a finding that Mr Guymer’s psychological injury was caused by the broadcast comments on those occasions. The argument is then advanced that, given such a finding, the injury did not arise out of employment within the meaning of s 4 of the 1987 Act. This, it is argued, is an error of law.
The appellant draws attention to the Arbitrator’s earlier statement at [57] of Reasons where it was said:
“Whilst the facts in Kooragang are different to those in this case, what is required is a commonsense evaluation of the causal chain or a causative element to establish whether there is a connection between Mr Guymer’s psychological injury and his employment that the injury has arisen out of”.
It is put that the Arbitrator’s reference to “a connection” between injury and employment is “an erroneous interpretation of s 4 of the Act”.
Attention is drawn to the Arbitrator’s reliance upon what was stated by the Full Court of the Supreme Court of New South Wales in Nunan v Cockatoo Docks and Engineering Co Ltd (1941) 41 SR (NSW) 119 (Nunan). It appears that the appellant accepts that, having regard to Nunan, the term “arising out of employment” involves a causal element. The Arbitrator’s error suggested in these submissions is that attention was given only to the existence of a “connection” rather than a “causal connection”. A mere “connection”, it is put, is insufficient to satisfy the “requisite causal connection” to enable a finding of injury. It is further argued that the Arbitrator’s finding that the broadcast comments “related to” employment (at [65] of Reasons) “is materially different” to a finding that injury was “caused or materially contributed to” by the employment as discussed in Nunan.
An argument is advanced that the Arbitrator “erred in his application of the ‘common sense analysis of the causal chain’”. It is put that the broadcasts were made by “a third party entirely unconnected with the appellant or Mr Guymer and were the product of the broadcaster’s independent will”. It was acknowledged by the Arbitrator (at [61] of Reasons), it is argued, that the appellant had “no control over Mr Hadley’s conduct or what he would say on public radio”. The further point is made in argument that the subject matter of the comments “were made some two years after [the performance appraisal at which time the sexual assault allegations were made]”.
It is further argued that the reasoning adopted by the Arbitrator (at [61]-[66] and at [79]) demonstrates that the Arbitrator erroneously had adopted the “but for” test of causation. Reference is made to the decision of Roche DP in Qantas Airways v Watson (No 2) [2010] NSWWCCPD 38. It is put that the broadcast comments cannot be said to be “part of [Mr Guymer’s] employment”. Such is not established, it is put, by the findings that the comments “related” to employment and that had Mr Guymer not been so employed, such comments would not have been made.
An unbroken causal chain is not established, it is argued, by a common sense analysis of the circumstances. The conduct of the unknown person causing the “leak” of the Ministerial brief and the conduct of Mr Hadley had “interrupted” any causal chain. It is put that the appellant had no control over those individuals.
It is argued that the Arbitrator “erred in his consideration of [Mr Guymer’s] ‘employment’” within the meaning of s 4. The reasoning of the Arbitrator is criticised upon the basis that he “gave insufficient consideration to what [Mr Guymer] was actually required or expected to do in his employment”. Reliance is placed upon the decision in Badawi v Nexon Asia Pacific Pty Limited t/as Commander Australia Pty Ltd (2009) 75 NSWLR 503 (Badawi).
The decision of the High Court of Australia in Smith v Australian Woollen Mills Ltd (1933) 50 CLR 504 (Smith) is relied upon by the appellant in support of an argument that, whilst Mr Guymer “ultimately experienced a situation where he was deleteriously named on public radio”, such was not “part of the injured person’s employment to hazard, to suffer, or to do that which caused his injury”.
The submission is put that “the mere fact that Mr Hadley’s comments made reference to the overall employment of [Mr Guymer] does not… make them part of ‘employment’ as understood following Federal Broom, Mercer and Badawi”.
It is accepted by the appellant that “credit card fraud” was not something in respect of which Mr Guymer was charged. It is put that Mr Hadley was in error concerning this matter, but that that error is “not a factor of [Mr Guymer’s] employment”.
At [9.19] and [9.20] of submissions it is put that the conduct leading to police charges took Mr Guymer outside his employment. It is further submitted that the broadcasts did not “suggest that [Mr Guymer] was involved or implicated in sexual assault, harassment or similar conduct in his employment”. Any distress, it is argued, suffered by Mr Guymer because of the broadcasts concerning sexual assault and cover up “did not arise out of his own employment, but only out of ‘being employed’”. Such does not satisfy “the definition” of employment in s 4.
The provision which had been the subject of the Arbitrator’s consideration is s 4(a) of the 1987 Act which provides:
“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment”.
There was no dispute between the parties concerning the receipt by Mr Guymer of a psychological injury which followed upon the July broadcasts. The task before the Arbitrator was to determine whether, on the facts as found, that injury had “arisen out of” his employment.
That question was addressed by the Arbitrator between [49] and [66] of Reasons. Whilst it is clear that the Arbitrator correctly identified the question requiring determination and proceeded to consider those authorities apposite to that question, I accept the appellant’s submission that the manner in which the Arbitrator’s reasoning is expressed at [65] (noted at [69] above) appears to be directed to a question different to that which required determination. Having said that, I reject the appellant’s first argument that the finding (at [65] of Reasons]) that the injury had been caused by the broadcasts has the consequence that the injury “therefore did not arise out of employment” ([9.2] of submissions). My reasons for so concluding appear below.
The reasoning of the Arbitrator demonstrated at [57] of Reasons (noted at [71] above) was said to be flawed given his use of the expression “a connection”. Whilst I accept that the wording used may be seen as obscuring the question rather than stating it plainly, it is clear that the Arbitrator had in mind those general considerations as to the question of causation expounded in the decision of Kirby P in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 (Kooragang). I reach that conclusion given the Arbitrator’s acknowledgement that the question addressed in Kooragang was to be distinguished from the question before him. That distinction is that in Kooragang the question was whether the worker’s death “resulted from” an admitted injury. I am satisfied that the Arbitrator’s use of the term “a connection”, following upon his consideration of Kooragang, was intended to connote “causal connection”.
As was made clear by the decision in Badawi, the meaning of the term “arising out of employment” was settled following the decision in Nunan. The phrase, as is demonstrated by Badawi, related to causality. The meaning involved the “adoption of a common sense approach to the application of the phrase, noting that it involved a causative element” (per Allsop P, Beazley JA and McColl JA at [73]).
The arguments advanced which suggest error by the Arbitrator concerning the “common sense analysis” seek to emphasise that Mr Hadley, a third party, was not controlled by the appellant and made the broadcasts in exercise of his “independent will”. Both matters, as noted in submissions, were acknowledged by the Arbitrator. Neither of those matters, nor the fact that the broadcasts were made two years following the performance appraisal of the firefighter, preclude a conclusion reached, by exercise of commonsense, that the psychiatric injury arose out of employment.
I reach that conclusion given the following matters, most of which had been taken into account by the Arbitrator:
(a) the genesis of the broadcast made 21 July 2009 was the leaking of the Ministerial brief. That was the appellant’s highly confidential document and, it may be inferred, plainly concerned suggested misconduct of Mr Guymer in the performance of his employment duties;
(b) the responsible Minister attended the radio station studio on that occasion to participate in an interview which, as demonstrated in transcripts, concerned Mr Guymer in his capacity as an officer of the appellant. Whilst he was not identified at that time, it is clear that the false suggestion of credit card fraud and a cover up, matters not corrected by the Minister, related to the earlier investigation of Mr Guymer. There is abundant evidence that colleagues and family identified Mr Guymer as being the officer allegedly guilty of “credit card fraud”;
(c) the broadcast was concerned, in part, with the firefighter’s complaint made in February 2009 noted at [30] and [38] above. That complaint, detail of which was broadcast, related in part directly to Mr Guymer’s employment and the manner of performance of his duties. The unchallenged evidence of Mr Guymer is that he was not informed by the appellant of the complaint at the time it was made. It seems from the evidence, and I infer, that Mr Guymer did not hear the introductory portion of the broadcast. As stated by Mr Guymer he was informed of that complaint by Mr Wright in May 2010 when interviewed. That only part of that broadcast was heard by Mr Guymer is, in my opinion, of no significance in determining whether his injury was causally related to his employment, and
(d) in the broadcast made on 23 July 2009 Mr Guymer was named as being one of the officers involved in the suggested “cover up”. The evidence of Mr Guymer is that Mr Hadley on that occasion stated that no one from the NSW Fire Brigade was prepared to speak on the matter.
The matters I have summarised above each concern Mr Guymer and the performance of his duties as well as allegations of improper conduct on his part as an officer of the appellant. In the circumstances it is plain that the injury received following the broadcasts was one, as found by the Arbitrator after a commonsense evaluation of the evidence, that arose out of his employment in terms of s 4.
I have earlier (at [84]) rejected the appellant’s argument that the finding that the injury was “caused” by the broadcasts precludes a finding that the injury arose out of employment. In so concluding I have had regard to that which was said by Windeyer J in Government Insurance Office (NSW) v R J Green & Lloyd Pty Ltd (1966) 114 CLR 437 where, in a different context, the terms “caused by” and “arising out of” were considered. His Honour there said (at 447):
“‘Caused by’ connotes a ‘direct’ or ‘proximate’ relationship of cause and effect. ‘Arising out of’ extends this to a result that is less immediate; but it still carries a sense of consequence”.
A finding that the injury in the present case had a direct or proximate relationship to the broadcasts does not, as earlier stated, preclude a conclusion, after a commonsense evaluation of the evidence, that the injury was a consequence of the employment and as such was causally related to it and thus arose out of employment.
The argument that the Arbitrator had, in error, applied the “but for” test when considering the question of causation must be rejected. The use of the term “but for” appears at [79] of Reasons. That term must be understood in context. It was the Arbitrator’s expressed view that “Mr Guymer would have returned to work awaiting the hearing of the appeal to the IRC. I think it likely that Mr Guymer would have returned to work awaiting the hearing of the appeal to the IRC, but for the events of the radio programs” (at [79] of Reasons). The Arbitrator was not there considering the question of causal nexus. It was his view that, if not for injury, Mr Guymer would have continued working.
I have above attempted to summarise the appellant’s submissions concerning “suggested error” in the Arbitrator’s consideration of Mr Guymer’s employment (between [77] and [79]). The Arbitrator dealt with this question between [59] and [61] of Reasons. In my view no error by the Arbitrator is demonstrated in his finding that the happenings in July 2009 were related to Mr Guymer’s employment. His employment was performance of duties as an officer of the appellant. It was his employment, on the evidence, that required him to hazard or to suffer the broadcasts which caused the injury. It was not Mr Guymer’s case that the broadcasts were part of his employment, as suggested in argument, but that the injury caused by the broadcasts arose out of his employment.
The arguments I have attempted to summarise at [80] and [81] above must be rejected. The erroneous allegation of credit card fraud was made and not corrected. It was made in the context as summarised above at [32]. Consideration of the question as to whether injury arose out of employment does not require debate concerning “questions of the scope of employment. The question which [requires determination] is to be answered by enquiring whether there was a causal connection between the employment and the injury” (Tarry v Warringah Shire Council [1974] 48 WCR 1 (per Samuels JA at 8). It follows from the Arbitrator’s findings, with which I respectfully agree, that Mr Guymer’s employment required that he suffer the consequences of that false allegation.
The appellant’s suggestion that Mr Guymer’s conduct leading to a police charge and the absence of any suggestion in the broadcasts that Mr Guymer was involved in sexual assault are relevant to the question as to whether injury arose out of employment must also be rejected. Those matters are of no relevance given the nature of Mr Guymer’s case as summarised at [88] and [89] above.
Ground two – The s 11A defence
The appellant argues that there is an inconsistency between the Arbitrator’s finding that the subject injury caused by the broadcasts was causally related to Mr Guymer’s employment and his finding that injury was not caused by actions taken by or on behalf of the appellant with respect to discipline or demotion in terms of s 11A of the 1987 Act. Reference is made to the decision of Spigelman CJ in Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 (Sinclair), where his Honour stated (at [58]):
“To avoid the absurdity that arises from a literal approach, and having regard to the context of the legislative scheme and its purpose, it is necessary to understand s11A to mean that the employer is not liable where, to the extent that the employment contributed to the injury, that contribution was wholly or predominantly caused by reasonable action taken with respect to ... discipline.”
It is put that, accepting the finding of injury (s 4), “it necessarily follows that Mr Hadley’s comments were in some way part of [Mr Guymer’s] employment”. The broadcast comments are analysed in the submission and it is suggested that reference was made to “possible disciplinary or demotion consequences for [Mr Guymer]”, and that reference was made to an appearance before the Local Court on a charge relating to obtaining money by false statements. That conduct, it is put, took him “outside of his employment”.
The argument is developed that, upon acceptance of that analysis:
“the only factors in such employment that might have been causative, and the only factors mentioned by Mr Hadley were, firstly, creation of a brief relating to possible inadequate performance of duty (the performance appraisal process involving the firefighter) and, secondly, disciplinary action taken against Mr Guymer for ‘misappropriation of funds’, albeit incorrectly stated by Mr Hadley to be credit card fraud.”
It is put, following reference to the judgment of Davies AJA in Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; 19 NSWCCR 181, that the matters commented upon were actions taken “with respect to possible discipline or demotion”.
It is noted in submissions that agreement had been reached at the arbitration hearing that there was “no issue with respect to reasonability”. The submissions appear to treat the “leaking” of the ministerial brief as a fact dissociated from the question of “reasonableness”. Whilst it is not conceded in submissions that such “leaking” was a blemish in the disciplinary process (as addressed by Spigelman CJ in Sinclair at [69]), there is a need, it seems to be argued, to determine “whether the whole process was, notwithstanding the blemishes, ‘reasonable action’” (per Spigelman CJ at [97]).
This alternative ground relied upon by the appellant suggests that a defence to the claim is afforded by the provisions of s 11A of the 1987 Act which provide, relevantly:
“(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 appellant’s suggestion of inconsistency, which I have noted at [96] above, must be rejected. The appellant is incorrect to assert that “Mr Hadley’s comments were in some way part of the respondent worker’s employment”. The broadcasts and their consequences, as observed earlier, were concerned with the employment, and the injury received was causally related to the employment. To successfully raise a defence pursuant to s 11A, the appellant needed to establish that the injury was wholly or predominantly caused by its reasonable action taken or proposed to be taken by it or on its behalf with respect to one or more of the matters enumerated in s 11A(1). There was no disciplinary action taken or proposed to be taken at the time of the broadcasts in respect of any credit card fraud. With respect to the suggested investigations into Mr Guymer’s involvement in the complaint of sexual assault, all that is revealed on the evidence is that there was a leaked ministerial brief. At the time of the broadcasts, Mr Guymer had no knowledge of that action being taken by the appellant, and indeed had no knowledge of any complaint being made by the firefighter in February of that year. The injury was caused by the public broadcast, not by action taken with respect to discipline or demotion, as is asserted in argument.
The evidence establishes that Mr Guymer sought treatment in May 2009 with respect to stress and anxiety following the disciplinary action taken by the appellant concerning the fraudulent expense claims. The evidence suggests that he, contrary to matters stated by him and a finding made by the Arbitrator (at [79] of Reasons), had two short periods of absence from work by reason of his anxious state (refer [61]–[63] above). No injury relevant to this claim is alleged until the occasion of the broadcasts. The medical opinions found in the evidence are unanimous that it was those broadcasts which were the proximate cause of the incapacity. I conclude that the appellant has failed to establish that the Arbitrator erred in finding that the subject injury was not either wholly or predominantly caused by its action taken or proposed to be taken with respect to demotion or discipline. I note again that the question of reasonableness was not in issue between the parties.
It may be seen that I have rejected each of the grounds advanced by way of challenge to the Arbitrator’s determination and, in the circumstances, the appeal must be dismissed and the Arbitrator’s determination should be confirmed. Appropriate orders are made hereunder.
DECISION
The appeal is dismissed. The Arbitrator’s determination made in a Certificate of Determination dated 14 March 2011 is confirmed.
COSTS
The appellant is to pay Mr Guymer’s costs of the appeal.
Kevin O'Grady
Deputy President
29 July 2011
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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