Gooden v Secretary, Department of Education
[2024] NSWPIC 236
•8 May 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Gooden v Secretary, Department of Education [2024] NSWPIC 236 |
| APPLICANT: | Janice Gooden |
| RESPONDENT: | Secretary, Department of Education |
| MEMBER: | Lea Drake |
| DATE OF DECISION: | 8 May 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; applicant was the subject of a disciplinary enquiry; the outcome of that enquiry was the demotion of the applicant from her role as a principal to that of a classroom teacher; psychiatric injury; Held – the actions of the employer in relation to transfer, demotion and discipline of the applicant were not reasonable considered separately and together; the respondent’s section 11A defence was not made out. |
| DETERMINATIONS MADE: | The Commission determines: 1. The applicant was a worker employed by the respondent when she sustained a psychological injury in the course of her employment. 2. The course of the applicant’s employment with the respondent was the main contributing factor to the applicant contracting the disease. 3. The injury was not wholly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, discipline and demotion taken either together or separately. 4. The injury was not predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, discipline and demotion taken either together or separately. 5. The respondent has failed to establish a defence pursuant to s 11A (1) of the Workers Compensation Act 1987. The Commission orders: 6. The lump sum claim is remitted to the President for referral to a Medical Assessor to assess permanent impairment as follows: (a) date of injury: 3 September 2019; (b) body system: psychiatric injury; (c) method of assessment: whole person impairment, and (d) documents to be referred: report of Dr Chowdary dated 9 March 2023, report of Associate Professor Robertson dated 9 February 2021 and report of Dr Ben Teo dated 18 August 2022. A brief statement is attached setting out the Commission’s reasons for the determination. |
STATEMENT OF REASONS
BACKGROUND
Janice Gooden (the applicant) was employed by the Secretary, Department of Education (the respondent) in various roles from 1987.
The applicant was the subject of a disciplinary enquiry. The outcome of that enquiry was the demotion of the applicant from her role as a principal to that of a classroom teacher.
The applicant suffered a psychiatric injury in the course of her employment arising from events which followed her suspension.
The deemed date of injury is 3 September 2019, which was the date when the applicant received a letter of suspension. Her last date of actual work was 25 March 2021. Her employment ceased on 6 December 2022 when she was medically retired as a result of her psychiatric condition.
It is not disputed that the applicant suffered a psychiatric injury as a result of these workplace events. She was medically retired as a result of her psychiatric condition.
The sole issue in dispute is whether the respondent is entitled to a defence pursuant to s 11A of the Workers Compensation Act 1987 (1987 Act).
MATTERS IN DISPUTE
It is not disputed that the applicant is suffering from a psychological disorder, a disease contracted in the course of employment pursuant to s (4)(b), which causes her to be unfit for employment. The issue in dispute is whether the respondent has established a defence pursuant to s 11A of the 1987 Act. Is the condition suffered by the applicant wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal? The respondent relies on reasonable management action with respect to transfer, discipline and demotion.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
Mr de Greenlaw of counsel, instructed by Mr Adams of Adams and Company Lawyers appeared for the applicant. Ms Warren of counsel, instructed by Mr Mc Clean of Bartier Perry Lawyers, appeared for the respondent.
I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
RELEVANT LEGISLATIVE PROVISIONS
Section 4 and s 11A of 1987 Act are as follows:
“S.4 Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c) does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
Regarding allegation 11
S11A. 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.
(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(5) (Repealed)
(6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)—
(a)the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
EVIDENCE
There was no application to adduce oral evidence or cross examine the applicant or any other witnesses as to any factual dispute before Personal Injury Commission (Commission).
At commencement of the conciliation/arbitration the parties agreed that this was a one issue hearing. If the respondent established its s 11A defence there would be an award for the respondent. If the respondent did not establish its s 11A defence the applicant would seek that an award be entered in favour of the applicant for a whole person impairment of 22% arising from her psychological injury and based on the report of Dr Chowdary, whose assessment was uncontradicted.
Counsel for the applicant had prepared a written submission. Whilst acknowledging that the onus was on the respondent to establish that their actions were reasonable, counsel for the applicant offered to provide his submission in advance to counsel for the respondent and give her the opportunity to address any issues raised his submission in her address.
Counsel for the respondent took that opportunity after consulting with her instructing attorney.
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (ARD) and attached documents;
(b) Reply to ARD (Reply) and attached document, and
(c) written submission on behalf of the applicant provided by applicant’s counsel dated 15 April 2024 and tendered at the conciliation/arbitration.
The applicant’s evidence
I have summarised the applicant’s evidence in a skeleton fashion from the statement[1] provided by her.
[1] ARD page 9.
The applicant was employed as a school teacher. She commenced work in 1987.
In April 2016 she was appointed as Principal of Lucas Heights Community School.
In April 2019 the applicant commenced a temporary merit panel selected role as Chief Education Officer, Leadership Standards Principles. The role required her to work at Head Office in Parramatta. She had a right of return to Lucas Heights Community School.
On 2 August 2019 the applicant was informed by Ms Perkins, her replacement principal at Lucas Heights Community School, that Mr Mitchell, the Deputy Principal, had arranged for soil fill on site and that it “appeared dirty”. It had been reported to the appropriate section of the Department of Education. The applicant was very worried for the students and school community.
Following a subsequent upsetting conversation with a Ms French on 6 August 2019 the applicant undertook to answer questions put by Ms French regarding the fill obtained by Mr Mitchell and the process involved. In correspondence dated 6 August 2019 the applicant advised that she had followed historical practices put in place by the previous principal Mr Haydon and implemented by Mr Mitchell. Mr Mitchell had assured her that the fill was clean. She acknowledged that she did not know that the soil required certification.
The applicant experienced subsequent difficulties in her employment at Head Office which caused her to feel on edge, demoralised and confused. These were detailed in her statement. She later concluded that these difficulties arose out of the investigation that was taking place at Lucas Heights. She believed she had been subject to “gas lighting, gossip and persecution”.
The applicant met an officer of the Department, Sandra Robinson, on 3 September 2019. She was read a letter which made serious allegations against her, advised that her position was untenable and informed her that her return to her substantive position at Lucas Heights was not appropriate. She was directed to Bankstown Senior College to be a classroom teacher with no executive function or responsibility. She found this treatment to be “deliberate, cruel and unprecedented action”. She was escorted from the premises in a humiliating fashion. She felt “completely traumatised and betrayed”.
The applicant was escorted to the elevator clutching her possessions. She had difficulty standing and breathing. She was crying uncontrollably. She was presented with a limited list of persons she could speak to.
Confidential was emphasised at all times during this process leaving the applicant feeling isolated.
At 10.30pm that night the police attended her residence to perform a welfare check. This was initiated by her replacement principal at Lucas Heights who was concerned for her welfare.
The applicant’s statement detailed her physical and mental decline following these events.
On 1 October 2019 the applicant received an email from a Mr Jacob Rex, an investigator. The applicant understands that investigators are to notify persons being investigated every three months. She did not receive any contact for 12 months.
On 18 October 2019 the New South Wales Department of Education Assets Branch forwarded a document regarding procedures to follow with soil fill to all Sutherland Shire principals. The applicant had never received any correspondence regarding soil fill procedures before this date. Her only previous training involved asbestos in classrooms becoming airborne. Nothing to do with soil.
On 14 February 2020 the applicant was informed that her workers compensation claim had been declined.
The applicant sought a return to work in a placement out of the public eye. She felt unable to work in the alternative location allocated to her at Bankstown Senior College. She was provided with alternate duties at St Peter’s Education Office on a gradual return to work plan. This was not successful, although the applicant persevered. She was not provided with meaningful work.
On 20 October 2020 at the request of the Department the applicant attended an appointment with a Department of Education officer who handed her a letter of allegation which accused her of conduct which may amount to misconduct because she had failed to inform Assets of soil being deposited at Lucas Heights.
On 2 November 2020 the applicant submitted her response to the letter of allegations. She provided evidence of the historical practices of the previous principal Mr Hayden; referred to the visits of the assets manager for Sutherland Shire who had visited the school frequently and raised no concerns regarding contractors, soil deposits or concerns for student and staff regarding asbestos; pointed out that she had not been the principal at the time the practices were implemented; and pointed out that Mr Mitchell and Mr Freney, general assistant, had not informed her of the key policy and procedures.
On 25 March 2021 the applicant attended St Peter’s District Office and was provided with a letter which, after raising various issues including her previous employment record and her contrition, advised that she would be demoted to a head teacher position.
The applicant never took up an appointment as a classroom teacher.
On 6 December 2022 the applicant was medically retired from her employment with the respondent.
Associate Professor Robertson, Independent Medical Examiner (IME) for the applicant provided the following opinion[2]:
“Based upon the history provided, a prolonged EPAC investigation, placing Ms Gooden in a circumstance in which reputation would have been traduced and subject to unreasonable delay in resolution in addition to being compelled to demeaning duties (albeit refused and alternate duties found) was the substantial main contributing factor to her psychological injury.”
and
“Ms Gooden could return to employment via a graded return to work program to school principal duties in a different work site subject to the investigation being resolved in a reasonable time frame.”
[2] ARD page 52.
The respondent’s evidence
Dr Chowdary IME for the respondent provided the following opinion:[3]
“On balance, as mentioned above, it was the disciplinary action taken by the Department, after they found out the landfill contained asbestos on the school site, and the subsequent investigation which led to the finding of misconduct and the demotion that contributed towards her anxiety and depressive-based symptoms. On that basis, I believe the investigative process initiated by the Department was the predominant cause of the psychological disorder.”
[3] Reply page 34.
The respondent relied on the documents provided in its Reply.
The applicant’s submissions
The applicant’s primary submission processes undertaken to investigate the applicant’s alleged misconduct were not reasonable as required to support a defence pursuant to s 11A.
Mr Hayden was the principal of Lucas Heights before April 2016. The applicant was principal from April 2016 until 14 April 2019 at which time she undertook a temporary role at Head Office as Chief Education Officer. Ms Perkins acted as relieving principal from 29 April 2019.
A relieving principal is responsible for the daily operation of a school in the same manner as a permanently appointed principal. There is no difference in the role responsibilities between a principal and an acting principal.
At the time Ms French telephoned the applicant on 2 August 2019 to advise her regarding the issue of “dirty” soil, and in her further telephone call on 6 August 2019, Ms French would have been aware that the applicant bore no responsibility for what occurred at school.
In her correspondence to Ms French, the applicant advised that she did not know permission was required for what Mr Mitchell did and that she should have advised him to stop. She apologised for not doing so.
The notice of suspension contained a reference to the applicant’s “substantive position as Principal”. The period was not defined. It was unfair to the applicant not to define the period during which the alleged breaches occurred. The applicant perceives that she was being made the scapegoat for material that was dumped at the school when Ms Perkins was in charge. This perception arose from the carelessly ambiguous wording of the suspension notice.
The demotion of the applicant to a school within the immediate radius of Lucas Heights caused the applicant to feel that she was exposed to public ridicule, humiliation and belittlement.
It is not challenged that Ms Robinson told the applicant on 3 September 2019 that “They want you gone Janice”.
Ms Robinson should have ensured that the applicant had a support person present at the meeting with the applicant.
Suggested appointment to Bankstown College as a classroom teacher was not reasonable. This was challenged by the service of Ms Catrina Bhangwanna’s clinical notes[4] which confirmed that the workplace assignment process was a risk to the applicant’s mental health.
[4] 11 November 2019 ARD page 123.
The manner in which the meeting with Ms Robinson was conducted and the inappropriate transfer were significant issues in the injury sustained by the applicant.
The restriction placed on the persons with whom she could discuss the issue under investigation were unfair and not reasonable. The investigation took years, well in excess of the time frame originally anticipated. Even had the investigation taken place within the anticipated three to nine months the restriction would have been unfair and not reasonable. The ban imposed by the respondent was too broad and prevented her from preparing a defence or strategy to the allegations while the respondent had unrestricted access to any number of witnesses including detailed discussions with the Department and other authorities. The respondent made no attempt beforehand or at the conciliation/arbitration to justify the ban.
The applicant’s counsel made particular submissions regarding the investigation. In summary these are:
(a) the investigator took a month to respond to the applicant’s initial attempt to contact him. No justification for the delay has been provided. This added to the applicant’s feeling of isolation and mental distress. No explanations have been provided.
(b) The letter of allegations took 13 months after the suspension notice was provided. No explanation has been provided except for “recent consultation with the New South Wales Environment and Protection Authority”.
(c) Despite Ms Fienne’s acknowledgement of the distress the length of the investigation caused it still took a further 12 months for the outcome to be delivered. No explanation for this delay has been provided.
(d) The allegation inaccurately alleged that the applicant was responsible for the fill which contained asbestos and had to be remediated. Those allegations and findings are unsubstantiated. The fill supplied during the period the applicant was principal ended on 14 April 2019 was clean fill. There is no evidence that any fill was delivered to Lucas Heights between April 2016 and 16 April 2019 when the applicant was principal was contaminated. If there was such evidence it was not provided to the applicant.
(e) The Investigators finding that fill materials continued to be deposited with the direct knowledge of Ms Gooden until August 2019 cannot be substantiated and the investigator ought to have known that. Ms Gooden did not work at Lucas Heights after April 2019
The respondent’s submissions
The respondent acknowledged that it bore the onus on establishing its defence pursuant to s 11A.
The respondent’s counsel traversed the facts to demonstrate the respondent’s reasonable action.
The respondent’s counsel characterised the actions of the respondent as imperfect but reasonable. She submitted that it’s compliance with minimum procedural fairness requirements such as written notice, an opportunity to be heard, payment of salary whilst suspended and an opportunity to respond was not flawless but overall it was reasonable. The requirement for reasonable conduct was an objective test, balancing the rights of the parties. Balancing the needs of the applicant against the business requirements of the respondent.
CONSIDERATION
I have summarised below the established relevant jurisprudence of this Tribunal as I understand it is:
(a) The onus is on the respondent to establish a defence pursuant to s 11(A) of the 1987 Act.[5]
(b) The words reasonable action should be given a broad construction.[6]
(c) The question of reasonableness is a matter to be determined in all the circumstances of the case. It is an objective test, weighing the rights of the employer against the objects of the employment.[7]
(d) The consequences of the respondent’s actions must be considered against the reasons given for it.[8]
(e) Consideration also needs to be given to the manner by which events were implemented.[9]
(f) Reasonableness is judged having regard to the fairness appropriate in the circumstances, including what went before or after a particular action.[10]
(g) If there has been disciplinary action it is necessary, when considering the reasonableness of that action, to have regard to all relevant circumstances, including the seriousness of the conduct that has led to the disciplinary action, the nature of the employer’s business, and the worker’s position in that business.[11]
(h) When considering s 11(A) the question of causation must be addressed by medical evidence. This will depend on all the circumstances of the case. There may be numerous factors contributing to causation of the injury to the applicant and medical evidence is necessary to establish the causation of a psychological injury.[12]
(i) When determining whether the applicant’s medical condition was caused by the respondent’s reasonable actions, as identified in s 11(A), the question of wholly causative or predominantly causative must be considered separately. It must be one or the other.[13]
[5] Pirie v Franklins Ltd [2001] NSWCC 167.
[6] Foster AJA (Sheller and Santow JJA agreeing) Commissioner of Police v Minahan [2003] NSWCA 239; 1 DDCR 57.
[7] Geraghty J Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998.
[8] Armitage J Ritchie v Department of Community Services [1998] 16 NSWCCR 727.
[9] Truss CCJ Ivanisevic v Laudet Pty Ltd unreported, 24 November 1998.
[10] Burke J Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454.
[11] Bottle v WeilandConsumablesPty Ltd [1999] NSWCC 135, Roche DP Baldwin v Greater Building Society Ltd [2011] NSWWCCPD 18.
[12] Snell ADP Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130.
[13] Snell ADP Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130.
The investigation conclusion contained the following paragraph:
“There is no evidence that Ms Gooden knowingly allowed contaminated material to be deposited on the school site, however her inaction, and negligence with regard to proper oversight, supervision and leadership has allowed the Department to assume considerable risk to property, which has resulted in extensive remediation valued at in excess of $10 million action being required, and more significantly has put the health and safety of staff, students and the community at considerable risk.”
(my emphasis)
Neither the conclusion set out in the preceding paragraph, nor the severity of the penalty imposed as a result can be sustained.
However, determining the correctness of the conclusions drawn by the investigator and the respondent’s delegate is not the task before the Commission. The Commission has to consider whether 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 the applicant. In this case transfer, discipline and demotion.
I have set out hereunder a list of the circumstances in which I am satisfied and find that the respondent’s conduct was not reasonable.
(a) Having the applicant respond to questions from her replacement principal without full knowledge of what the circumstances were at Lucas Heights, and how those circumstances affected her, was procedurally unfair and not reasonable.
(b) Determining to transfer the applicant from Head Office, where she was performing a valuable role was not reasonable. Whatever conclusion might eventually have been reached as to whether the applicant had breached a policy concerning asset management, I am satisfied and find that that failing was not likely to have affected her performance in the role she was successfully performing at Head Office. I put this issue to counsel for the respondent.[14] There was no danger of re-occurrence or ongoing conduct in the ordering of fill. Counsel suggested that as this was a course for leadership and high-performance in principal roles, her failure might teach similar defective decision-making to other principals. I am not persuaded by this argument. The applicant was in all other respects a high performing employee in the role of a principal. No failure had then been established. She had informed the respondent that she was unaware of the policy. It had not been established that the applicant had ever been informed of the policy. The transfer was not reasonable.
(c) The method of the applicant’s removal from Head Office was harsh. It was mortifying and unkind. It was entirely unnecessary to remove the applicant and her possessions from the office in the fashion described by the applicant, whose evidence I accept. Any necessary conversation could have taken place away from the workplace or after hours. The method of her removal from Head Office exemplifies the respondent’s attitude towards the applicant which satisfied was not reasonable.
(d) The fact that no support person for this meeting had been arranged in advance was an extraordinary failing. An employee facing the kind of conflict and confrontation as the applicant was would inevitably require support. In 2019 this was a universally acknowledged industrial practice. It was not reasonable to confront the applicant concerning such critical issues without a support person.
(e) The most appalling failure in this sorry saga is the extraordinary period it took for the outcome to become known to the applicant. The explanations provided for this delay cannot be accepted. I put these issues to counsel for the respondent.[15] They are no excuse. There was a pandemic. So? Everybody was working during the pandemic under difficulty. It was universal. Also, apparently, some answer was required from a government environmental department concerning confirmation of possible asbestos contamination of the fill. Other witnesses had to be interviewed. Such enquiries and the respondent’s subsequent reliance on them is a distraction. The applicant’s alleged misconduct under investigation was a failure to follow a policy. It is alleged that fill was delivered without compliance with policy. The policy was known to the Department. Whether the applicant had followed the policy was a straightforward matter for investigation. There was no reason for delay. The matter was easily capable of prompt resolution. If there was a policy, it was clear that the applicant did not follow it, although is not clear that the applicant was ever advised of the policy. It was the breach of this asset management policy that was the core issue for resolution. Whether there was contamination in the fill was not relevant to the question of whether a breach occurred. The involvement of any other government department was entirely unnecessary in relation to this issue. I put this issue to the respondent’s counsel.[16] To excuse the respondent’s extraordinary delay by relying on the oft blamed pandemic and a delay in obtaining other statements and an unnecessary report from another government department is, to say the least, not reasonable.
[14] sound file 17.20.
[15] Sound file 23.00 to 25.00.
[16] Sound File 33.30 to 37.00.
The representatives of the respondent are of course obliged to put the respondent’s best case and did so.
I am satisfied and find that the material provided to this Commission in support of the respondent’s defence pursuant to s 11A cannot be accepted.
I have had cause to consider employer investigations over a number of years. I have rarely seen exhibited, if ever, such an egregious failure of fairness and process as was visited upon the applicant.
I am satisfied and find that nothing about the manner in which the applicant’s transfer, discipline and demotion took place separately, and together, could support a finding of reasonable action.
What the applicant endured from the time she was first contacted by Ms Priest until the findings were handed down years later is indefensible and it is easy to understand how the applicant found it to be unendurable.
SUMMARY
For the reasons set out above the Commission will make the findings and orders as set out on page 1 of the Certificate of Determination.
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