Govier v Unitingcare Community
[2017] HCATrans 183
[2017] HCATrans 183
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Brisbane No B12 of 2017
B e t w e e n -
TONI MAREE GOVIER
Applicant
and
UNITINGCARE COMMUNITY (ABN 28 728 322 186)
Respondent
Application for special leave to appeal
BELL J
KEANE J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY BY VIDEO LINK TO BRISBANE
ON FRIDAY, 15 SEPTEMBER 2017, AT 9.30 AM
Copyright in the High Court of Australia
MR K.C. FLEMING, QC: If the Court pleases, with me is MR W.D.P. CAMPBELL for the appellant. (instructed by Kevin Bradley Solicitor)
MR R.J. DOUGLAS: QC: If the Court pleases, I appear with my learned friend, MR R.C. MORTON, for the respondent. (instructed by McInnes Wilson Lawyers)
BELL J: Thank you, Mr Fleming. Mr Fleming, just as a preliminary matter, there is an unopposed application, I think, filed by the respondent to substitute the “Uniting Church in Australia Property Trust Q” in place of “Unitingcare Community” and I understand there is no opposition to the making of that order?
MR FLEMING: There is no opposition, your Honour, no.
BELL J: Yes, that order is made. Mr Fleming.
MR FLEMING: Thank you, your Honours. In our submission, the special leave question is whether or not the State of New South Wales v Paige (2004) 60 NSWLR 371 precludes the obligation of an employer from having a duty of care to an employee merely because the acts are done in the course of the workplace investigation. We say that is especially so when the employer itself is in control of the whole of the process in the investigation as distinct from a case like Paige that we will come to in a moment.
Your Honours, a very brief sketch of the facts. First, the correctness of Paige is not challenged but rather we challenge the application of Paige to everyday investigations. As to the facts, in the course of her employment with the respondent as a carer for disabled people, the applicant was attacked violently by a co‑worker at her workplace and suffered physical and psychiatric injuries. The attack was unprovoked and occurred on 3 December 2009.
Immediately after that incident the applicant phoned her supervisor and told him that she had been attacked by the co‑worker, she had called the police and she was going to hospital. The supervisor later heard her repeat that complaint to staff at the hospital and the supervisor was also told by the client that the co‑worker had hit the applicant.
The applicant claimed damages for negligence against the respondent employer for psychiatric injury consequent upon the attack but she failed in that claim because of a question of foreseeability and the respondent – on the basis that the respondent had no reason to think that the co‑worker was likely to attack the applicant.
The respondent had immediately commenced an investigation into the applicant’s conduct and on the same day as the attack on 3 December 2009 prepared and hand delivered to the applicant’s home a letter which her flatmate then took to her in hospital requiring her to attend an investigative interview on the following day to her conduct directing her not to discuss the incident with any other person and standing her down on full pay.
The applicant was still in hospital as a result of the attack. When the first letter was delivered, she was too ill to attend the meeting on the following day but the respondent pressured her again to attend a further meeting three days later on 7 December. Again, she was too ill to attend that meeting and she was provided with medical certificates which were given to the respondent. They certified her as totally incapacitated for work right up to 21 December.
On 18 December 2009, the applicant received a further letter from the respondent asserting that she had refused to attend the interviews on 3 and 8 December and that letter advised her that in the absence of any information from her, the respondent had made preliminary findings that she had kicked, hit and pushed the co‑worker and had been engaged in violent and inappropriate behaviour that had been witnessed by a client. Second, that her behaviour had damaged the employer/employee relationship to such an extent that her employment could not be continued and, third, gave her until 23 December to provide reasons why her employment would not be terminated. The applicant never did return to work and her employment was ultimately terminated.
As for the case, the applicant also claimed damages for the aggravation of her psychiatric injury. This is as distinct from those damages that she claimed for the assault which has been lost both at first instance and in the Court of Appeal and that those psychiatric injuries were caused by the timing, manner and content of the two letters which the trial judge found had aggravated her chronic, post‑traumatic and major depressive disorders and had she not received the letters her injuries would not have been so severe.
BELL J: Mr Fleming, in your application, you characterised the letters as merely careless communications which the respondent should have foreseen would be likely to injure her if she read them. I think you – it is put against you that you accepted that under the contract of employment the respondent was entitled to require an account from her about her conduct and to stand her down pending investigation. So, the matter I am raising with you is – to characterise it as no more than a case of the careless communication of material known to be distressing may not come to grips with some of the difficulties albeit one accepts we are not in the territory of a statutory obligation on the employer to conduct an investigation?
MR FLEMING: Yes, your Honour. We make the distinction between that statutory obligation in Paige and that which is in the control of the employer and we say specifically that the letters were found in fact to be insensitive and critical, that the risk of such an injury was reasonably foreseeable and that by the timing of delivering the content of the two letters, the respondent had failed to take reasonable care for the applicant’s psychiatric health. They were findings both at first instance and sustained by the Court of Appeal and it was the result of that that we say caused the psychiatric injury and, therefore, opened up her right to claim for the manner in ‑ ‑ ‑
EDELMAN J: Mr Fleming, is not the basic issue then the question of the extent to which the employer assumes responsibility for the conduct of the inquiry or the conduct of any investigation in relation to the employees?
MR FLEMING: Yes, your Honour, we accept that and we embrace it.
EDELMAN J: If that is so, was the contract an exhibit at trial and does not the terms of the contract assume some significant importance in the same way, for example, as in Brookfield v Owners of Corporation Strata Plan, the terms of a contract will assume importance in determining the content of an assumption of responsibility.
MR FLEMING: The answer to the first part of the question is no, the contract was not in evidence and in answer to the second part of the question, yes, it may but no more and no less than any other aspect of the employer’s and employee’s rights under that contract, for example, in respect of a safe system of work. If it is nothing more and nothing less than a further incident of employment that there can be investigative processes and if it was in the contract, that simply emphasises the point we make.
EDELMAN J: Well, if it was in the contract, there may be either an express or an implied contractual term as to the manner in which the investigation be carried out.
MR FLEMING: There may well have been, your Honour, but in our submission it will be in respect of every other aspect of the applicant’s employment, implied terms as well but, nevertheless, the duty of care in tort applies to those and we say it equally applies in these circumstances where it is simply an incident of employment perhaps contained in the contract and perhaps not but, nevertheless, simply an incident of the employment.
KEANE J: Well, except that depending on the terms of the contract it may be that what you have characterised as “careless correspondence” might even be described as something harsher but if the contract, as there seem to be some hints, may have authorised the employer to do, that is to say to press for answers in relation to what happened in this incident and whether it was your client or the other employee who was at fault because the employer has to make a decision as between them, it may be that the terms of the contract are critical and we do not have them before us.
MR FLEMING: That is so, your Honour, but your Honour we go back to the point that even if they were in the contract it would be an application, no more and no less, of the duty of care that would apply to every other term of the contract, namely the safe workplace and so on.
EDELMAN J: Except that the duty of care, whether it arises by contract or in torts, will have to be shaped by the terms of the contract. It could, for example, even be entirely excluded expressly or impliedly by the terms of the contract.
MR FLEMING: We accept that proposition. My learned junior who did the trial said that no contract was ever produced by the respondent in this case. Simply put at the end, your Honour ‑ ‑ ‑
KEANE J: You might also say in those circumstances that insofar as the case was decided against you on the footing that the duty you propound is inconsistent with a contractual entitlement in the employer to investigate as it sees fit - you might say that the onus was on them to raise such a term otherwise it is just – one is left with the terms that would be implied as a matter of implication.
MR FLEMING: Yes, indeed, we do say that, your Honour. So the court was left with perhaps the statutory modification of employment contracts, if there was a contract, and of course there must have been some sort of a contract for them to be working there but, nevertheless, it did not defeat the common law duty - the duty to take care in this, another incident, of employment. We do not cavil with the right of an employer to hold a hearing or an investigative process into behaviour. What we do say is that that by itself also attracts the duty of care to take care of the worker.
BELL J: But coming back to your proposition that this is a commonplace case of a negligent communication of distressing news, it might be that commonly one could foresee that informing an employee that they are to be stood down pending the determination of an investigation in which it is alleged they have assaulted a fellow employee might cause distress, might cause more than distress.
MR FLEMING: Yes.
BELL J: There is, putting to one side considerations of a Paige Case or Sullivan v Moody, there does nonetheless remain a difficult question of the intersection of the duty that you propose with a recognition of an employer’s rights that seem to have been accepted under the contract to conduct such an investigation.
MR FLEMING: Yes, we say two things to that. What your Honour said ‑ first, we embrace that because it overcomes any foreseeability issue but, second - I am sorry, your Honour, I lost the latter part of what your Honour was saying a moment ago.
BELL J: You, in your submissions, characterise it as, as it were, conventional application of principles involving the communication of distressing material in circumstances in which it is foreseen that the distress may be caused by the communication and I am just raising with you that even putting to one side consideration of a statutory power and recognising that this is an intersection between considerations under the tort law and the recognition that the employer was entitled to carry out an investigation in which necessarily it would be communicated to her that she was the subject of it and that she would be stood down pending its determination.
MR FLEMING: Your Honour, that intersection is why we are here because that is where the difficulty arises and that is where we ask the assistance of this Court in determining exactly where that intersection is. In a case ‑ ‑ ‑
EDELMAN J: Is there any reason why those difficult questions, absent coherence issues, could not be dealt with at the question of breach rather than the question of duty? In other words, the question of what it is that the employer should have done having regard to all of the circumstances and the context might not be a question that goes to whether the employer has a duty but it might go to a question of whether the employer is in breach of a duty.
MR FLEMING: I understand what your Honour is saying. It may, in fact, go to both in the end. We would submit that, for the reasons we have stated and without going to Paige - we distinguish Paige and say that the ratio in Paige is quite narrow and we invite this Court to look at the matter. Thank you, your Honours, they are our – I am sorry, your Honour?
BELL J: Mr Fleming, just one further matter. You also seek to challenge the proportion assessed by the trial judge. Why would we grant leave for that second ground?
MR FLEMING: We acknowledge that that would not be in normal circumstances a special leave point but it is ancillary to the first point and we would simply ask that your Honours look at it. It is not a large issue but it may well affect the outcome substantially. That is all we can say about that.
BELL J: Yes, thank you, Mr Fleming.
MR FLEMING: It is a simple application of Watts v Rake, your Honours.
BELL J: Thank you, Mr Fleming. Mr Douglas.
MR DOUGLAS: May it please the Court. The issue which the applicant seeks for this Court’s consideration is whether the employer’s duty of care for foreseeable psychiatric injury extended to investigation and decision‑making under the applicant’s contract of employment. In our submission, there are four flaws in the argument put on behalf of the applicant. I hope I am able to get through those in the time allocated. I will deal with them in appropriate order.
In our submission, first, the applicant’s argument disregards the law of contract with all its incidents bearing upon maintenance of employment including disciplinary investigation, as a candidate legal principle to conflict with the legal duty to exercise care. Now, as to this issue, this first issue, your Honours, several points. It is important, in our submission, for the purposes of special leave that the applicant does not seek to impugn the principle espoused by the New South Wales Court of Appeal in Paige’s Case but rather it seeks to…..the ratio in that case as one confined to a circumstance where the disciplinary regime in a particular case is governed comprehensively by statute.
Now, to the contrary, that is not, in our submission, the ratio in Paige. Certainly in Paige it was the case that there was a comprehensive disciplinary statute in existence which regulated the rights of the teacher/headmaster who was the plaintiff in Paige’s Case but the ratio of the case certainly did, in our submission, patently transcend that.
Your Honours as much appears in the extract of Paige that appears in the judgment of Justice Fraser at page 75 of the application book and if your Honours look there towards the base of the page, in the fifth last line, Chief Justice Spigelman starts with the words “Where, as here” and I will not read the first sentence but the Chief Justice goes on:
Matters concerning the creation and termination of a contract of employment can, in my opinion, properly be left to the law of contract, subject to the extensive statutory modification that the parliaments have introduced ‑ ‑ ‑
EDELMAN J: That begs the question, Mr Douglas, as to really what is the scope of the law of contract? What we are dealing with when we are talking about assumed responsibilities in the law of torts, the roots of that were identical to the roots of the assumed responsibilities in the law of contract which is why, I think, Mr Fleming accepted that terms of the contract may affect the terms of the tortious assumption of responsibility.
MR DOUGLAS: Undoubtedly, it is the case, and a number of decisions of this Court have established that the terms of the contract do have a bearing upon the metes and bounds of the duty of care. But we in fact embrace, Justice Edelman, that particular matter in relation to the argument in this particular case. There needs to be, to adopt the language of the courts, a necessary coherency between the operation of the various elements of the obligations which are owed in contract, in tort and sometimes in both.
Undoubtedly, it is the case that when it comes to the system obligation, the duty to provide a safe system of work, that has its foundation in each of contract and in tort favouring an employee vis à vis an employer but there are distinct obligations, we submit, which arise in relation to matters of employment maintenance – we call it maintenance as Chief Justice Spigelman says, whether in respect of the creation or the termination of the employment relationship augmented as they are in every State and federally by statutory modification.
EDELMAN J: The statutory modification in Paige is quite different from that that arises in the circumstances of this case. If one is asking what the assumption of responsibility is, Chief Justice Spigelman is saying you cannot ignore all of the statutory circumstances and the content to which the assumption is said to have between the teacher – the head teacher and the other teachers.
MR DOUGLAS: Undoubtedly does and the other members of the court agree. The Chief Justice did that, Justice Edelman, by reference to the decision of the – I think it was the House of Lords rather than the Supreme Court, in Johnson v Unisys, but his Honour makes it absolutely plain – the Chief Justice makes it absolutely plain in his judgment when dealing with that relevant paragraph which is extracted in the application book to which we took you a short time ago, he actually goes on in his judgment to say under - in the very next paragraph under a heading “Coherence: administrative Law”, a very short paragraph, paragraph 156 the Chief Justice says:
In the present case an issue also arises as to coherence with administrative law.
In our submission, it was a matter of critical importance in that case too that there was an additional reason for his Honour’s determination and that is that having regard to the statutory provisions that did exist there are also administrative law rights which were enjoyed by the parties to the litigation but that did not derogate, in our submission, from the fact that his Honour concluded the matter by reference - that is excluding or limiting the duty content by reference to the contract in question.
As it was conceded and the courts observe this and I do not want to labour the point, it was conceded by our learned friends before the Court of Appeal that under the contract, under the contract, there were rights which were enjoyed by the employer to seek out information in relation to the resolution of the conflict to which Justice Keane referred in the course of argument a short time ago. Your Honours, if we can go on to our – if we may ‑ ‑ ‑
KEANE J: Mr Douglas, may I just ask, was that because it was accepted that there were - these provisions regarding the employer’s entitlements were regarded as implied as opposed to express provisions of the kind that were being discussed in Paige?
MR DOUGLAS: Your Honour, as we understand it, the answer to that is yes. In response to our learned friend’s exchange with the Court in this regard, there was no contract of employment placed before the court. It was accepted that those rights arose under the contract. I cannot point to – I cannot recall anything in the record which identified those, Justice Keane, as being express or implied. I feel comfortable though in saying that they were implied.
KEANE J: So why then is there not force in Mr Fleming’s point that Paige is distinguishable because it was a case, as is apparent from the passage that you read to us, where the contract imported these statutory provisions in order to give content to the contractual obligations whereas here the content of any contractual entitlement in your client is to be implied.
MR DOUGLAS: Justice Keane, that – and, with respect, I will answer the question directly but it segues to our second point because – the second flaw, as we identified because in this particular case there was not just the contract of employment with its terms as has been identified in argument but there were, in fact, and did I say “unsurprisingly” – there were, in fact, statutory obligations which bound the parties. Although they are not referred to in the judgment in the Court of Appeal they were referred to by the learned primary judge, Judge Andrews, at page 41of the application book, paragraph [187] – the words at the top of the page, the paragraph commencing “Paige was not concerned”.
So, your Honours, contrary to the assumption that was made or is made by our learned friends in their special leave outline and, with respect, Justice Keane, contrary to the assumption that perhaps underlies your question, it was not just the contract, but as in Paige, pertinent here was the fact that there were provisions, again, unsurprisingly, which were contained in the then Industrial Relations Act 1999 - it has since been repealed and replaced in 2016.
EDELMAN J: That is broadly making a similar point to the point that Lord Hoffmann made in Johnson v Unisys that Chief Justice Spigelman quoted. Why is that not a point of very significant importance?
MR DOUGLAS: Justice Edelman, if I have understood your question, it is a matter of importance but it is a matter of importance in favour of the – I should say contrary to the argument which our learned friends put because as in Paige there were pertinent, in this case, not just the provision referred to in section 83 of the Industrial Relations Act which the trial judge refers but, again, there was contained in the Industrial Relations Act, as with every other Act relevant at the time throughout Australia, extensive provisions in relation to dismissal and reinstatement.
So, in fact, there did exist pertinent to this case a host or raft of statutory provisions which modified the rights of the parties under the contract of employment. It is no different, in our submission, than was the position in Paige and the assumption to the contrary that our learned friends argue and make is just quite wrong.
Your Honours, the third issue we seek to raise as a flaw in the argument for the applicant is this and perhaps it embraces the first two points in one sense. In our submission, contrary to the applicant’s submission the gravamen of the decision below is simply this, that the contractual rights of the employer bearing on the maintenance of employment, including disciplinary investigation, does not defer to the foreseeable risk of psychiatric injury of an employee arising out of those rights.
This is an important point for these reasons, in our respectful submission, and I will make them within the time, if I may. On that characterisation, in effect, the applicant would have it that the legal rights and obligations of the employment contract can be subject to some moratorium perhaps, if not displacement by the duty of care content.
Now, no attempt is made in the applicant’s argument, even at this stage of special leave, to identify the coherence or the temporal or other metes or bounds of any such moratorium or displacement. I mean temporally, is the moratorium in the case of a person with manifest psychiatric symptoms or vulnerability to be indefinite? Is it to last until medical opinion is afforded saying that they are in a proper position to respond to a request for information?
How is it, we submit, we pose rhetorically, is there to be accommodated what the presiding Judge Justice Bell indicated in terms of the Bunyan v Jordan scenario. It is not a person who is being imparted distressing information idly as in Bunyan v Jordan to surprise them as a joke, or something of that character. This is a formal matter which entails a necessary inquiry, accepted by our learned friends as an incident of the contract, for the purposes of carrying out an investigation in the course of the respondent’s business.
Also, as part of that, there is no accommodation in the argument put forward to the special leave point as to how the various interests either be both personal and economic are to be accommodated. Those interests are manifest in this case. They are the interests of the other employees. In this case, the employee MD, who it seems acted nefariously in this particular case but the employer was not to know that in the days and weeks after the event -she had not given a contrary version. They are the economic interests or the personal interests of the client of the respondent, this woman identified as “Tara” in terms of the continued provision of services by appropriate personnel.
Finally, there needed to be accommodated the interests of the respondent employer itself in terms of conducting its business both at a personal and economic level. None of those matters are accommodated by the argument which, in our submission, is put forward on behalf of the applicant for disposition by this Court upon a full appeal. In our submission, those are matters which go to the heart of the expansion of the – or I should say, the foundation of the duty which is alleged.
The final point we want to raise, your Honours, I said there were four points and that is this. Our learned friends in their outline contend that so‑called duty in respect of performance of employment in the conventional sense, embracing obligation to provide support for an employee who is undergoing disciplinary action or investigation, is inconsistent with the deprivation or should I say denial of a duty of the kind for which the applicant contends.
In our submission, the issues are quite distinct. The distinction is carefully addressed by the Court of Appeal in Hayes’ Case. It is one thing
to investigate someone and ask questions of them, it is quite another to accommodate them in terms of the operation of the business and their role in the business while the investigation is going on. That is a matter quite distinct from the circumstances here. Your Honours, those are our submissions in respect of the special leave application, unless we can assist you with something further. Thank you.
BELL J: Thank you, Mr Douglas. Mr Fleming, anything in reply?
MR FLEMING: Very, very quickly, your Honours, thank you. Paige makes it clear - and it is not in contest - that compatibility and coherence are important considerations. The point we make is that there never has been discussion about that outside of the very stringent statutory regime that applied to Paige and we would ask therefore that the matter now be discussed in this Court.
KEANE J: Mr Fleming, before you sit down, what do you say to Mr Douglas’s point that the duty for which you contend is inconsistent with his client’s entitlement to have ongoing trust and confidence in your client?
MR FLEMING: Your Honour, that applies to every aspect of the employee’s employment. It needs to have trust and confidence in everything that the person does and yet the duty can still apply – sorry, the tortious duty can still apply to that and ought to apply to that.
BELL J: Thank you, Mr Fleming.
MR FLEMING: Thank you, your Honours.
BELL J: Yes, the Court will adjourn to consider the future conduct of the application.
AT 10.08 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.10 AM:
BELL J: There will be a grant of special leave in this matter. The grant is confined to the first ground of the application and the parties are asked to obtain directions respecting the filing of submissions from the Registry and to bear in mind the need for strict compliance with them.
The Court will now adjourn to reconstitute.
AT 10.10 THE MATTER WAS ADJOURNED
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