Greater Southern Area Health Service v Walsh - [2010] NSWWCCPD 98

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		The Greater Southern Area Health Service v Walsh [2010] NSWWCCPD 98
APPELLANT:		The Greater Southern Area Health Service
RESPONDENT:		Claire Jennifer Walsh
INSURER:		Employers Mutual Limited – TMF
FILE NUMBER:		A1-10481-09
ARBITRATOR:	Mr J Ireland
DATE OF ARBITRATOR’S DECISION:		3 May 2010
DATE OF APPEAL DECISION:		14 September 2010
SUBJECT MATTER OF DECISION:		Section 11A of the Workers Compensation Act 1987; injury wholly or predominantly caused by unreasonable action.
PRESIDENTIAL MEMBER:		Deputy President O’Grady
HEARING:		On the papers
REPRESENTATION:		Appellant:	Rankin Nathan Lawyers
Respondent:		McCabe Partners Lawyers
ORDERS MADE ON APPEAL:		Paragraph 1 of the Arbitrator’s determination dated 3 May 2010 is revoked and, in its place, the following order is made:
“1. The respondent is to pay the applicant weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 as follows: $396.10 from 14 December 2009 to 31 March 2010, and $403.70 from 1 April 2010 to date and continuing, such weekly payments to be adjusted in accordance with indexed amounts as prescribed from time to time.” The parties are to have liberty to apply with respect to any application which may arise by reason of payments made to the applicant prior to 14 December 2009. Paragraphs 2, 3 and 4 of the Arbitrator’s Certificate of Determination dated 3 May 2010 are confirmed. The appellant is to pay the worker’s costs of the appeal.

BACKGROUND TO THE APPEAL

Ms Claire Walsh, who is presently 57 years of age, commenced her career in health care in January 1970 when employed as an assistant in nursing at the Finley Hospital in Rural New South Wales. Ms Walsh completed her training and qualified as an Enrolled Nurse in July 1971. She has been registered as an Enrolled Nurse with the NSW Nurses Registration Board since that time. Ms Walsh pursued her career taking up positions as an Enrolled Nurse at various hospitals in rural New South Wales and in the Australian Capital Territory. She has worked on a continuous basis, excluding a period of five years following the birth of her son in 1980, until 25 March 2009.
Ms Walsh commenced employment with the Greater Southern Area Health Service (the appellant) in 2003 as a casual employee and held the position of Enrolled Nurse working at both Young District Hospital and Murrumburrah-Harden District Hospital (Murrumburrah). At one time Ms Walsh also performed duties for the respondent at Wagga Wagga Base hospital.
Ms Walsh first performed duties at Murrumburrah in approximately December 2003 at which time she was rostered to work at that establishment’s Aged Care Unit. It appears that Ms Walsh worked at both Young Hospital and Murrumburra thereafter. That casual position was held until December 2007 at which time Ms Walsh was engaged on a permanent basis performing part-time work being a minimum of 20 hours per week. Ms Walsh continued at Murrumburrah working with the aged patients. In approximately April 2008 she experienced a degree of conflict with certain fellow staff members. At about that time a number of allegations were made against her concerning her conduct in managing patients resident at the Aged Care Unit. An investigation of those allegations was initiated by the appellant. It seems that during the conduct of the investigation Ms Walsh experienced symptoms of depression and sought treatment from her general practitioner Dr Paul Sevier. Ms Walsh was absent on sick leave for a period of three weeks from approximately May 2008 by reason of her mental state. In late June 2008 the appellant informed Ms Walsh that the investigation had been completed and that consideration was being given to the commencement of disciplinary action.
The appellant had arranged for Dr Saboisky, psychiatrist, to examine Ms Walsh and to report to it concerning her mental state and fitness to perform duties. That examination occurred on 7 July 2008 and Dr Saboisky reported to the respondent by letter dated 9 July 2008. At that time Dr Saboisky expressed the view that Ms Walsh suffered from a major depressive disorder. Dr Saboisky had been informed by the respondent prior to the consultation that Ms Walsh was at that time “subject to a disciplinary process that involves a Performance Management Plan to address her work related behaviour”. That information was conveyed to Dr Saboisky by letter dated 10 June 2008. Dr Saboisky recorded that Ms Walsh denied all the allegations and had suggested during the consultation that no grounds had been found upon which she was to be disciplined.
Dr Saboisky’s advice found in his report was that “if there is going to be any disciplinary action then I think it would be wise at this point to wait until she is more psychologically robust”. On the evidence it is uncertain whether Dr Saboisky’s advice was heeded by the respondent.
Ms Walsh continued performing her duties at Murrumburrah however experienced a degree of conflict with a co-worker, Registered Nurse Zonia Argue. That conflict gave rise to feelings of stress and anxiety and Ms Walsh wrote a letter of complaint to her superior on 29 December 2008 in which Ms Argue’s conduct was described as “bullying and harassment”. Ms Walsh forwarded a second letter of complaint concerning the conduct of Ms Argue on 5 January 2009 to her superior, Nurse Unit Manager Kerry Menz. Ms Walsh continued performing her duties until she consulted Dr Sevier on 29 January 2009 at which time a diagnosis of work related anxiety and depression was made. Ms Walsh was certified as unfit for work and was absent from her duties for a period of three weeks during which time she was paid workers compensation benefits.
A Return To Work program was put in place following Ms Walsh’s return to work on 23 February 2009. That program was completed by her on 24 March 2009. On the following day Ms Walsh was informed by Ms Belinda Downey, Nurse Manager Health Service, that a complaint had been made against her by a resident of the nursing home and that there was a need for an investigation. On 26 March 2009 Ms Walsh’s duties were suspended with pay by the appellant.
Ms Walsh has not returned to her duties since she was stood down. She experienced a significant deterioration of her mental state in April 2009 which led to her admission to Calvary Hospital Canberra where she remained for a period of five weeks as an inpatient. The investigation foreshadowed by Ms Downey took its course and escalated within a very short period to an investigation of 10 allegations of inappropriate conduct on the part of Ms Walsh. By letter dated 31 July 2009 the respondent informed Ms Walsh of the outcome of the investigation and provided a copy of the investigation report. That report had been compiled by Ms Downey and Mr Stephen Crook, Area Human Resources. That report confirmed that a number of the allegations had been “substantiated”. Recommendations contained in the report included that Ms Walsh be advised that termination of her employment was to be considered. The covering letter signed by Ms Downey included advice that the appellant was “considering termination” of her employment. A response was required by Ms Walsh within 14 days “as to why this action should not be taken”.
In August 2009 Ms Walsh claimed workers compensation benefits against the appellant and its insurer. That claim was declined by the insurer and notice was given of the grounds upon which liability was denied. That notice, given in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) stated that, whilst Ms Walsh did receive a psychological injury as alleged by her, such injury was not compensable by reason that it was wholly or predominately caused by “reasonable actions” (sic) taken by her employer in respect of performance appraisal and/or discipline.
The dispute concerning Ms Walsh’s entitlement to benefits led to the registration of an Application to Resolve a Dispute with the Commission on 24 December 2009. That application came on for conciliation/arbitration before an Arbitrator on 7 April 2010. The Arbitrator reserved his decision and a Certificate of Determination was issued on 3 May 2010.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 3 May 2010 records the Arbitrator’s orders as follows:
“The Commission determines:
1.   There will be an award for the Applicant in respect of the claim for weekly compensation as and from 14 December 2009 at the rate of $765.50 and at the expiration of the statutory period of twenty six (26) weeks the maximum statutory rate for a single worker without dependants adjusted in accord with the Act.
2.   The Respondent to meet the Applicant’s reasonable and necessarily incurred Section 60 expenses.
3.   The Applicant to be referred to an Approved Medical Specialist to determine the degree of Whole Person Impairment arising from the psychological injury the deemed date of injury being 18 August 2009. The documents to accompany the referral being those alluded to at paragraph 5 hereof.
4.   The Respondent to pay the Applicant’s costs as agreed or assessed and having regard for the parties’ submissions on complexity I certify an uplift of 15% payable to both 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 lodged by the appellant with the registry on 31 May 2010.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(i)failing to give sufficient reasons for his conclusions of fact, and
(ii) failing to find that a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act) had been made out.
The issues as above summarised are taken from the appellant’s submissions which accompany its application filed with respect to this Appeal.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act provides:

“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

LEAVE

There is no dispute between the parties concerning the threshold requirements as prescribed by s 352 of the 1998 Act.

In the circumstances, and having regard to the matters raised in submissions, I conclude that it is appropriate that leave be granted to proceed with the Appeal and I so order.

PRELIMINARY MATTER

At the hearing before the Arbitrator counsel appearing on behalf of Ms Walsh made application to amend those particulars which appeared at Part 4 of the Application to Resolve a Dispute. Those proposed amendments are recorded in the transcript (T) of the proceedings which has been produced and made available to the parties. It appears that the Arbitrator, at the time leave was granted to make those amendments, made certain hand written alterations to the particulars that appear in the application.
There appeared to be some inconsistency between the matters recorded in writing by the Arbitrator and those matters which had been recorded in the transcript. In the circumstances a teleconference was arranged and conducted on 1 September 2010. Agreement was reached between the parties during that teleconference that the date of injury as particularised at Part 4 should read – “in or about March and April 2009”. An appropriate amendment of the application was made following that agreement.
The quantum of the weekly benefits as claimed by Ms Walsh was clarified during the course of that teleconference and particular attention was given to the relevance of the provisions of s 36 of the 1987 Act. This matter is more fully addressed below.

EVIDENCE

The documentary evidence before the Arbitrator was described at [5] of his Statement of Reasons for Decision (Reasons). It must be noted that, whilst the Arbitrator stated that all documentation attached to the Application was before him in evidence, counsel appearing for Ms Walsh sought to withdraw that material found between the pages 49 and 99 inclusive. Those documents comprised a statement by Jennifer Louise Wilcox and two reports by Dr J Parmegiani. Those documents, by consent, were excluded by order of the Arbitrator at the hearing. No oral evidence was adduced at the hearing.

Ms Walsh’s evidence

Ms Walsh relied upon a statement made by her on 29 October 2009. She is a married woman and has one adult child. She completed her nursing training in July 1971 and qualified as an Enrolled Nurse. Ms Walsh has worked constantly since, with one break of five years following the birth of her son in 1980. She commenced employment as a casual employee with the appellant in 2003. At the time Ms Walsh performed her first shift at Murrumburrah in the Aged Care Unit she had not been given any orientation nor history of the residents in the unit. Her roster was between 9:15pm to 7:15am. For the first five hours Ms Walsh worked alone without any assistance. She had 20 elderly people in her care at that time. Her duties were performed at both Murrumburra and Young Hospital.
In December 2007 Ms Walsh was employed on a permanent basis performing part-time work being not less than 40 hours per fortnight. In approximately May 2008 Ms Walsh took three weeks sick leave by reason of work related stress which had caused depression. There had been complaints made by other staff members concerning her conduct in the work place. The appellant arranged for Dr Saboiwsky to conduct an examination and provide a report as to her condition. Ms Walsh states that Dr Soboiwsky advised her that she should return to work and have regular meetings each week with the Nurse Manager (Ms Downey) with a view to talking through work situations. Upon her return to work at Murrumburrah Ms Walsh had but one meeting with Ms Downey. Whilst it is suggested in the evidence that Ms Walsh had been removed from night duty for a period of three months, it seems that no disciplinary action was taken in relation to the reports concerning her conduct.
In the latter half of 2008 Ms Walsh experienced personal conflict which involved a Registered Nurse by the name of Ms Argue. In December 2008 she reported Ms Argue’s conduct, which was described as being harassing and bullying, to the Nurse Unit Manager, Ms Menz. Ms Walsh stated that Ms Argue’s conduct continued to cause her discomfort and anxiety into January 2009. Ms Walsh again made a written complaint to Ms Menz concerning Ms Argue’s conduct. Throughout January 2009 Ms Walsh felt stressed and suffered anxiety however managed to continue working. Because of her condition Ms Walsh consulted her general practitioner Dr Sevier who certified that she was unable to work for period of three weeks. A claim was made with respect to workers compensation benefits which was accepted by the appellant.
Ms Walsh returned to work on 23 February 2009 and performed suitable duties which, it seems, were part of a Return to Work program devised by the appellant. That program was successfully completed on 24 March 2009 following which Ms Walsh received notice that a complaint had been made concerning her conduct. First notice had been received from Ms Downey when, on 25 March 2009, it was stated by her that “there had been a complaint made against [Ms Walsh] by a resident of the nursing home and there would have to be an investigation”. Correspondence dated 26 March 2009, received by Ms Walsh on 30 March 2009, confirmed conduct of an investigation into an incident which was numbered “637435-20”, and that she had been stood down from duty with pay.
On 15 April 2009 Ms Walsh received an email from Ms Downey informing her that further allegations concerning her conduct were to be investigated.
The balance of Ms Walsh’s statement addresses documentation which outlines the formalities concerning management of disciplinary action and contains comments on extracts of statements made by staff members who had been interviewed concerning the complaint. The statement notes that Ms Downey conducted the fact finding process and it is stated that Ms Walsh did not consider Ms Downey to be “unbiased and/or disinterested in the outcome of the disciplinary process”. That observation was based upon content of the literature which is in evidence concerning conduct of investigations and disciplinary processes.
Ms Walsh’s statement also addresses the evidence considered in the course of the investigation and the conclusions reached. It is not proposed to attempt a summary of those matters however, where relevant, reference is made to those factual matters below.
It is convenient at this point to note that there was attached to the appellant’s Reply an unsigned copy of a statement made by Ms Walsh on 30 September 2009. Objection was initially taken to the admission of that document however that objection was withdrawn. As observed by counsel appearing on behalf of the appellant before the Arbitrator, that statement appears to be “a rather more precise record of events” than appears in evidence elsewhere. That statement includes detail of a communication between Ms Downey and Ms Walsh on 13 April 2009 at which time Ms Walsh was informed that the investigation had been completed. It is also recorded in that statement that on 15 April 2009 Ms Walsh received an email that informed her that there were “now 10 allegations against [her]”. That email gave notification of an interview that Ms Walsh “had to attend”.
Following receipt of the email Ms Walsh states that she “just broke down”. She sought medical attention and consulted a psychiatrist in Goulburn. That practitioner arranged for her admission to a psychiatric unit at Calvary Hospital in Canberra where she remained for a period of five weeks. Ms Walsh was interviewed for the purposes of the investigation whilst an inpatient at that hospital.
Ms Walsh received notice on 8 August 2009 of the results of the investigation. At that time she was informed that eight of the 10 allegations had been “substantiated”.
Ms Walsh relied upon a number of documents including copies of her own correspondence to management concerning alleged bullying and harassment experienced by her in late 2008. These documents are not directly relevant to the issues raised on this Appeal.
A copy of the correspondence forwarded to Ms Walsh by the appellant’s insurer giving notice pursuant to s 74 of the 1998 Act is attached to the application. As noted at [9] reliance was placed upon the provisions of s 11A of the 1987 Act. That correspondence included an acknowledgment by the insurer that Ms Walsh had received psychological injury in the course of her employment in terms of s 4 of that Act.
A copy of a circular which is headed “A Framework for Managing the Disciplinary Process” dated February 2005 issued by NSW Health Department is in evidence. That document, where relevant, is referred to below.
A copy of correspondence from the appellant to Ms Walsh dated 26 March 2009 is in evidence. That letter informed Ms Walsh of the following matters:
“This is to provide you with formal advice of an allegation of “rough handling” made against you by a resident of Murrumburrah-Harden District Hospital.
The Greater Southern Area Health Service (GSAHS) received a verbal complaint from a resident alleging that you used “rough handling” of him during a transfer from his bed to a chair resulting in a bruise on his right arm. I understand the allegation was made known to you by Facility Manager, Ms Belinda Downey on 25 March 2009.
In accordance with NSW Health Policy Directive 2006_007 Management of a Complaint or Concern About a Clinician this matter will be the subject of an investigation. You are advised that you will be stood down from duty with pay until the completion of this investigation.
The GSAHS Policy Identifying, Reporting and Responding to Allegations of Assault in GSAHS Residential Aged Care, January 2008 also requires that this matter be reported to the Department of Health and Ageing and the NSW Police.
I further advise that your name will be added to the Service Check Register in accordance with NSW Health Policy Directive 2009_004. A copy of this policy is attached for your reference.”

A copy of Policy Directive, dated 26 March 2009, made by NSW Health Services confirming that Ms Walsh’s employment had been suspended with pay is in evidence. That record was, as stated at [2] of the document, “based on a serious disciplinary matter”.
Correspondence from Nurse Manager Ms Belinda Downey to Ms Walsh dated 15 April 2009 is in evidence. That document contained advice that Ms Downey was undertaking an investigation “into an allegation of using unreasonable force on Mr Ken Wenden, a resident at Murrumburrah-Harden Hospital.” The terms of the allegation are particularised in the correspondence and detail is, where relevant, addressed below.
A type written summary of an interview with Ms Walsh conducted in May 2009 at the Calvary Hospital is in evidence. It is noted that those present at the interview were Ms Downey (Nurse Manager), Stephen Crook (GSAHS Human Resource Manager), Graham Ramsay (Calgary Health Social Worker) and Greg Wilcox (NSWNA). When questioned about her dealings with the patient, Mr Wenden, Ms Walsh informed those present that she had not attended Mr Wenden alone. The summary is, in part, difficult to comprehend however it is clear that Ms Walsh identified Ms Gaye Davis as a fellow worker with whom she attended Mr Wenden. It is recorded that the various allegations were denied by Ms Walsh.
A copy of an investigation report signed by Ms Downey and Mr Crook, which is undated is in evidence. That document detailed 10 individual allegations relating to conduct of Ms Walsh. The report summarises the course of the investigation as well as a summary of “previous allegations” which had been investigated in April 2008. The individual allegations are recorded in that report and range from allegations of “rough handling of a resident”; inappropriate/disrespectful comments to patients and unprofessional behaviour in the workplace. Of the 10 allegations eight were found to be “substantiated”.
Attached to the application were a number of documents relating to Ms Walsh’s claim for compensation made in August 2009. By letter dated 24 August 2009 the appellant, through Ms Downey, advised Ms Walsh as follows:
“I write in response to the presentation of a NSW Workcover Medical Certificate for the period 25^th March 2009 to 17^th September 2009 and can advise that we have asked the Area Workers Compensation Unit to lodge a claim on your behalf. EML will respond to you directly regarding their determination on liability of the claim and you will be paid sick leave or other accrued leave until such time as confirmation of their decision is received by the Health Service. If the claim is accepted all leave used will be re-credited.”
Correspondence received by Ms Walsh from the appellant’s insurer dated 22 August 2009 is in evidence. That letter gave notice that provisional payment of weekly benefits was not to be made. It was stated that further information was being sought before a decision was to be made concerning payment.

A copy of correspondence dated 29 October 2009 received by Ms Walsh from Health Care Complaints Commission is in evidence. That letter advised Ms Walsh that the Commission had received a complaint from the appellant on 29 August 2009 concerning Ms Walsh’s conduct in relation to her dealings with patients and that the Commission had assessed the complaint as “suitable for referral to the Board for its management”. Enclosed with that correspondence was notice from the Conduct Committee of the Board indicating that there had been a resolution taken that Ms Walsh be required to undergo a psychiatric examination as provided by s 70 GA(1) of the Nurses and Midwives Act 1991.
Ms Walsh relied upon the evidence of Dr A P McClure, consultant psychiatrist, whose report dated 2 December 2009 was attached to the Application. Dr McClure recorded a detailed history and expressed the view that Ms Walsh, following her suspension from work and notification of additional allegations against her, had developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood which had progressed to a Major Depressive Episode. Dr McClure was of the opinion that Ms Walsh was unfit for her usual duties as an Enrolled Nurse with the appellant. Dr McClure also recorded that Ms Walsh, at the time of that examination was uncertain as to her present position concerning employment with the appellant. Ms Walsh told Dr McClure that she did not know whether she remained employed by the hospital or not. Dr McClure further expressed the opinion that Ms Walsh has a 15 per cent whole person impairment by reason of the psychological injury received in the course of her employment.
A medical certificate issued by Dr Ross dated 17 August 2009 is in evidence. That document certifies that Ms Walsh had been unfit to work between 25 March 2009 and 17 September 2009.

The appellant’s evidence

The documentation attached to the appellant’s Reply includes a great many of the documents which have been relied upon by Ms Walsh as identified above. Reliance is placed upon the following additional documents:
(1)A letter of referral by the appellant of Ms Walsh for psychiatric examination by Dr Klaas Akkerman, psychiatrist, dated 22 June 2009. That letter of referral includes a history of Ms Walsh’s illness as diagnosed by Dr Saboisky in July 2008 and detail of Ms Walsh being stood down from duty following allegations relating to her conduct at her place of work. No history is given in that correspondence to Dr Akkerman of Ms Walsh’s absence on workers compensation benefits in January and February 2009.
(2)A report of Dr Klaas Akkerman dated 7 July 2009. That report includes a history of “a claim for bullying in January 2009. She was off work for one month”. Dr Akkerman concludes that Ms Walsh suffers from Major Depression which “is in remission”. Dr Akkerman expressed the view that he considered Ms Walsh fit to undertake her full duties as an Enrolled Nurse.
(3)A copy of correspondence dated 12 June 2009 from the Commonwealth Department of Health and Ageing addressed to the NSW Department of Health. This document includes a statement of reasons which relates to a conclusion reached by that department that the appellant had not breached its responsibilities under the Aged Care Act 1997 (Cth).
(4)A list of staff to be interviewed in relation to the allegation made against Ms Walsh. Those individuals are named as:
Beatrix Burns - Enrolled Nurse
Jennifer Wilcox – Enrolled Nurse
Sheryl Waldron – Registered Nurse
Patricia Pire – Registered Nurse
Elizabeth McLachlan – Assistant in Nursing
Robyn Atherton – Registered Nurse
Mandy Drummond – Assistant in Nursing
Kate Goodlock – Assistant in Nursing
Diane O’Loughlin – Assistant in Nursing
Dianne Malone – Enrolled Nurse
Barbara Manwaring – Enrolled Nurse
Ursula Kirk – Enrolled Nurse
(5)Copies of transcripts of interviews with the various staff members interviewed in relation to the allegations made against Ms Walsh. Those transcripts included one conducted with Ms Barbara Manwaring which recorded:
“1.Did you provide direct care to Mr Ken Wenden during the last two weeks in the presence of EN Walsh? I didn’t attend to any care with EN Walsh during this period.
2.Have you seen any staff member provide rough treatment or otherwise abuse resident? No, not that I have witnessed.
3.Was there any time where you noticed that EN Walsh’s care to Mr Wenden was inappropriate? No
4.Was there any time where you noticed that EN Walsh’s care to any other residents/patients was inappropriate? No. I rarely work with EN Walsh.
5.Have you had any concern regarding the way that EN Walsh speaks to Mr Wendent? Not that I have witnessed.
6.Have you had any concern regarding the way that EN Walsh speaks to other Residents/patients? I haven’t witnessed it.
7.Other comments? It was me that Mr Wenden had reported the incident to regarding EN Walsh. I was showering him and noticed that he had a bruise. Mr Wenden commented that EN Walsh had pulled him by the arm across the bed. Mr Wenden also stated that he thought EN Walsh was rude, rough and did not want EN Walsh looking after him. He also stated that he thought her personal issues should stay at home. I reported this to the RN. On an earlier date when it was EN Walsh’s first day back from leave and EN Walsh had assisted with Mr Wenden’s shower. Mr Wenden reported to me that he didn’t want the EN looking after him and that her personal issues should stay at home. I reported this to the RN on duty at the time.”
(6)Copies of file notes which have no signature but appear to be compiled on behalf of the appellant. One relates to a telephone conversation between an unnamed person and Ms Walsh which took place on 27 March 2009. The other records the “reports” made in relation to an alleged reportable assault on Mr Kenneth Wenden nursing home resident. Those “reports” included notification to Mr Wenden’s family; the police at Cootamundra Station; and the Commonwealth Department. Those file notes relate to events on 26 March 2009 and it is recorded that a police officer, Mr O’Brien, had attended the appellant’s premises to investigate the alleged incident. That file note also records that on 27 March 2009 a phone call had been put through to Ms Jenny Wenden, a relative of Mr Wenden, who advised that the family had received a phone call from a police officer. Ms Wenden was informed that Mr Wenden had been seen by a medical officer. Also recorded is that the Commonwealth Department was advised that, following the police visit, no further investigation by police “may be necessary”. Also recorded was an offer to Mr Wenden of an opportunity to meet with a counsellor, which offer was declined.
(7)A document which is headed AIMS Incident Detail being the appellant’s record of notification and management of the suggested allegations concerning treatment of Mr Wenden. That document is a summary of a discussion with Mr Wenden which included the following notation “when questioning resident regarding bruises (sic) resident claimed a nurse had grabbed his arm roughly and pulled him across the bed he then proceeded to make claim that nurse was rough rude and should keep her personal issues at home he was requesting that nurse not look after him advised resident to talk to m in charge to relay his feelings he declined on completion of care. I then discussed complaint with m.” It is also recorded that the resident “didn’t want any action taken”. The resident was informed that the matter would need to be reported to the manager to which he agreed. Photographs were taken with the resident’s permission.
(8)A copy of an email sent by Ms Downey to Ms Noeline Blume and Ms Jill Ludford (cc Kym Shreebe) dated 25 March 2009 sent 12:10pm. The subject was “incident at Harden”; importance was stated as being “high”. Other evidence establishes that Ms Shreebe is the Occupational Health and Safety Officer of the appellant. That email included a statement that, fifteen minutes before transmission of the email, a registered nurse had informed Ms Downey that a resident was claiming that he had a bruise on his right arm and claimed that it was due to the rough treatment of Ms Walsh. Further detail is contained in that communication which, where relevant, is addressed hereunder. Ms Downey had stated in that email that she will “need some assistance with report of this and ensuring that I give the correct information”.
(9)A number of documents which relate to investigations conducted in 2008 concerning certain allegations made against Ms Walsh. These documents are not directly relevant to the issues raised on this Appeal.
(10)A four page document headed “identifying reporting and responding to allegations of assault in GSAHS residential aged care”. This is a detailed document relating to reporting procedures and includes definitions concerning “reportable assault”, “unlawful sexual contact” and “unreasonable use of force”. Detail of these definitions and the document appears below.
(11)A 16 page document issued by the Commonwealth Department of Health and Ageing headed “Compulsory Reporting Guidelines for Approved Providers of Residential Aged Care”. That document includes a summary of relevant legislation including definitions of “reportable assault” and “unreasonable use of force”. That document also contains a summary of the manner of response to allegations of assault. Detail of this document is addressed below.
(12)A copy of Policy Directive issued by Department of Health, NSW published 30 January 2006 which is headed “Complaint or Concern About a Clinician – Principles for Action”. That is a 12 page document which establishes those principles which must be addressed when managing a complaint or concern about a clinician.
(13)Two documents issued by the Australian Nursing and Midwifery Council which relate to national competencies standards for the enrolled nurse and the code of professional conduct for nurses in Australia.
(14)Correspondence dated 21 October 2009 from the appellant to Ms Bhagwat, an officer in the employ of the appellant’s workers compensation insurer. That correspondence summarises the history of events concerning Ms Walsh during the course of 2008 and 2009.
(15)A report from Dr Brian Potter, psychiatrist, dated 3 November 2009. That report relates to an examination conducted by Dr Potter of Ms Walsh which occurred, following arrangement by the appellant, on 26 October 2009. Dr Potter expressed the view that Ms Walsh suffered from an Adjustment Disorder with mixed anxiety and depression. In a second report from Dr Potter dated 11 November 2009 it was stated:
“I think it more likely that Ms Walsh had a mood disorder and struggle with life, which preceded her difficulties at work. The difficulties at work then have compounded her dysfunction.”

The Appellant’s submissions before the Arbitrator

Counsel appearing on behalf of the appellant before the Arbitrator noted that the parties had agreed that the date of injury was 18 August 2009. That date had been determined having regard to the date and content of the medical certificate referred to in [45] above.
It was put on behalf of the appellant that “all of the events between 25 March 2009 and July 2009 upon which [Ms Walsh] relies as constituting the events giving rise to the injury were actions in respect of either discipline or termination to (sic) the employment within the meaning of section 11A”. The “action taken or proposed to be taken” in terms of the section includes, it was argued, “a wide range of events” which “have some nexus with the termination in this case, or discipline”.
The appellant submitted that the question of “reasonableness” is a question of fact for determination by the Commission. Reference was made to the decision of Hobden v South East Illawarra Area Health Service [2010] NSWWCCPD 13 (Hobden). It was put that the decision of Hobden did not “contain any point of principle by which [the Commission] is bound”.
Reference was made to the policy and directive documents in evidence before the Commission and it was put that, given there was an allegation affecting the welfare of a patient, the appellant was “bound to investigate” and that such investigation necessarily involved an inquiry concerning the employee’s conduct to enable an assessment of the need, if any, for discipline. It was argued that the appellant’s action was “reasonable”and that it was “mandated…by law and policy”.
Counsel informed the Arbitrator that there was “no issue about incapacity”.

Ms Walsh’s submissions before the Arbitrator

Counsel appearing on behalf of Ms Walsh put that the actions of the appellant were “very much in accordance with the policy, a knee jerk reaction to do something” and that such action did not come “within the ambit of 11A”.
Counsel argued that, if the appellant’s conduct was “within 11A”, the manner of such action was not reasonable. Correspondence dated 26 March 2009 forwarded to Ms Walsh did not comply with policy requirements. It was further argued that the email communication dated 15 April 2009 was not properly documented as is required. A number of further allegations were mentioned. It was indicated that they were to be investigated. The only action to be taken at that stage was an investigation. That action was not in relation to discipline or termination.
It was further argued, if it be found that the action fell within the terms of s 11A, that the appellant’s conduct was “farcical”. Attention was given to the various allegations as documented by the appellant. It was put that those allegations were “paltry and undefined”.
Concerning the issue of “reasonableness” counsel made reference to circumstances of the interview conducted with Ms Walsh at the hospital in Canberra and noted that there is “no document anywhere here of some statement or the like anywhere by Mr Wenden, from which all this started”. Counsel drew the Arbitrator’s attention to Ms Walsh’s statement that she had not attended Mr Wenden “alone”. It was submitted that there was “no medical evidence, no complaint at time, no identification of the other staff member and a denial by [Ms Walsh]”. Notwithstanding these circumstances the allegation of rough handling of Mr Wenden was found to have been substantiated. Such action on the part of the employer was not reasonable but rather “atrocious”. It was further put that the suspension of Ms Walsh cannot be considered to be reasonable action within the meaning of s 11A and “nor can this concoction of other complaints, and then the investigation and findings be considered reasonable”.

The Arbitrator’s conclusions

The Arbitrator summarised submissions put on behalf of each party following which reference was made to the evidence including detail of communications between the appellant and Ms Walsh in March and April 2009. The Arbitrator appears to find that a “diagnosable clinical psychological condition became evident following the first letter of 26 March 2009 and was further exacerbated by the allegations contained in the email of 15 April 2009”. An observation was made by the Arbitrator that, should the Commission be satisfied that the psychological condition suffered by Ms Walsh “emanated from the first letter of 26 March 2009” and further if the Commission was satisfied that “the effect of that letter was to convey nothing more of an investigative enquiry then it would certainly fall outside the realms of the definition of words used within the definition of section 11A and hence the respondent would fail in its application of that defence”.
The Arbitrator proceeded (at [31] of reasons) to observe that there was “much conjecture about the basis of the allegation” concerning Mr Wenden. The Arbitrator further observed that he was satisfied “that there are sufficient parallels with the case in question and that of Hobden’s case to negate [the appellant’s] defence under section 11A”. This observation appears to be directed to the contents of correspondence dated 26 March 2009. The Arbitrator proceeded to state that it would not be appropriate “to comment upon whether or not [the appellant’s] subsequent activities were reasonable or not”. The Arbitrator proceeded to enter an award in Ms Walsh’s favour.

SUBMISSIONS

The appellant through its counsel at the hearing before the Arbitrator, properly in my view, conceded the occurrence of injury being a psychological injury within the meaning of the 1987 Act and that incapacity had resulted from such injury. The dispute requiring adjudication was the availability, or otherwise, of a defence to the claim brought by Ms Walsh pursuant to the provisions of 11A of the 1987 Act. That section, so far as is presently relevant provides:
“11A(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 submissions on Appeal

The appellant’s complaint on this Appeal is that the Arbitrator has failed to address the totality of the “process” adopted by the appellant concerning the allegation of misconduct on the part of Ms Walsh in her dealings with Mr Wenden and the subsequent “allegations”. Reference is made to the decisions of the Court of Appeal in Manly Pacific International Hotel v Doyle [1999] NSWCA 465; 19 NSWCCR 181 (Doyle) and Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 (Sinclair). It is argued that the decisions of Doyle and Sinclair support the proposition that the Commission, when addressing the relevance of s 11A, is to consider the entirety of the appellant’s conduct with respect to the issues of discipline and/or termination. It is argued that the Arbitrator’s failure to address the totality of the process constitutes an error of law.
It is also argued that the Arbitrator’s reasons do not reveal with any precision what finding was made by him as to causation of injury. Reliance is placed upon the decision of Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (Soulemezis) and Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430; 25 MVR 373 in support of the proposition that failure to give such reasons constitutes an error of law.
The appellant draws attention to Ms Walsh’s argument founded upon the decision in Hobden. It is put that the Arbitrator’s reasons are “difficult to understand” and that it is not clear as to what precisely the Arbitrator had found other than that the facts of the present case were sufficiently similar to the facts in Hobden to yield “an identical result”. It is put that this uncertainty “does not represent a proper discharge of the Arbitrator’s duties either as to fact finding, expression of reasoning or the application of law”.
The appellant places reliance upon the decision in Sinclair in support of the proposition that “the investigative process preceding any ultimate decision on appraisal or discipline can necessarily form part of the actions caught by section 11A”. It is put that if the Arbitrator found otherwise, which is not clear having regard to his statements in the course of reasons, he was in error.
Reliance was placed upon submissions made before the Arbitrator. It had earlier been noted that counsel at the hearing had argued that the Arbitrator’s task did not involve reconsideration of the merits of the complaints that had been made against Ms Walsh but rather the entirety of the process required examination to determine the availability or otherwise of a defence pursuant to s 11A.

Ms Walsh’s submissions on Appeal

It is submitted by Ms Walsh that the Arbitrator has made his reasoning “abundantly clear” and that there has been a finding that her injury was “caused by receipt … of the letter from the appellant of 26 March 2009… and email of 15 April 2009”. Attention is drawn to the Arbitrator’s finding that Ms Walsh’s psychological state was “certainly heightened” as a consequence of the letter and “further exacerbated” as a consequence of receipt of the email.
It is argued that the Arbitrator was able to “isolate the effect of a step (or two steps) being the letter and email as being causative of Ms Walsh’s psychological condition”. Such a finding, it is argued, was made in Hobden and, having regard to that finding, there was no need for the Arbitrator to take into account the whole of the disciplinary process “to ascertain whether it fell within section 11A”. The observations made by Spigelman CJ in Sinclair are distinguished on the facts.
It is made clear in the course of submissions that Ms Walsh relied upon those submissions made before the Arbitrator, concerning the reasonableness of the appellant’s actions, as an alternative to the argument that there had been a discrete injury resulting from the receipt of the letter and email.

DISCUSSION AND FINDINGS

The appellant is correct to submit that there is an obligation upon the Arbitrator to give reasons for his decision. Those reasons should be sufficient to enable a party to exercise a right of appeal. It was stated by Mahoney JA in Soulemezis, following reference to earlier authority:
“Thus, the statement of reasons may be necessary to enable the party to exercise his right of appeal or such other rights as he may have to contest the decision; this is one of the conventional functions of the requirement.”

The Arbitrator dealt with the question as to the relevance or otherwise of s 11A between [20] and [31] of his Reasons. Those reasons followed immediately upon a statement concerning the question raised for determination. The question was expressed as follows:
“Was the injury wholly or predominately 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 worker or provision of employment benefits to the worker.”

It is the appellant’s submission that it is impossible to determine from the Reasons as expressed by the Arbitrator what finding was made with respect to causation of injury. In argument Ms Walsh asserts that it is clear that the Arbitrator has determined that the cause of her injury was the cumulative effect of the communications made, firstly by letter on 26 March 2009 and secondly, receipt of the email on 15 April 2009.
Having considered the Reasons as expressed by the Arbitrator I accept the appellant’s submission that the obligation upon him to clearly state Reasons for his conclusions has not been met. A proper consideration of the issues agitated before the Arbitrator required an analysis of the evidence; a determination as to whether the conceded injury had been wholly or predominantly caused by relevant action of the appellant within the meaning of s 11A, and, if the facts as found attract the application of that section, whether such action was reasonable. Each of the matters which I have just enumerated had been pressed in the course of submissions before the Arbitrator. He has, by inference, apparently found that the events in March and April were not within the description of “action” within the meaning of s 11A. Having so found the Arbitrator (at [31] of reasons) stated “it is not appropriate to comment upon whether or not the respondent’s subsequent activities were reasonable or not.” Following a careful consideration of the Reasons as expressed by the Arbitrator, I accept the appellant’s argument that “it is difficult to understand precisely what he has found”. Whilst it is clear that the Arbitrator has determined that the provisions of s 11A have no application to the facts, I do not consider that he has discharged his obligation with respect to provision of sufficient reasons for so concluding. In the circumstances the evidence requires review to determine the correctness or otherwise of the Arbitrator’s conclusions.

Causation of Injury

It is reasonably clear that the Arbitrator has concluded that receipt by Ms Walsh of the letter and the email had caused the significant psychological injury which led to her incapacity . There can be little doubt that both those incidents contributed to the onset of Ms Walsh’s psychological condition. The Arbitrator has assumed that Ms Walsh was informed of the allegations immediately upon her return to work following a period of incapacity by reason of earlier psychological injury (at [20] of Reasons). In fact Ms Walsh had been engaged in a return to work program from 23 February 2009 and had completed that program at the time she was verbally advised by Ms Downey of the “complaint” made against her. That occurred on 25 March 2009. Ms Walsh was rostered off work on 26 March 2009, that being the date of the appellant’s correspondence which confirmed that there had been an allegation of “rough handling” which was to be the subject of an investigation. That correspondence also advised that she would be “stood down from duty with pay until the completion of this investigation”. That correspondence was received by Ms Walsh on 30 March 2009. The letter was signed by Ms Jill Ludford, Central Sector General Manager. It may be seen that at the end of March 2009, within days of Ms Walsh completing a return to work program which followed a short period of incapacity, she had received communications concerning a “complaint” or “allegation”, that the appellant proposed to conduct an investigation and that she had been stood down.
It is important to note that the approval of Ms Walsh’s suspension with pay which occurred on 26 March 2009 is recorded in a document which is headed “Service Check Register for NSW Health Services”. That document includes the following entry:
“Creation of this scr Record is based on a serious disciplinary matter involving an allegation which if proven involves a serious sex or violence offences [sic] (carrying a possible penalty of 12 months or more in prison) or unsatisfactory professional conduct or professional misconduct as referred to in s 117 of the Health Services Act 1997”.
There can be no doubt, in my opinion, that the action initiated by the appellant on 25 March 2009 was action taken on behalf of the appellant with respect to discipline of Ms Walsh. An allegation had been recorded of conduct which led to her immediate suspension and the institution of an investigation.
The investigation included the conduct of interviews with the staff members who are identified in [46(4)] above. Those interviews were conducted between 30 March and 2 April 2009. Six residents of the Aged Care Facility were also interviewed in the first week of April 2009. Thereafter, those investigating the matter caused the email dated 15 April 2009 to be sent. That communication required that Ms Walsh attend a fact finding interview at the manager’s office at Murrumburrah on Tuesday 21 April 2009 at 3.30 pm. The email contained detail of a large number of further “allegations” concerning Ms Walsh’s conduct which had, it was said, emerged during the course of investigation. Upon receipt of that email Ms Walsh became distressed and sought medical attention which led to her admission to Calvary Hospital in Canberra where she remained as an inpatient between 18 March 2009 and 22 May 2009.
Dr McClure in his report of 2 December 2009 expressed the view that following her suspension from work and notification of additional allegations made against her, Ms Walsh developed an adjustment disorder and that that condition had progressed by the time of his examination to a Major Depressive Episode. The cause of Ms Walsh’s psychiatric injury was, having regard to the views expressed by Dr McClure, receipt of the verbal and written communications made with Ms Walsh in March and April 2009 concerning the allegations and the commencement of investigations. Those investigations concerned matters relating to discipline as is made clear by the appellant’s reference to the provisions of s 117 of the Health Services Act 1997. That section provides:

“117 Duty to report certain criminal conduct and disciplinary matters

(1)   A member of staff who is charged with having committed, or is convicted
of, a serious sex or violence offence must, within 7 days of the charge being laid or conviction, report that fact in writing to the chief executive of the relevant organisation.
Note: The term "serious sex or violence offence" is defined in the Dictionary to mean an offence involving sexual activity, acts of indecency, physical violence or the threat of physical violence that:
(a)    if committed in New South Wales, is punishable by
imprisonment for 12 months or more, or
(b)    if committed elsewhere than in New South Wales, would have
been an offence punishable by imprisonment for 12 months or more if committed in New South Wales.

(2)   A member of staff who has a misconduct finding made against him or her under the Health Practitioner Regulation National Law (NSW) must, within 7 days of receiving notice of the finding:
(a)   report that fact to the chief executive of the relevant organisation,
and
(b)   provide the chief executive with a copy of that finding.

(3) In this section:
"chief executive of the relevant organisation", in relation to a member of staff, means the chief executive of the public health organisation to which the member of staff has been assigned.
"misconduct finding" includes a finding of professional misconduct or unsatisfactory professional conduct.”

Ms Walsh’s argument, which places reliance upon the decision of Hobden as I have attempted to summarise at [65] above, must be rejected. I accept the appellant’s argument that there is no matter of principle to be derived from the relevant finding made in the matter of Hobden concerning the characterisation of the meeting between the worker in that case and a Mr Vasquez, the worker’s superior. In the matter of Hobden, events at the meeting were found not to fall “within the parameters of section 11A(1)”. The findings made which led to that conclusion included that Mr Vasquez was not authorised to implement any performance management nor to discipline the worker or dismiss her from employment. It was further found that Mr Vasquez’s action was restricted to the making of recommendations which may in due course have led to performance management, discipline and/or dismissal. Those facts may be distinguished from the present being the institution of an investigative process which led, within 24 hours, to the suspension of Ms Walsh, which suspension had been “based on a serious disciplinary matter” as described in the appellant’s documentation at [37] above. I accept the opinion of Dr McClure that the psychiatric injury received by Ms Walsh was initiated by those communications in March and April 2009 and that the investigative process and subsequent action taken on behalf of the appellant contributed to the perpetuation of that condition and, as stated at page 19 of his report, contributed to the progression of that condition to that of a Major Depressive Episode.
For the reasons which I have attempted to summarise above I conclude that Ms Walsh’s injury was wholly or predominantly caused by action taken or proposed to be taken by or on behalf of the appellant with respect to discipline within the meaning of s 11A(1). The findings which I have made concerning causation involve a common factual circumstance which, often, requires consideration in the context of s 11A. As was observed by Spigelman CJ in Sinclair (at [96]):
“Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.”

Was the appellant’s action reasonable?

The word “reasonable” as it appears in s 11A(1) was addressed by Armitage J in Ritchie v Department of Community Services [1998] NSWCC 40; 16 NSWCCR 727 (Ritchie). In that matter, when considering the question of reasonableness of action, his Honour adopted what was said by Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251(at 263):
“The test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience… The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.”
I am guided by the observations then made by his Honour in Ritchie, in particular that which was stated at [47] where his Honour concluded that the test as to reasonableness is an objective one “where one must weigh the consequences of the respondent’s conduct against the reasons given for it”.
The appellant is correct in its submission that the question of reasonableness does not involve reconsideration of the merits of the complaints made against Ms Walsh. I also accept the appellant’s argument that there is a need to examine the entirety of the process, or using the statutory term “action”, to determine the availability or otherwise of a defence under s 11A.
The action taken on behalf of the appellant followed what was described by Ms Downey as a “complaint” made by Mr Wendon. It is established on the evidence that a report of “rough handling” had been made to Ms Downey by Ms Barbara Manwaring. It is clear that Mr Wendon’s statement that he had been pulled by the arm across the bed followed an enquiry by Ms Manwaring concerning a bruise she had observed on Mr Wendon’s arm. Whilst it is clear that Mr Wendon’s statements concerning Ms Walsh’s conduct demonstrates a degree of hostility on his part, the evidence does not, in my opinion, establish that it was Mr Wendon’s intention to formally make a complaint against Ms Walsh in the sense of making a formal accusation. It is of significance that Mr Wendon informed Ms Downey on 25 March 2009 that he did not wish any action to be taken. In the circumstances, whilst there had been a report by Ms Manwaring of her discussion with Mr Wendon, there was in fact no complaint made by Mr Wendon, nor was any complaint made by him subsequently. It is clear that at the time Ms Downey spoke to Ms Walsh on 25 March 2009, the statement that there had been “a complaint” was inaccurate. The non-existence of complaint is, to an extent, confirmed having regard to the evidence that the police authorities, following an interview with Mr Wendon, took no further action. It is also of significance that Mr Wendon’s relatives, who had been informed by Ms Downey of the suggested complaint, chose to take no action to initiate a complaint process.
Notwithstanding the absence of formal complaint, the appellant’s immediate response was to put into place a formal investigative process appropriate to treatment of a serious disciplinary matter as described in the service check register referred to in [37] above. Within 24 hours of the conversation between Ms Manwaring and Ms Downey, Ms Walsh had been “stood down” and a recommendation had been made that the New South Wales Police be informed and that reports be made to the Commonwealth Department of Health and Ageing and the NSW Nurses and Midwives Board.
It is of significance that the document referred to in [46(7)] above nominates Ms Patricia Pirie as one of those staff members who gave notification of the suggested complaint. Ms Pirie was interviewed on 30 March 2009 and a file note concerning that interview is in evidence. Those present were Ms Downey, Ms Kerry Menz and Ms Sheryl Waldron. That file note does not record any question being put to Ms Pirie concerning those matters which had been earlier reported by Ms Manwaring.
Ms Walsh has stated in evidence that she informed Ms Downey on 25 March 2009 that during her return to work program she constantly worked with Ms Gaye Davis and that “she must be a witness”. The investigation included interviews with 12 of the nursing staff, however there is no evidence that Ms Davis had been approached on behalf of the appellant for the purpose of providing evidence concerning Ms Walsh’s behaviour. The absence of an interview with Ms Davis is not explained.
The email received by Ms Walsh dated 15 April 2009 was the first notice received by her that “further concerns” had been raised regarding her manner and treatment of aged care patients. It was those concerns, which related to Ms Walsh’s manner of speech and general behaviour when dealing with patients, that subsequently formed the basis of “allegations” which were addressed in the investigation report, which is undated, but appears to have been prepared by the appellant in late July or early August 2009. Of the additional 10 “matters of concern” which became allegations, eight were found to have been “substantiated”.

The evidence establishes that the investigation of these matters had been concluded in the first half of April 2009. Thereafter Ms Walsh had been interviewed at the Calvary Hospital concerning these matters in May 2009. Ms Walsh heard nothing in relation to the investigation and in July 2009 instructed her then solicitors Messrs Maurice Blackburn to write to the appellant. That correspondence is in evidence. It appears at page 47 of those documents attached to the Reply. The following matters were addressed in the correspondence:
“We understand that our client participated in an interview with yourself, Belinda Downey, Graham Ramsay and Greg Wilcox on 29 May 2009.
We note that it is now some 4 months since our client was suspended and 4 months since the investigation was completed. Our client has been provided with no time frame with respect to the handing down of findings in relation to this matter.
We would appreciate it if you would advise this office within 7 days of the date of this letter as to the proposed time table with the making of findings in respect to this matter. Having regard to the “Fact Finding Summary Report” and the leading and assumptive questions which are asked therein, we assume that there will be a finding that each of the allegations against our client is not proven.
We further note that the inordinate time this matter has taken, and the absence of any time table or assurance to our client is adversely affecting her health. Accordingly, we would appreciate your early reply in this regard.”
The evidence establishes that the investigation report signed by Ms Downey and Mr Crook was received by Ms Walsh on or about 7 August 2009. There is no evidence before the Commission which explains the need for the delay between completion of the investigation which apparently occurred immediately following Ms Walsh’s interview at the Calvary Hospital and communication of the outcome of the investigation. It is clear on the evidence that there had been no communication between the appellant and Ms Walsh between those last mentioned events.
It is the appellant’s contention that its actions are reasonable within the provisions of s 11A and further that they were “mandated … by law and policy”. That argument suggests that the information conveyed by Ms Manwaring to Ms Downey was of such character that the appellant’s subsequent conduct was governed by the various policy statements and guidelines which are in evidence. The primary documents to which counsel appears to have alluded in the course of submissions are three in number. First there is the appellant’s own document headed ‘Identifying Reporting and Responding to Allegations of Assault in GSAHS residential aged care’. The second document is the Policy Directive issued by Department of Health, NSW. The third document is that issued by the Commonwealth Department of Health and Ageing which contains “compulsory reporting guidelines for approved providers of residential aged care”.
The appellant’s own document addresses the subject of “alleged or suspected reportable assaults”. Reportable assaults are defined in that document as “unlawful sexual contact with a resident of an aged care home; or unreasonable use of force on a resident of an aged care home”. That definition is taken from the relevant Commonwealth legislation.
The term “unreasonable use of force” is said in that document to be defined in the relevant legislation and “is intended to capture assaults ranging from deliberate and violent physical attacks on residents to the use of unwarranted physical force on a resident. For example, the definition captures hitting, punching or kicking a resident regardless of whether this in fact causes visible harm, such as bruising”.
The policy directive issued by the New South Wales Department of Health requires that there be appropriate investigation of all complaints including those that appear to be frivolous, vexatious or trivial. Requirements as to “fairness” are stipulated. It is stated that “conflicts of interest should be avoided wherever possible, and where unavoidable, must be disclosed”.
The guidelines issued by the Commonwealth Department of Health and Ageing is perhaps the most comprehensive of the three “policy” documents which are in evidence. That document makes reference to the statutory definitions of a reportable assault and unreasonable use of force. As to the latter the document contains the following observation:
“Unreasonable use of force as defined in the Act is intended to capture assaults ranging from deliberate and violent physical attacks on residents to the use of unwarranted physical force on a resident. For example, the definition captures hitting, punching or kicking a resident regardless of whether this in fact causes visible harm, such as bruising.
It is recognised that in the aged care environment, there may be circumstances where a staff member could be genuinely trying to assist a resident, and despite their best intentions the resident is injured because the person bruises easily or has fragile skin. Injury alone therefore may not provide conclusive evidence of either the use of unreasonable force or the seriousness of an assault”.
The Commonwealth Department’s document also notes that “when incidents of alleged assault are reported, investigation of the incident is the responsibility of the Police. The Police will determine whether the incident is criminal in nature and what further police action is required. Only the police should investigate criminal activity”.
The action taken by or on behalf of the appellant following Ms Manwaring’s report of her conversation with Mr Wenden appears to have followed that course appropriate to management of alleged reportable assaults. I have earlier observed that Mr Wenden had declined to make a complaint concerning any conduct on the part of Ms Walsh. There is no suggestion in the evidence that Mr Wenden is in any way mentally impaired or in need of particular protection or guidance. It is thus clear that the draconian processes of reporting and suspension of employment were invoked following a report by Ms Manwaring of the sighting of a bruise which had occurred some two weeks earlier in circumstances where it was suggested by Mr Wenden that Ms Walsh had pulled him by the arm across his bed. Those circumstances do not, in my opinion, support an inference that a “reportable assault” had been alleged or suspected. There is no evidence which suggests that attention had been given to the cautionary wording to be found in the Commonwealth Department’s Guideline which is referred to at [92] above. I note in passing that the actions were taken in the knowledge that Mr Wenden’s treating doctor had reported concerning the relevant bruise that “duration in view of [Mr Wenden’s] ongoing antiplatelet medication is difficult to ascertain”, and that “there is every possibility that one does not have to have a major trauma to sustain this bruising”.
I reject the appellant’s argument that its conduct was in some way “mandated by law and policy”. The action instituted by the appellant had been prompted only by those matters concerning Mr Wenden. Ms Downey’s statement, when in discussion with Ms Walsh, that a complaint had been made by a resident was inaccurate. The question arises as to whether it can be said that the appellant, following the report by Ms Manwaring, was truly confronted by a matter of such seriousness as to give rise to the need to take those steps summarised above. The answer to that question is provided by an examination of all relevant events including the fact that Mr Wenden did not want to complain to the appellant, and the Police reported that Mr Wenden declined to make a statement. A decision as to the action to be taken appears to have been made without regard to those two important factors. In my view, an objective analysis of all the surrounding circumstances establishes that the appellant’s actions taken immediately following Ms Manwaring’s report were not reasonable.
I have earlier observed that the investigation initiated by the appellant led very soon to an escalation of the “allegations” against Ms Walsh. Those allegations were founded upon information which was not volunteered by any party but elicited from those individuals questioned by the investigators in a manner which is described by Ms Walsh’s former solicitors as “leading and assumptive questions”. In my view none of those additional “allegations” could alone or collectively justify the action which had earlier been initiated and had progressed into the month of April 2009. I conclude that the appellant’s “unearthing” of the additional allegations did not have the consequence that the action was reasonable.
The manner of conduct of the investigation is open to criticism given the apparent failure to seek information from the fellow worker Ms Gaye Davis. The Murrumburrah health facility is a relatively small organisation. A great many staff members were interviewed during the course of the investigation process. It may safely be inferred that an organisation such as the appellant would have records relating to attendances of staff on particular shifts. There is no evidence that any steps were taken to confirm or refute Ms Walsh’s assertion that she had been working with Ms Davis at relevant times. This failure is further evidence which leads me to conclude that the actions of the appellant were not reasonable.
I have earlier made reference to correspondence forwarded to the appellant by Ms Walsh’s former solicitors concerning delay and the effects of such delay upon their client. This matter has not been addressed in submissions and in the circumstances it is unnecessary to determine whether there was any delay which may be relevant to the question of reasonableness.
The evidence is silent as to what, if any, further action was taken following notification given to Ms Walsh that consideration was being given to termination of her employment. There is a document attached to the original application that appears to be a draft application addressed to the Industrial Commission of New South Wales seeking relief in relation to unfair dismissal. That draft document, at [15], includes particulars as follows: “date of dismissal or threat of dismissal 9 September 2009”. There is no other evidence before the Commission concerning termination of Ms Walsh’s employment as was foreshadowed in correspondence forwarded to her by the appellant dated 31 July 2009. It is to be noted that no history of formal termination of employment was recorded by Dr Potter during the compilation of a very comprehensive history during an assessment of Ms Walsh which occurred on 26 October 2009. Dr McClure, in December 2009, noted that Ms Walsh was uncertain as to her then present position concerning employment.
The appellant’s reliance upon s 11A was stated in the notice referred to in [9] above to have been founded upon reasonable action taken with respect to “performance appraisal and/or discipline”. In the course of argument before the Arbitrator the focus of submissions addressed the issues of “discipline and/or termination”. There is conflict between the form of notice and the manner in which the issues have been addressed by the parties on hearing and on this appeal. My assessment of the evidence and determination as to the reasonableness of the appellant’s action has been limited to those matters relevant to the issue of action in relation to discipline. I note that, in my view, the appellant has raised no argument concerning appraisal or termination that would lead me to a conclusion different to that expressed in this determination. Leaving aside the question as to the appellant’s entitlement to raise matters concerning action with respect to ‘termination’, I note that no meaningful submission has been put concerning that matter, nor concerning the question of ‘appraisal’.
The appellant’s argument that its actions had been mandated by law and policy suggests that the policy and guideline documents read with the terms of the Aged Care Act 1997 required the action to be taken and that performance of such an obligation rendered the action reasonable. That submission must be rejected. On an objective analysis of all facts and circumstances it cannot, in my view, be said that the “report” as made by Ms Manwaring to Ms Downey was of such a character that there arose an obligation that the appellant act as it did.
The fact that legislation and guidelines may require and/or authorise certain action does not, alone, render action as being reasonable. Proper exercise of judgment and assessment of facts and circumstances must be made by those responsible to determine the threshold question as to whether such action is required. Any subsequent action must, if a defence is to be made out, be reasonable. I conclude that both the decision to institute the action and the manner of conduct of the appellant in the course of the investigative process were not reasonable. In the circumstances the defence founded upon the terms of s11A must fail.
It follows that Ms Walsh is entitled, as was found by the Arbitrator, to an award for weekly payments and the other relief sought in her application. It was accepted by Ms Walsh’s counsel during the course of the teleconference conducted on 1 September 2010 that his client’s incapacity commenced in March 2009. The claim for weekly benefits which is before the Commission commences on 14 December 2009. The evidence establishes that Ms Walsh received her full pay whilst she was stood down and that such payments continued until approximately 24 August 2009. Correspondence sent on that day by Ms Downey to Ms Walsh acknowledged that a compensation claim had been lodged. Ms Walsh was informed that the insurer “will respond to you directly regarding the determination of liability of the claim and you will be paid sick leave or other accrued leave until such time as confirmation of the decision is received by the Health Service. If the claim is accepted all leave used will be re-credited”.
Having regard to the history of payments made to Ms Walsh, it was accepted by her counsel in the course of the teleconference that his client had received payment of entitlement pursuant to s 36 of the 1987 Act and that the award as sought dating from 14 December 2009 is a sum calculated upon the basis of the maximum statutory rate prescribed by the legislation. I propose making such an order however I acknowledge that Ms Walsh may have some entitlement to financial adjustments having regard to the apparent payment of sick and other accrued leave between August and December 2009. The parties should endeavour to resolve any such entitlement by consent. Should there be a dispute the parties may have leave to apply seeking appropriate orders.
Having conducted a review on the merits I find that Ms Walsh received injury, being a psychological injury, arising out of or in the course of her employment in 2009. As a result of such injury Ms Walsh has been totally incapacitated for work from 26 March to date and that such incapacity continues. The quantum of Ms Walsh’s weekly payments as provided in the determination of the Arbitrator is not a correct assessment of her entitlement. The Arbitrator’s order with respect to that matter therefore requires revocation. An order in substitution appears below. I note that the parties agree that the deemed date of injury is 18 August 2009, being the date of claim made by Ms Walsh.

DECISION

Paragraph 1 of the Arbitrator’s Certificate of Determination dated 3 May 2010 is revoked and the following order is made in its place:
“1. The respondent is to pay the applicant weekly compensation pursuant to section 37 of the Workers Compensation Act 1987 as follows:
$396.10 from 14 December 2009 to 31 March 2010, and
$403.70 from 1 April 2010 to date and continuing, such weekly payments to be adjusted in accordance with indexed amounts as prescribed from time to time.”
Paragraphs 2, 3 and 4 of the Arbitrator’s Certificate of Determination dated 3 May 2010 are confirmed.
The parties are to have liberty to apply with respect to any application which may arise by reason of payments made to the applicant prior to 14 December 2009.

COSTS

The appellant is to pay the worker’s costs of the appeal.

Kevin O’Grady
Deputy President
14 September 2010

I, PENELOPE FLEMING CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF, DEPUTY PRESIDENT KEVIN O’GRADY OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE