Jetstar Airways Pty Ltd v Canterbury - [2011] NSWWCCPD 54

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Jetstar Airways Pty Ltd v Canterbury [2011] NSWWCCPD 54
APPELLANT:		Jetstar Airways Pty Ltd
RESPONDENT:		Chad Canterbury
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		A1-10150/10
ARBITRATOR:	Mr R Perrignon
DATE OF ARBITRATOR’S DECISION:		4 May 2011
DATE OF APPEAL DECISION:		22 September 2011
SUBJECT MATTER OF DECISION:		Psychological injury; whole or predominant cause of injury; reasonable action taken with respect to discipline; s 11A of the Workers Compensation Act 1987
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	W G McNally Jones Staff
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 4 May 2011 is confirmed. 2. The appellant employer is to pay the worker’s costs.

BACKGROUND

Chad Canterbury was employed as a flight attendant by Jetstar Airways Pty Ltd. On 4 December 2009, he was “deadheading” on Jetstar flight JQ521 between Sydney and Melbourne. “Deadheading” is a term used to describe travel performed at the direction of Jetstar, but not associated with the operational duties of the aircraft. It occurs when positioning for a tour of duty or returning to a home base.
On 4 December 2009, Mr Canterbury and another work colleague, Kimberley Noye, were travelling from Sydney to Melbourne at Jetstar’s direction to join a flight departing from Melbourne the following day to which he had been assigned as part of the cabin crew.
Neither he nor Ms Noye had been assigned to operational duties on flight JQ521. They sat in passenger seats. During the course of the flight, the flight crew offered them refreshments. At their request, they were given wine, cheese, crackers and confectionery. They consumed at least some of the refreshments, including the alcoholic beverages. Mr Canterbury offered to pay for the refreshments and gave his credit card to one of the flight crew to process the transaction. The card was taken away and returned to him some time later. He was not asked to sign any authorisation for the transaction and was not issued with a receipt.
On 23 December 2009, the Manager, Cabin Services Domestic, Mr Sheehan, wrote to Mr Canterbury. He informed him that he was investigating certain allegations against Mr Canterbury. He asked Mr Canterbury to respond in writing to the following allegations by 31 December 2009:
“1.     It is alleged that on 04 December 2009 while you were on duty on a passengering sector on Jetstar flight JQ521 Sydney–Melbourne, you and another employee also on duty obtained items from the service cart that included, 1 bottle of Sparkling Wine, 1 bottle of Red Wine, 1 packet of Pringles, 1 Packet of Cheese & Crackers, 2 Packets of M & Ms.
2.     It is alleged that no payment was made by you or the other employee travelling with you, either by cash or credit card for the items received from the cart.
3.     It is alleged that having obtained the goods as listed above, that [sic] you consumed alcohol on board this flight while you were on duty. Your duty did not finish until 15 minutes after your arrival time at Melbourne.
Jetstar considers the above allegations to be serious matters which if substantiated would be considered to be in breach of ... Company Policies and Procedures ...
... The serious nature of the allegations necessitates them being fully investigated by Jetstar. You should be aware that these are serious allegations, which, if substantiated, may result in disciplinary action, including termination of your employment.”
Mr Canterbury denied the allegations. Mr Paul Sheehan, Manager, Cabin Services Domestic, conducted an investigation on behalf of Jetstar.
By letter dated 3 February 2010, Mr Sheehan notified Mr Canterbury that the allegations had been substantiated. The letter included, among other things, the following statement:
“I cannot stress enough that this is absolutely your last chance to demonstrate to the Company that you are willing and able to work in compliance with all Company policies and procedures from this date forward. You need to be aware that if there are any future instances where it is proven you have breached any company policy and procedures, your employment will be terminated. I am therefore issuing you with a Formal Warning in relation to the above allegations.”
It is common ground that, at about this time, Mr Canterbury suffered a psychological injury, namely, an adjustment disorder with mixed anxiety and depressed mood.
Mr Canterbury subsequently made a claim for weekly compensation and payment of his medical expenses. His claim form and the precise basis upon which the claim was made are not in evidence, but it is understood he alleged his psychological injury was due to the disciplinary proceedings and as a result of bullying by his manager, Ms Boyle.
Jetstar’s workers compensation insurer, Allianz Australia Workers Compensation (NSW) Ltd (Allianz), referred the claim to the Centre for Corporate Health for a “pre-liability assessment”. A lengthy report was submitted by Jacki Elphinstone, whose background, experience and qualifications are not in evidence, but who is apparently a consultant psychologist. Mr Canterbury was assessed by clinical interview and questionnaire at the Centre for Corporate Health city offices on 26 February 2010. As part of the assessment process, Ms Elphinstone met with and interviewed several senior staff. Unsuccessful attempts were made to contact Dr L Prasad, the worker’s general practitioner, and Ms Lauren Adams, his treating psychologist. The pre-liability assessment and summary of findings were submitted to Allianz on 5 March 2010.
Allianz wrote to Mr Canterbury on 15 March 2010. It denied liability. It alleged, among other things, that, even if the reported psychological injury was due to Mr Canterbury’s employment with Jetstar, it is not compensable because it was wholly or predominantly caused by reasonable actions of the employer with respect to transfer, performance appraisal, discipline and retrenchment. Allianz relied on the provisions of s 11A of the Workers Compensation Act 1987 (the 1987 Act).
At the worker’s request, the decision to decline benefits was reviewed by Allianz. On 16 March 2010, Allianz wrote to Mr Canterbury informing him that the decision to decline liability was confirmed for the reasons stated at [10].
On 8 July 2010, Mr Canterbury’s solicitors wrote to Allianz and supplied it with further documentation relevant to the claim, with a request that the decision be reviewed.
On 14 July 2010, Mr Canterbury’s solicitors lodged an Application to Resolve a Dispute (Matter No 5661/10) on his behalf. Mr Canterbury claimed weekly benefit compensation from 6 February 2010 and payment of medical expenses.
On 26 July 2010, Allianz wrote to Mr Canterbury in response to his solicitor’s request and again confirmed its decision to decline liability.
Jetstar filed a Reply to the Application to Resolve a Dispute on 2 August 2010, denying liability on the basis outlined in its s 74 notices, which included the s 11A defence. The dispute was listed on two occasions for an arbitration hearing. Those proceedings were discontinued on 13 September 2010.
On 8 December 2010, Mr Canterbury lodged another Application to Resolve a Dispute with the Commission. He alleged that he had sustained psychological injury arising from him being subjected to “undue psychological stresses as detailed in attached documents, reports and statements”. He sought weekly compensation between 6 February 2010 and 4 October 2010.
On 24 December 2010, Jetstar lodged a Reply to the Application to Resolve a Dispute. Whilst Allianz initially put injury in dispute, as the matter unfolded before the Arbitrator, there were only two issues in dispute:
(a) “Whether Mr Canterburry’s psychological injury was wholly or predominately caused by the action of the employer with regard to the investigation and its outcome on or prior to 4 February 2010, and
(b) If so, whether those actions were reasonable”.
In support of the claim that the employer’s actions were reasonable, Allianz stated, in response to the worker’s allegation that he had been unfairly treated or treated differently to other flight attendants, that the process involved informing him in writing of the allegations made against him, the consideration of his response, and Jetstar’s notification to the worker that the allegations had been substantiated. Allianz informed the worker that the suspension of staff travel for six months was deemed appropriate in circumstances where the staff travel policy permits suspension for up to 12 months. It concluded that the employer had acted reasonably, in line with internal policies and procedures.
The Application was listed for an arbitration hearing before an Arbitrator on 29 March 2011. Both parties were legally represented. Mr Canterbury gave some very brief evidence, but the matter substantially proceeded by way of oral submissions. On 4 May 2011, in a reserved decision, the Arbitrator found in favour of Mr Canterbury. Having regard to all the evidence, the Arbitrator found that Mr Canterbury’s psychological injury was not wholly caused by the actions of the respondent with respect to discipline. He also found that Jetstar had failed to establish that the injury was predominantly caused by those actions. He determined that the actions of Jetstar with respect to discipline were not reasonable. The defence under s 11A failed.

THE DECISION UNDER REVIEW

In a Certificate of Determination issued on 4 May 2011, the Commission determined as follows:
“1. Award for the applicant of weekly compensation as follows:
a.at the rate of $754.34 per week for the period 6 February 2010 to 14 July 2010, pursuant to section 36 of the Workers Compensation Act 1987, and
b.at the rate of $603.47 per week for the period 15 July 2010 to 14 October 2010, pursuant to section 38 of the Workers Compensation Act 1987.
2. The respondent is to pay the applicant’s reasonably necessary medical and related expenses pursuant to section 60 of the Workers Compensation Act 1987.
3. The respondent is to pay the applicant’s costs of these proceedings, and I certify the matter as complex and allow an uplift of 15 per cent for both parties.
4. Pursuant to clause 9(2) of Schedule 6 to the Workers Compensation Regulation 2010 and for the purposes of the calculation or assessment of costs, this resolution is to be treated as a separate resolution from the resolution of proceedings number 5661/10.”
Jetstar has appealed the Arbitrator’s determination.

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 Nos 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.

THE PROCEEDINGS BEFORE THE ARBITRATOR

The matter proceeded before the Arbitrator on the basis that it was conceded that Mr Canterbury suffered a psychological injury, namely, anxiety disorder with mixed anxiety and depressed mood. It was agreed, subject to Jetstar’s s 11A defence, that the worker’s employment was a substantial contributing factor to the injury, and that the provisions of s 9A were satisfied.
Mr Canterbury no longer pressed any allegation that his psychological injury was caused by bullying and harassment by Ms Boyle.
The issues for determination by the Arbitrator were:
(a) To determine whether Mr Canterbury’s psychological condition was wholly or predominantly caused by reasonable action of the employer with respect to discipline within the meaning of s 11A.
(b) In the event that the Commission was satisfied that the worker’s psychological injury was predominantly caused by actions with respect to discipline, whether the actions of the employer were reasonable – the s 11A defence.
(c) In the event that these issues were determined in favour of the worker, the parties agreed on the terms of the orders necessary to reflect those findings.

PRELIMINARY MATTERS

Before proceeding to deal with an appeal, the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.

Monetary threshold

The monetary thresholds in s 352(3) of the 1998 Act are satisfied.

Time

The appeal was lodged within 28 days of the Arbitrator’s initial decision in compliance with s 352(4) of the 1998 Act.

JETSTAR POLICIES AND PROCEDURES

Jetstar Standards and Service Guide

Jetstar tendered extracts from its Standards and Service Guide. Relevantly, it provided:
“Crew Purchase of Sale On Board Items
Cabin crew can purchase Sale On Board Items from the service carts at any time, however it’s really important that the following process is strictly adhered to at all times:
þThe CSM/CM is the only crew member authorised to process a crew sale.
þThe CSM/CM must be advised of the intent to purchase prior to items being removed from the service carts.
þThe item must be entered into the POS as per standard sales procedures.
þA receipt of purchase must be printed and retained by the crewmember purchasing the item.
þWhere the item is not consumed during the duty and/or taken off the aircraft, a receipt must be retained as proof of purchase.
þThe CSM/CM is authorised to request proof of purchase at any time during or after the duty.”

Jetstar Alcohol and Other Drugs Policy

Jetstar tendered extracts from its Alcohol and Other Drugs Policy. Relevant extracts include the following:
“Policy
Jetstar maintains a zero blood alcohol and drug free Policy within all of its workplaces. This means that all Jetstar employees, including contractors and temporary staff, must be free from alcohol and/or other drugs whilst at work or on duty, on Jetstar premises or elsewhere, or in Jetstar uniform, other than when specifically authorised as detailed below.
The unauthorised use, possession, sale, manufacture, solicitation or distribution of any alcohol or other drugs on Jetstar premises, at any time, is prohibited.
All employees and contractors must undergo A&OD training and alcohol and drug testing where required.
Civil Aviation Safety Regulations (CASR) Part 99 mandates the Jetstar DAMP and education programs, and A&OD testing for those employees and contractors who undertake Safety Sensitive Aviation Activities (SSAAs). SSAAs include:
·Flight crew
·Cabin crew
·Freight operations
·Aircraft dispatch and load controlling
·Aircraft maintenance and repair
·Aviation security
·Baggage handling and ramp operations
·Ground refuelling
·Other activities conducted airside
Jetstar employees who have a problem with alcohol and/or drugs are encouraged to seek help.
Jetstar employees who breach this Policy may be subject to disciplinary action which may include termination of employment. SSAA employees and contractors who commit an offence against CASR Part 99 are subject to penalties.
Authority to Consume Alcohol
The consumption of alcohol by employees or contractors on duty, on Jetstar premises or elsewhere requires prior approval by Department General Managers. Department General Managers may also authorise the consumption of alcohol on duty travel provided that employees or contractors are out of uniform and such travel is not followed by a period of work or duty. At no time will permission be granted to consume alcohol at airside locations.
In such cases, employee and contractor behaviour must be in accordance with the Jetstar Standards and Conduct Policy and employees and contractors are required to observe the relevant local laws relating to blood alcohol limits whilst operating a motor vehicle or other forms of transport.
In all cases it is the employee’s or contractor’s responsibility to seek appropriate authorisation prior to consuming alcohol whilst on duty, whether on Jetstar premises or elsewhere.
Whilst in Public in Uniform
Employees and contractors of Jetstar and the Qantas Group are not permitted to consume alcohol or other drugs in public whilst in Jetstar uniform, regardless of whether at work, or on or off duty. This includes travel in vehicles on public roads.”

Jetstar Operations Manual OM12

Section 6.16.5.1 provides as follows:
“Crew Meal Entitlements
All air crew positioning on Jetstar flights only as part of their duty, have specific meal entitlements depending on time of paxing sector (refer Crew Meal Entitlement Policy in the Star Quality Service Guide for further information).
All crew meals must be correctly documented and recorded to indicate complimentary sale. Where an item not designated as crew meal entitlement has been purchased, correct sale/transaction procedures must be followed and proof of purchase obtained (refer Standards and Service Guide ‘Crew Meal Entitlements’). Air crew positioning in uniform must not be served alcoholic beverages.”

THE EVIDENCE

Chad Canterbury

During the course of the pre-liability assessment, Ms Elphinstone obtained a statement from Mr Canterbury dated 2 March 2010. Mr Canterbury stated that, on 4 December 2009, he had operated flights between Sydney and Townsville and return. Whilst “deadheading” between Sydney and Melbourne in preparation for his next day’s rostered flying, he consumed certain food and beverage items. He stated that he assumed that the items had been paid for, as he had handed over his credit card to the operating crew member, Ms Vesna Becker.
Mr Canterbury stated that he received correspondence requiring him to respond to the following allegations:
“i.It is alleged that on 4 December 2009, while I was on duty on a passenger sector on Jetstar Flight JQ521 Sydney to Melbourne that I and another employee, also on duty, obtained items from the service cart that included one bottle of sparkling wine, one bottle of red wine, one packet of Pringles, one packet of cheese and crackers, two packets of M&Ms.
ii.It is alleged that no payment was made by me or the other employee travelling with me, either by cash or credit card for the items received from the cart.
iii.It is alleged that having obtained the goods as listed above, that I consumed alcohol on board the flight whilst on duty and my duty did not finish until 15 minutes after arrival time at Melbourne.”
Mr Canterbury stated that he acknowledged obtaining the food and beverage items. He denied that he was in uniform. He stated that, under the terms of his enterprise bargaining agreement (EBA), he would not have been “legal” to operate on the flight between Sydney and Melbourne due to the extent of the flying hours he had already completed that day. He acknowledged that he was aware of the policy concerning the consumption of alcohol while “deadheading/paxing”. He stated that he was not operating on the sector, but rather, was on pax travel.
Mr Canterbury said he and the colleague changed into business attire before commencing the flight. This, he said, was common practice among all Jetstar employees when “deadheading/paxing”, ranging from pilots to cabin crew. He quoted the Jetstar operations manual, OM12:
“Alcohol may be consumed if positioning on duty in civilian clothing provided the sector is not immediately followed by an operating duty where there is a minimum of eight hours prior to the next operational sector.”

With regard to the allegation of non-payment, he stated that he had provided his credit card to the operating crew member, Ms Vesna Becker, for processing. At least one other employee witnessed the handing over of the credit card. The card was taken away for a period of time and then returned to him. He stated that he did not believe that Mr Andrew Christos, head of catering (who initiated the complaint) seated in seat 12D, had seen him give his credit card to the operating crew member. He stated that he did not believe it was his responsibility if the transaction had not been processed.
Mr Canterbury stated that, as far as he was aware, his consumption of alcohol while on board was permitted, having regard to OM12.
Mr Canterbury denied that he was on duty at the relevant time. He stated that his duty finished when he completed the Townsville to Sydney flight, adding that there was more than eight hours between the completion of the Townsville to Sydney sector and the next day’s sign-on.
Mr Canterbury stated that he received a letter dated 3 February 2010 from Mr Paul Sheehan, who indicated that the allegations were substantiated on the basis of his own response and a witness statement from a crew member who was operating on the flight. His attention was drawn to the regulations regarding crew purchases on board in the “Star Quality Service Guide” at page 205. The regulations provided that a receipt of purchase must be printed and retained by the crew member purchasing the item. Mr Sheehan stated that the worker was considered to be on duty until 15 minutes after the arrival of the flight in Melbourne. He was informed in the letter from Mr Sheehan that the company considered that this was absolutely his last chance to demonstrate to the company that he was willing and able to work in compliance with all company policies and procedures from that day forward, and that he needed to be conscious that any future instances where it could be proven that he had breached company policy and procedures would result in termination of his employment.
Jetstar also proceeded with allegations of breach of company policy so far as it related to Ms Noye’s involvement. Although the allegations were substantiated against her also, in view of her good record with the company, no further action was taken.
Mr Canterbury took issue with the outcome of disciplinary proceedings concerning an incident in 2007, the details of which are not currently relevant.
Mr Canterbury then outlined allegations of victimisation, bullying and harassment at the hands of Ms Catherine Boyle, the base manager. He stated he felt he was being dealt with differently to other staff. He stated that other staff had been seen to have acted the same way he had but they had not been singled out. He said:
“I feel victimised, bullied, harassed and discriminated against, to say the very least. There seems to be a noticeable pattern at work, amongst the Sydney based flight attendants, that staff members who are not Caucasian in appearance and background, seem to have more and constant problematic professional life, with Ms Boyle”
Mr Canterbury cited an incident that he felt was evidence of victimisation. In February 2010, Mr Canterbury was approached by Ms Boyle concerning a period of three days sick leave in October 2009. Ms Boyle stated that the worker had not provided a sick leave certificate for the period and that, in the absence of the certificate, she would contact human resources to “take the matter further”. Mr Canterbury stated his belief that he was entitled to take four non-certified sick days per year, but said “when it comes to me personally there is a problem when I try to use the rules”.
Mr Canterbury stated in summary that:
“my distress and leave taken from work is related to the formal warning letter received on 23 December 2009, with outcome letter received on 3 February 2010 regarding my alleged breach of company policy.”
He then went on to make a commitment to comply with the company’s rules and procedures, and outlined the extent of the distress that he felt as a result of the incident, and the impact it had had on his family.
In a subsequent statement dated 10 May 2010, Mr Canterbury stated that, during the flight to Melbourne, he was wearing generic black trousers and shoes, a blue shirt, having taken off his Jetstar shirt, and a blue jacket over the shirt, having removed his Jetstar jacket. He stated that none of the clothes he was wearing had a Jetstar insignia and that he had taken off his ASIC (Jetstar identification), which he had rolled up and placed in his pocket. He stated that any assertion to the contrary by Mr Christos was incorrect. He stated that he recalled two other staff members travelling on the flight who were sitting behind him and, to the best of his recollection, they were asleep during the whole journey. He concluded by adding that, had he been wearing any element of crew clothing identifying him as a member of staff, he would not have been served by the operating crew, as it would breach company policy.
In a final statement dated 29 June 2010, Mr Canterbury stated that he had been provided with a copy of the Allianz s 74 notice through his treating general practitioner. He denied having been sent a copy of the notice by Allianz. He denied having been provided with a copy of the pre-liability assessment dated 5 March 2010 or the statements of C Boyle dated 2 March 2010, P Sheehan dated 2 March 2010, or P Dyball dated 2 March 2010.

Laura Patterson

Ms Patterson wrote to Mr Canterbury on 19 April 2010. She stated:
“I was operating on JQ521 and can witness that you were not in uniform or partial uniform at anytime on the flight JQ521 Sydney to Melbourne.
Thanks
Laura Patterson”

Monique Naiyana Sornsiri

Ms Sornsiri sent an email to Mr Canterbury on 16 April 2010. It stated:
“Dear Chad or To whom Ever it May Concern,
I write you this letter of my own free will and hope it will assist you and shed some light on what you are trying to explain.
I have been employed at Jetstar airways as a Sydney based Domestic Flight Attendant. I completed 6 weeks of Ground School training in May 2006, my ground school instructor was Kerin Oswin. One of the things I was taught in Ground school in 2006, was that if I were paxing/deadheading and not rostered/required or within legal duty hour limitations to operate any type of flying, I was in actual fact permitted to consume alcoholic beverages, if I were to wear a ‘chardy Cardie’. A ‘Chardie Cardy’ was explained to me as that of being any type of jacket, shirt or jumper that I would put over my uniform top so that I would not be identifiable to the travelling public that I worked for the company. We were informed that, we did not require to change out of our uniform pants or skirts as they are just black in colour and would not be identifiable to the travelling public as part of our uniform.
I have engaged in ‘chardy cardie’ behaviour on several occasions and have witnessed other the [sic] crew including pilots engage in the above mentioned behaviour and still see the practice of the above mentioned behaviour occur all the time. I have never been told or notified that this practice of ‘chardy Cardy’ is no longer acceptable. I am fully aware of all current policies within the qantas [sic] group including the drug and alcohol policy. I would comment that the drug and alcohol policy does contradict our operations Manual 12 issued by Jetstar, but would further comment that this is an unfortunate daily standard within the company we work for.
There seems to be too many Chiefs, not enough Indians and the left hand regularly has no idea what the right hand is doing. Please do not hesitate to contact me should you have any further queries.”

Jacki Elphinstone

As I mentioned during the course of outlining the background to the application, Allianz arranged for a pre-liability assessment to be undertaken by the Centre for Corporate Health Pty Ltd. The assessment, dated 5 March 2010, was undertaken by Ms Jacki Elphinstone, clinical psychologist. The outcome of the report, which I will come to in due course, is a compilation of an investigative factual report and a clinical assessment. Ms Elphinstone interviewed the worker and obtained an educational and work history, personal background, relevant medical and psychiatric history, and the worker’s account of the factors precipitating the onset of his psychological injury. His account of the precipitating factors is in the same terms as his statement referred to at [33]–[47].
Ms Elphinstone interviewed Catherine Boyle, the Regional Base Manager, Cabin Crew Domestic (Sydney), Jetstar Australia.

Catherine Boyle interview

Ms Boyle did not provide a signed statement. She was interviewed by Ms Elphinstone and various information was recorded. Ms Boyle stated that Mr Canterbury’s work performance had been satisfactory, with the exception of an excessive amount of sick leave taken between July 2009 and January 2010, totalling 35 days.
Ms Boyle recounted two episodes when Mr Canterbury had reported late for work. He had not been cautioned in relation to his sick leave utilisation, except for a request for an outstanding medical certificate for a period of leave taken from 31 October 2009 to 2 November 2009.
Ms Boyle stated that she had been fair, open, professional, approachable and honest in her dealings with Mr Canterbury.
In February 2006, she cautioned Mr Canterbury regarding a late sign-in. On 6 February 2008, he was found to have breached the company policy concerning staff travel. After providing Mr Canterbury with an opportunity to respond to the allegation, it was found to have been substantiated and he was banned from staff travel privileges for six months.
On 30 November 2009, Ms Boyle placed a note in the worker’s pigeonhole regarding the missing medical certificate for sick leave taken on 6, 7 and 8 November 2009.
Ms Boyle had cause to speak to Mr Canterbury in April 2009 when he was again late in reporting for duty. Mr Canterbury conceded that he had misled Christian Steinman, the Jetstar crewing officer, as to his whereabouts, initially telling him that he was in the airport car park when, in fact, he was still 40 minutes away from the airport.
Ms Boyle stated that, although she was aware of the allegations of breach of company policy concerning the events of 23 December 2009, she was not involved in initiating the process to investigate the allegations. She merely emailed the letter of allegation to Mr Canterbury and was responsible for placing a copy of the outcome letter in his pigeonhole as requested by Paul Sheehan.
Much of the information proffered by Ms Boyle during the course of the interview concerned her interactions with Mr Canterbury which go to the question of his allegations of bullying and harassment. As those allegations were ultimately not pressed, I have not reproduced them.

Peitta Dyball interview

During the course of Ms Elphinstone’s investigation, she interviewed Ms Peitta Dyball, Human Resources Manager, Jetstar Australia, on 26 February 2010.
Ms Elphinstone’s report contains an unsigned record of interview with Ms Peitta Dyball recorded on 26 February 2010. Ms Dyball commented upon Ms Boyle’s management concerning allegations that Mr Canterbury breached the staff travel regulations in February 2008. She recorded the process of the investigation undertaken by Ms Boyle, including the laying of six allegations, five of which were substantiated after investigation. Mr Canterbury was given a formal warning and his staff travel benefits were suspended for six months. Ms Dyball commented that, so far as she was concerned, the outcome was lenient, given that proven breaches can result in suspension of staff travel benefits for up to 12 months.
Ms Dyball then offered some views that were complimentary of Ms Boyle’s leadership style. She postulated some theories as to why there may have been discontent, either by the worker or staff generally, including the possibility that the then current enterprise bargaining agreement negotiations were in progress.
Ms Dyball stated that it was her understanding that the complaints concerning Mr Canterbury related to his non-payment for food and beverages consumed in-flight “in partial uniform and while identifiable as a staff member”. She confirmed that the investigation was prompted by a complaint by the in-flight services manager, who was on the relevant flight and on-duty. She stated that the catering provider was asked to conduct an audit of all credit card transactions, which disclosed no transaction by Mr Canterbury. She reiterated the company policy, which requires staff members to keep a receipt for any items they consume in flight. She noted that Mr Canterbury was unable to provide a receipt. Ms Dyball stated that witness statements revealed that Mr Canterbury’s colleague had offered to pay for the goods, but accepted Mr Canterbury’s offer to do so. She stated that Mr Canterbury had handed the staff member serving him a napkin with the name of Mr Andrew Christos, the in-flight services manager, written on it. She stated that it had no significance for the staff member, as she did not know who Mr Christos was. Ms Dyball stated that it is clearly defined in the EBA that paxing is a form of duty and Mr Canterbury was therefore on duty until 15 minutes after landing in Melbourne. She stated that Mr Canterbury and the other staff member he was with “still had their ASIC cards on being visible identification that they were staff members, even though they were in partial uniform and partial civilian clothes”.
Ms Dyball stated that Ms Boyle was not involved in the initiation of the investigation or in the investigation itself, but she would have received copies of the outcome letters and the findings of the investigation.
Ms Dyball stated that there was nothing unusual about Ms Boyle’s request for the worker to supply her with medical certificates for sick leave taken. She stated that this was in compliance with normal procedural requirements.

Paul Sheehan interview

Ms Elphinstone’s report contains an unsigned record of interview with Paul Sheehan, Manager, Cabin Services Domestic, undated. Mr Sheehan’s evidence in so far as it relates to the February 2008 allegations, the investigation into them and the outcome are in substantially similar terms to the details recorded in the record of interview with Ms Dyball.
With regard to the allegations concerning 23 December 2009, Mr Sheehan stated:
“With regard to the most recent complaints investigation dated 23 December 2009, I understand that while Mr Canterbury was on a pax flight, he gave his credit card to staff on the flight with a note as payment for food and beverages consumed however he has not received a receipt for the purchase of the food and beverage items and there is no evidence of any payment. In addition Mr Canterbury was consuming alcohol on the flight during duty time and in partial uniform and while identifiable as a staff member. Our policy forbids staff from drinking whilst on duty. I checked Mr Canterbury’s EBA and Company Policy, and he is not to drink until fifteen minutes after the arrival of his last flight. In this instance he was on his way to Melbourne on a passenger flight before sign-off. Once in Melbourne we could have required him to operate to another destination because there was still time available on his shift for him to do so. At this stage he had only completed approximately five hours of travel and shift work and his shift could continue for up to 9 hours and 45 minutes which would leave time for another flight to another destination. Mr Canterbury whilst claiming that he was in business attire was actually still in uniform and had taken off his Jetstar coat which was open down the front so his uniform was clearly visible and his ID was in full view so he would easily have been identified as a Jetstar employee.
Regarding the procedure followed connected with the allegations of breach of company policy dated 23 December 2009, a report was received from the Inflight Services Manager who was on the flight and on duty. Staff would recognise the Inflight Services Manager because he flies a lot. A number of the other management members of the Inflight Services Team were on the flight and crew would have been well aware of their presence. A report was filed to me, and I made a decision to conduct an investigation. As a result, three letters of allegation were sent to crew members, including Mr Canterbury, the other staff member he was with and the operating crew who served them. After further enquiries, a fourth letter of allegation was sent to another operating crew member. Mr Canterbury responded in writing and his responses were reviewed against other responses from staff members and their version of events. Mr Canterbury had stated he had paid by credit card. The catering provider was asked to conduct an audit of all credit card transactions. There were no transactions with credit cards used with Mr Canterbury’s name nor any receipt issued to Mr Canterbury, which would have proved that he paid for the items consumed. Our policy manual states that they are required to keep a receipt for the items they can purchase on-board, as in this instance Mr Canterbury was not entitled to the items consumed, free of charge. Mr Canterbury was unable to provide a receipt.”
Mr Sheehan went on to state that the EBA defined paxing as a form of duty, such that Mr Canterbury was on duty until 15 minutes after landing in Melbourne. He said:
“Mr Canterbury and the other staff member he was with still had their ASIC cards on, being visible identification that they were staff members, even though they were in partial uniform and partial civilian clothing.”
Mr Sheehan described the investigation process, which included providing Mr Canterbury with a letter of allegation dated 23 December 2009. He stated that Ms Boyle was not involved in the investigation. The investigation was instigated by a report from a head office staff member, namely, the in-flight services manager. He advised Ms Boyle that he was investigating the allegations concerning Mr Canterbury. He stated that a response was received from Mr Canterbury on 4 January 2010 and a formal warning was issued to him in a letter dated 3 February 2010.
Mr Sheehan noted the irregularities concerning Mr Canterbury’s failure to properly document all sick leave and stated that Ms Boyle’s handling of the sick leave issue was consistent with company policy.
Mr Sheehan stated that, in his opinion, Mr Canterbury was overreacting to a normal management process with regard to the 23 December 2009 allegations and the outcome of the investigation. He stated that Mr Canterbury had been denied requests for annual leave due to having failed to give the minimum six weeks notice of the requested leave, but on several occasions had taken sick leave when requests for annual leave had been declined.
Ms Elphinstone recorded her attempts to contact Dr Prasad, the worker’s treating general practitioner, and Ms Lauren Adams, his treating psychologist. She recorded the details of a personality assessment inventory (PAI test) which had been administered to the worker. She recorded details of his clinical features and confirmed a diagnosis of adjustment disorder with mixed anxiety and depressed mood.
In terms of contributing factors to Mr Canterbury’s condition, Ms Elphinstone concluded:
“Based on available evidence there is one major causative factor to Mr Canterbury’s current distress which relates to the receipt of the outcome letter dated 3 February 2010 with advice of substantiated allegations against him, administration of a second formal warning and management’s request for missing medical certificates from Mr Canterbury on 29 January 2010 which may reveal inaccuracies in his reported sick leave records. Such performance issues which have placed Mr Canterbury under the close scrutiny of his superiors appear to have been linked to the onset of Mr Canterbury’s distress. Hence this work factor of formal performance management issues is deemed to be a major causative factor to Mr Canterbury’s distress.”

Jetstar Investigation – “Summary of Key Evidence”

It is common ground that a document headed “Summary of Key Evidence – Chad Canterbury Investigation February 2010” was first made available to the worker after the outcome of the investigation was notified to him on 3 February 2010. The document contains a brief extract outlining the nature of the allegations against Mr Canterbury and noting in summary form the evidence of three key witnesses. The document is significant as it indicates that, as part of the investigation, more complete statements were taken from three key witnesses. Neither the statements nor the summary of the evidence were provided to Mr Canterbury. The evidence contained in those statements is contradictory of the evidence of Mr Christos in material respects. The following is an extract of the summary of the witnesses’ evidence:
“Witness Report 1:
I had commenced work at 06:10 hrs on the 4^th December 2009 and had completed my operational duties at 12:55 hrs. Having completed my operational duties, I was paxing on Flight JQ 521 to Melbourne as positioning crew for the following day. I had changed from Jetstar uniform into civilian clothes. I was seated in 12A next to Flight Attendant Mr Chad Canterbury.
During the flight I was approached by the Jetstar Flight Attendant and offered to order from the cart. As I was out of uniform I requested and was supplied with a drink, Pringles and a single packet of M&Ms. I went to get up to my bag to retrieve money to pay for the purchases. Mr Canterbury offered to pay for the meal on his credit card. As we were at the over wing exit Mr Canterbury got up and provided his credit card to the on duty Jetstar Flight Attendant. The on duty Jetstar Flight Attendant then went to the rear cabin with the credit card. After approximately 10 minutes the on duty Jetstar Flight Attendant returned and handed what I believed to be a credit card and/or other paper work to Mr Canterbury.
Witness Report 2:
To clarify I was operating on Flight JQ 521 Sydney–Melbourne on the date in question. The first allegation was that I supplied one bottle of sparkling wine, and one bottle of red wine. I can strongly deny that I did not supply these items to the paxing crew members, and wish to confirm that they were already on their tray tables which indicates that another crew member had already supplied these items.
As part of this allegation I would however like to acknowledge that I did issue a packet of Pringles, cheese and crackers as well as M&Ms upon being requested by the paxing crew member Chad.
I now understand and fully acknowledge that they were not entitled to these items at this time. The flight in question was at capacity, it was a demanding afternoon service. Looking back now I feel that Chad may have been taking advantage of the busy situation that I and other crew members found ourselves in.
In relation to the allegation that no payment by cash/credit card was seen to be made, that would be correct at the time. However the credit card was handed to me by Chad after he had handed me his napkin with a name on it. The name read Andrew Christos and at the time the name did not register as I had not heard of him before and am not aware of what he looks like.
I assumed that Chad was handing me the credit card for the payment of the alcoholic beverages that were already placed on their tray tables. With the card in my possession it needed to be handed to the back cart/crew as they were the staff who would have issued the alcoholic drinks. Once I handed the card to the back crew a discussion had started between the Cabin Manager and the back crew. However I felt I could leave the matter with them and proceeded to return to recommence my other duties as it was getting close to descent.

Witness Report 3:
I did not serve Chad Canterbury or Kimberly Noye any food or drinks on the flight JQ521 on 4^th of December 2009.”

Mr Canterbury identified Witness 1 as Kimberley Noye, Witness 2 as the flight attendant who supplied the food to Mr Canterbury and Witness 3 appears to be another operational flight attendant.

Mr Canterbury’s appeal to Jetstar

Mr Canterbury pursued an internal appeal from the company’s findings with the assistance of his union. Mr Sanderson, an official of the Flight Attendants’ Association, wrote to Mary Lou Cann, the General Manager, Customer Services, Jetstar Airways, on 23 April 2010 on behalf of Mr Canterbury. He made the following points. First, no attempt had ever been made to seek payment from Mr Canterbury after the concerns about non-payment for the items consumed on the flight were first raised. Mr Sanderson made the point that, until such time as Mr Canterbury had been asked to pay for the items and refused, no wrongdoing on his part could be made out. He stated that the real issue was whether Mr Canterbury had made reasonable efforts to pay for the items or, conversely, whether he had intended to steal them. He submitted that the failure to investigate that proposition amounted to a complete failure of process. He reiterated that all of the witnesses, but for Mr Christos, supported Mr Canterbury’s assertion that he surrendered his credit card for payment. He suggested that it was an absurd proposition that to fail to obtain a receipt amounted to proof of an intention to steal the items.
Mr Sanderson alerted Jetstar to the contradictory evidence concerning whether or not Mr Canterbury was in uniform. He asserted that the finding appeared to be unsupported by the evidence. At best, Mr Sanderson pointed out that the company had two conflicting statements as to whether Mr Canterbury was in uniform and, in those circumstances, it had been the company’s practice in at least one other similar investigation to find that the allegations could not be substantiated. Mr Sanderson pointed to the contradictions between operating manual OM12 and the Drug and Alcohol Policy. He refuted the company’s suggestion that the onus was on Mr Canterbury to clarify the position when there were contradictory policies, stating it was grossly unfair. He asserted that it was Jetstar’s responsibility to ensure that the company’s policies and procedures were consistent and clear in their meaning.
In response to the submissions, Jetstar wrote to Mr Canterbury on 16 April 2010. The decision of 3 February 2010 was confirmed, for the following reasons:
(a)     Even though a credit card had been proffered, no payment had been made, and thus the allegation was correctly substantiated.
(b)     There was no contradicting evidence to state that Mr Canterbury was not in partial uniform and with his ASIC visible. None of the other witnesses commented on whether Mr Canterbury was in uniform or not. As part of the appeal, Ms Cann stated that she had questioned other staff travellers on the flight who had confirmed that Mr Canterbury was in partial uniform on the flight and identifiable as a paxing crew.
(c)     Ms Cann stated that, if Mr Canterbury was confused about the conflict between the drug and alcohol policy and the content of OM12, he should have clarified it at the time he completed his training. Despite any ambiguity, the fact that Mr Canterbury was consuming alcohol in partial uniform with the ASIC visible was a clear breach of the policy.

THE ARBITRATOR’S REASONS

Issue 1: “Whole or predominant cause” of injury

The Arbitrator stated that, following the conciliation, the parties agreed that the sole issue in dispute was whether Mr Canterbury’s psychological injury was wholly or predominantly caused by reasonable action of the employer with respect to discipline within the meaning of s 11A. He said that the employer informed the Commission that it relied solely on the investigation by Mr Sheehan and its determination, and the notification of that determination to Mr Canterbury by letter dated 3 February 2010. It relied on no other action of the employer.
The Arbitrator noted that Jetstar relied on the opinion of Ms Elphinstone. He noted at [35] of the Reasons that, although she concluded that there was only one major causative factor to Mr Canterbury’s condition, she in fact identified two causative factors, being:
(a) “the notice of 3 February 2010, which indicated that the complaints against Mr Canterbury were substantiated, and threatened dismissal on any further breach of the rules, and
(b) Ms Boyle’s request for missing medical certificates on 29 January 2010.”
The Arbitrator found that, even accepting Ms Elphinstone’s evidence at its highest, her opinion contradicts the proposition that the sole cause of the worker’s injury was the employer’s disciplinary action. He found that Ms Elphinstone admitted that there was a least one other cause of the injury, namely, a management issue concerning the sick leave irregularities.
The Arbitrator found that there was no evidence that Ms Boyle’s request with respect to the sick leave issue formed any part of the disciplinary action or proposed disciplinary action. So far as that matter was concerned, Ms Elphinstone concluded that Ms Boyle’s request was no more than a routine request for a medical certificate to support an application for sick leave.
For those reasons, the Arbitrator found that Ms Elphinstone’s opinion did not support the proposition that the predominant cause of the injury was the employer’s action with respect to discipline.
The Arbitrator concluded that the worker’s injury resulted “from an accumulation of stressors from at least 29 January 2010, up to and including receipt of the notice of 3 February 2010” (Statement of Reasons (Reasons) at [40].
The Arbitrator stated at [41] of the Reasons:
(a) “I am satisfied that the psychological injury was not caused wholly by actions of the employer with respect to discipline, and
(b) I am not satisfied that the psychological injury was predominantly caused by actions of the employer with respect to discipline”.

Issue 2: Were the actions of the employer reasonable?

Having regard to the Arbitrator’s findings above, it was not necessary for him to consider whether the employer’s actions were reasonable but, as that issue consumed a considerable amount of the evidence and the bulk of the submissions at the hearing, he made findings nonetheless.
The Arbitrator noted (at [43] of the Reasons) that whether the actions of the employer are reasonable is a question of fact to be determined objectively (Commissioner of Police v Minahan [2003] NSWCA 239; 1 DDCR 57). Section 11A(1) requires a consideration not only of the transfer, disciplinary action or other matter referred to in the section, but the employer’s actions with respect to it (Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; (1999) 19 NSWCCR 181 (Doyle)).
The Arbitrator weighed Mr Canterbury’s submission that the actions of the employer were unreasonable in the following respects:
(a)     The investigator, Mr Sheehan, failed to interview Ms Patterson, a crew member on JQ521 who was prepared to corroborate Mr Canterbury’s evidence that he was in plain clothes, and not in uniform as Mr Sheehan found.
(b)     Mr Sheehan failed to disclose the content of witness statements taken by him, which allegedly contradicted the evidence of Mr Canterbury, and on which
Mr Sheehan relied in making his determinations against Mr Canterbury.
(c)     Mr Sheehan made a finding on an allegation which was not put to Mr Canterbury in the letter of 23 December 2009, and to which he did not have an opportunity to respond.
The Arbitrator noted that the investigation proceeded on the basis that Mr Canterbury admitted to consuming alcohol on the flight, but denied he was in uniform and asserted he had proffered his credit card to pay for the items.
Only Mr Christos described Mr Canterbury as being in full or partial uniform with his ASIC identity card visible. Other witnesses were silent on that issue. The Arbitrator concluded that Mr Sheehan must have rejected Mr Canterbury’s evidence and accepted that of Mr Christos on that issue. There was no evidence to suggest that any of the three witnesses referred to in the “key evidence “ summary were even asked about Mr Canterbury’s attire. No explanation was given for that omission. The Arbitrator noted that there was evidence available from Ms Patterson, who was a member of the operating crew on flight JQ521, to contradict Mr Christos’s assertion that the worker was in uniform at the relevant time. There is no evidence that Ms Patterson was interviewed and no reason or excuse was offered for that omission.
The Arbitrator concluded (at [49] of the Reasons) that, in the absence of reasonable excuse, the employer’s failure to interview Ms Patterson at all was unreasonable. It was a material failure, in that her evidence would have corroborated Mr Canterbury’s denial that he was in uniform, and thus weakened the probative value of Mr Christos’s evidence. The Arbitrator concluded it would have weakened the reliability of both his perception and recollection of events on board flight JQ521 generally.
The Arbitrator further concluded (at [50]) that, in the absence of an explanation, the employer’s failure to elicit evidence from the other three witnesses as to Mr Canterbury’s attire was unreasonable.
The Arbitrator stated that the evidence of the three witnesses was consistent with Mr Canterbury’s response and inconsistent in a material respect with the complaint of Mr Christos with respect to proffering his credit card.
Ultimately, Mr Sheehan found, contrary to Mr Christos’s version, that a credit card had been proffered. Nevertheless, he preferred Mr Christos’s account of the clothing worn by Mr Canterbury at the relevant time. In reaching that conclusion in the absence of evidence from relevant witnesses, the Arbitrator concluded that the employer acted unreasonably.
The Arbitrator found that the employer’s reliance on evidence that had not been made available to Mr Canterbury either verbatim or in summary form, which evidence was relied upon by the employer to uphold the complaint, was unreasonable in the circumstances.
At [55]–[58], the Arbitrator found that the facts as found by the employer were inconsistent with the allegations that had been put to the worker on 3 February 2010. The finding that he was not “seen to be” making payment either by cash or by credit card had not been put to him and denied the worker an opportunity to respond to the allegations framed in that way. The complaint he in fact responded to was framed in a different way, namely, that no payment was made either by cash or by credit card for the items received. This, the Arbitrator found, changed the complexion of the complaint and denied the worker an opportunity to respond to the allegation that was found to be proven.
The employer’s finding that no credit card was seen to be exchanged was not reasonably open, as it was inconsistent with Mr Canterbury’s evidence, the evidence of the flight attendant who took the credit card, and the evidence of Mr Canterbury’s colleague who was sitting next to him and corroborated his evidence.
Mr Sheehan did not find that no credit card was exchanged with the crew. His finding was that no payment had been seen to be made. The Arbitrator found that the evidence merely established that the credit card had not been debited, but there was no evidence that Mr Canterbury connived in that failure. His passing a note to the cabin crew with the name of Mr Christos on it was not found to be evidence of connivance, but, on the balance of probabilities, was more likely to be consistent with alerting the crew to the presence of Mr Christos, in order to ensure that they performed their duties correctly, including the duty to receipt payment from him.
The Arbitrator found that the only way to fix Mr Canterbury with blame was to impute to him knowledge of the non-payment. The evidence that the cabin crew did not debit his card was not put before Mr Canterbury. Had it been put to him, he would have understood that the essence of the allegation was that he either knew, or ought to have known, that his account had not been debited and that he should have taken further steps to pay. The Arbitrator found that neither that allegation nor the evidence upon which it was based was ever put to Mr Canterbury and the failure to do so was unreasonable on the part of the employer.
The Arbitrator concluded that the actions of the employer with respect to discipline were unreasonable for the reasons given above.

SUBMISSIONS, DISCUSSION AND FINDINGS

Did the Arbitrator correctly identify the issues?

At [31] of the Reasons, the Arbitrator stated:
“The employer informed the Commission that it relied solely on the investigation by Mr Sheehan and its determination and the notification of that determination to Mr Canterbury by letter dated 3 February 2010.”
Jetstar submits that it did not take such a position and did not inform the Arbitrator of such. It submits that the Arbitrator confused the positions adopted by the respective parties and that this “undermined his decision”.
The worker’s complaints initially concerned three matters. The first complaint was of bullying by Ms Boyle, the second was Ms Boyle’s questioning of him in relation to irregularities concerning his sick leave, and the third was in relation to the allegations and findings with respect to breaches of company policy in that he consumed alcohol and food while travelling as a paxing passenger on flight JQ521 on 4 December 2009.
As the matter unfolded before the Arbitrator, the worker’s allegations of any bullying or harassment by Ms Boyle concerning the sick leave issue were not pressed by him as a contributing cause of his injury.
The only issue remaining for the Arbitrator to determine was whether the employer’s defence under s 11A of the 1987 Act was made out concerning its handling of the allegations of breach of company policy by the worker on 4 December 2009. This was confirmed by the following exchange that took place at T3.28:
“ARBITRATOR: Well, gentleman is 9A an issue between you at all?
MR BRENNAN: No
MR FLETT:Not [sic] – the only allegation now is the allegation of misconduct on the aeroplane on the 4^th of December and that’s all we are dealing with today.”
In order to rely on the s 11A defence, Jetstar needed to rely on the investigation undertaken by Mr Sheehan. Conversely, the worker contended that Mr Sheehan’s report, when evaluated objectively, established that the employer’s actions were unreasonable. Both parties presented arguments to the Arbitrator with reliance upon Mr Sheehan’s report.
Notwithstanding the Arbitrator’s articulation of the issue at [31] of the Reasons, having regard to the whole of the Arbitrator’s decision, it is clear that the case was argued and determined on the basis of the employer’s defence under s 11A of the 1987 Act concerning the disciplinary action taken following the allegations of breach of company policy by the worker on 4 December 2009. The Arbitrator’s consideration of the issues was not limited to Mr Sheehan’s investigation; he evaluated all the relevant evidence, including Ms Elphinstone’s evidence and the evidence of eyewitnesses to the events of 4 December 2009.
While the worker’s concession in relation to the bullying allegation relieved the employer of proving that Ms Boyle’s actions were reasonable within the meaning of s 11A of the 1987 Act, it did not relieve it of the onus of establishing that the worker’s psychological injury was wholly or predominantly caused by reasonable action taken with respect to discipline. The contribution, if any, arising from the conduct of Ms Boyle concerning the sick leave issue was relevant to a determination of the whole or predominant cause of the worker’s injury and, for that reason, I reject Jetstar’s submission that the actions of Ms Boyle were not relevant.
Although the Arbitrator’s articulation of the issues at [31] may not have been as precise as it could have been, there is no force in the submission that it undermined his decision and I reject it.

Whole or predominant cause of injury

Jetstar submits that there was no dispute between the parties that the worker’s injury was wholly or predominantly due to actions of the employer with respect to discipline. It submits that the worker conceded that the employer’s actions that allegedly caused his injury were actions with respect to discipline for the purposes of s 11A. Consequently, it submits that the Arbitrator was in error in making any findings on the causation issue, as it was not a matter before him for determination.
Mr Canterbury submits that the flaw in Jetstar’s submissions is its failure to comprehend that Jetstar had the onus to establish the defence under s 11A. That included an onus to prove that the injury resulted wholly or predominantly from disciplinary action.
The Arbitrator identified the issue at the outset of the proceedings in this way:
“But, more importantly, it [Ms Elphinstone’s evidence] goes to the question of predominant cause in s 11A and unless I’ve misconstrued the section, the insurer in order to succeed must convince me that the – that one of those, namely the warning letter, is the predominant at least cause. And based on that, that evidence subject to what Mr Flett might tell me, does not seem alone to establish that.” (T4.53)
Mr Canterbury’s solicitor, Mr Brennan, raised the issue of the employer’s onus of proof at T7.32:
“ARBITRATOR: Well, we’re agreeable that it’s discipline or performance appraisal so you may as well tell me why it’s not reasonable.
MR BRENNAN: Well, he’s got to prove that it is wholly or predominantly caused.
ARBITRATOR: Yeah [unclear 0:11:21.6] that, yes.”
Mr Brennan raised the issue again at T19.20, putting Jetstar firmly on notice that “whole or predominant cause” of the worker’s injury was a live issue in the proceedings:
“And the question then becomes whether my friend has a defence. He has to prove that it wholly or predominantly caused the injury which is conceded and then he has to prove that the employer’s actions, which they took, were reasonable. It’s my submission they weren’t for a number of reasons.”
The onus of proof of establishing any of the matters under s 11A of the 1987 Act falls on the employer (Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 (Sinclair): Pirie v Franklins Ltd [2001] NSWCC 167; 22 NSWCCR 346).
Mr Canterbury did not concede that his injury was wholly or predominantly due to actions of the employer with respect to discipline concerning its investigation and findings of breach of company policy on 4 December 2009. Mr Canterbury merely withdrew the allegation that his psychological injury was caused by allegations of bullying and harassment at the hands of Ms Boyle. As I have said, in dealing with Jetstar’s first submission, that concession did not relieve Jetstar of the requirement to prove the elements of its s 11A defence, including that its actions with respect to its investigation and findings concerning the allegations arising from the in-flight events on 4 December 2009 were the whole or predominant cause of the worker’s psychological injury and that those actions were reasonable.
At (T4.4), the Arbitrator stated that Ms Elphinstone’s report, upon which Jetstar relied, while concluding there was only one “major causative factor”, in fact identified three causes of the worker’s condition, namely:
(a)     The receipt of the letter of outcome of the investigation on 3 February 2010;
(b)     The administration of a second formal warning;
(c)     Management’s requests for missing medical certificates, leading to the possibility of identifying irregularities in Mr Canterbury’s sick leave.
Although, it may be seen that both (a) and (b) are related to the employer’s disciplinary action, (c) is not.
The Arbitrator went to some lengths to alert the parties that one of the issues for determination by him was whether the outcome of the disciplinary action notified to the worker on 3 February 2010 was the whole or predominant cause of his psychological injury. The Arbitrator stated at T5.21:
“ARBITRATOR: I’m simply alerting you to what seems to me to jump out at me. One of the issues I’ll have to determine here today is what - whether the impugned finding of the 4^th of February 2010 was the predominant.”
And at (T6.16), he added:
“ARBITRATOR: And it is only discipline you rely on - actions with respect to discipline, Mr Flett?
Mr Flett: Yes.”
For these reasons, I reject Jetstar’s submission that the causation issue was not a matter that was before the Arbitrator for determination.
The Arbitrator accepted Ms Elphinstone’s evidence that the worker’s condition was due, at least in part, to Ms Boyle’s request for the outstanding medical certificates on 29 January 2010. He found that that request was not part of any disciplinary action or proposed disciplinary action. He was satisfied that it was no more than a routine request to support an application for sick leave. It was for that reason that he found that Ms Elphinstone’s opinion did not support the proposition that the predominant cause of the worker’s injury was action taken or proposed to be taken with respect to discipline. He concluded that the injury resulted from a number of stressors from at least 29 January 2010 and up to an including the receipt of the notice on 3 February 2010.
On the question of what was the whole or predominant cause of the worker’s psychological injury, Jetstar submitted:
(a)     The Arbitrator erred by relying on the evidence of Ms Elphinstone to the exclusion of other relevant evidence to determine the whole or predominant cause of the worker’s psychological injury;
(b)     The Arbitrator relied on the evidence of Ms Elphinstone to find that there was at least one other cause for the worker’s condition (in addition to disciplinary action of the employer), namely, Ms Boyle’s request of 29 January 2010 for a medical certificate from the worker;
(c)     The Arbitrator interpreted Ms Elphinstone’s opinion, notwithstanding her observation that there was only one major causative factor to Mr Canterbury’s condition, as identifying two causative factors, namely, the letter of 3 February 2010 and Ms Boyle’s request for a medical certificate on 29 January 2010. Jetstar submits that that is an incorrect interpretation of Ms Elphinstone’s evidence and her evidence is consistent with there being only one major causative factor, namely, the employer’s disciplinary action;
(d)     Whether Ms Elphinstone considered the request for medical certificates to be a causative factor of the worker’s injury is irrelevant because he elected not to rely upon that matter in terms of causation;
(e)     Ms Elphinstone did not rank or compare the relative contribution of the causative factors. Jetstar submits that, if the Arbitrator concluded that there was more than one causative factor, he should have considered the other available evidence to determine the extent to which each factor was causative of the worker’s injury, and that he did not attend to that task;
(f)      Evidence relevant to the evaluation included the fact that the worker ceased work immediately after receiving the letter of 3 February 2010. Also relevant is the fact that the worker has not adduced any medical evidence to suggest that the injury was not wholly or predominantly due to the employer’s disciplinary action;
(g)     The available evidence clearly indicates that the employer’s disciplinary action regarding the 4 December 2009 incident was the whole or predominant cause of the worker’s injury;
(h)     The Arbitrator’s acceptance of the missing medical certificate issue as a causative factor to the worker’s injury does not mean that the injury was not wholly or predominantly caused by the disciplinary action.
In response to these submissions, the worker submits that the only expert evidence was that of Ms Elphinstone, which, when read carefully, identified a number of causes for the worker’s psychiatric injury. In response to the numbered submissions above, the worker’s only submission is to repeat that Jetstar has the onus to prove the s 11A defence. Ms Elphinstone’s report was flawed and difficult to understand, and it was open to the Arbitrator to assess the matter in the way he did.
I reject the submission that the Arbitrator’s interpretation of Ms Elphinstone’s evidence was “an incorrect interpretation” of the evidence. Ms Elphinstone’s conclusions are extracted at [74] of this decision. Her conclusions are ambiguous because she uses the expression “one major causative factor” on the one hand, but then outlines a series of causative factors as previously discussed. She said:
“such performance issues [plural] which have placed Mr Canterbury under close scrutiny of his superiors and appear to have been linked to the onset of Mr Canterbury’s distress.” (emphasis added)
At least one of those factors concerned a management issue that had nothing to do with discipline. That deficiency in the evidence was a matter that concerned the Arbitrator at the outset. In fairness to Jetstar, he raised his concern early in the proceedings (see [113]). Notwithstanding the Arbitrator flagging the issue, Jetstar made no attempt to clarify the evidence, leaving it in a somewhat unsatisfactory state. It was open to the Arbitrator to interpret Ms Elphinstone’s evidence as an expression of opinion that the employer’s challenge to the worker concerning the alleged irregularities in his reported sick leave was a factor that contributed to his injury.
I do not accept Jetstar’s submission that the Arbitrator erred by relying on the evidence of Ms Elphinstone to the exclusion of other relevant evidence to determine the whole or predominant cause of the worker’s psychological injury for the following reasons. First, the only objective evidence Jetstar submits was not taken into consideration by the Arbitrator was the fact that Mr Canterbury ceased duty immediately after receiving the letter notifying him of the outcome of the investigation on 3 February 2010. That fact was not overlooked by the Arbitrator. He referred to it at [7] of the Reasons, noting that, on 4 February 2010, Mr Canterbury went on sick report and that it was common ground that at about that time he suffered a psychological injury.
Second, the Arbitrator found that Mr Canterbury’s psychological injury resulted from the cumulative effect of various stressors, only some of which were related to the disciplinary action. While I accept that there is a temporal connection between the completion of the disciplinary process and the worker going off work, the temporal connection does not, of itself, demonstrate that the worker’s psychological injury was wholly or predominantly due to the effects of the disciplinary action.
At page 10 of the Application, Mr Canterbury stated in his statement that his distress and the leave taken from work were related to the formal warning letter received on 23 December 2009, together with the outcome letter received on 3 February 2010 regarding his alleged breach of company policy. He went on to state a perception that the process had been fuelled by his manager, and that he felt victimised and bullied by her. Although ultimately Mr Canterbury did not rely on the bullying allegation to support his claim, it was open on the evidence for the Arbitrator to conclude his injury was due to the cumulative effects of stressors, at least one of which was not part of a disciplinary process. The finding was consistent with the worker’s evidence and the evidence of Ms Elphinstone, who were the only witnesses who gave evidence on that issue.
For the reasons stated at [109], I reject Jetstar’s further submission that Ms Elphinstone’s consideration of the sick leave issue was an irrelevant factor in determining the whole or predominant cause of the worker’s injury on 4 February 2010.
Jetstar’s reliance on the worker’s alleged failure to elicit any medical evidence as to the cause of his psychological injury in the proceedings before the Arbitrator is not apposite. Jetstar admitted the worker suffered an injury in the course of his employment to which his employment was a substantial contributing factor. There was no onus on Mr Canterbury to produce any further medical evidence to support his claim. The issues before the Arbitrator concerned the employer’s s 11A defence, and the onus of proof on that issue was squarely on Jetstar.
The Arbitrator’s findings on this issue do not demonstrate error. It was open on the evidence for the Arbitrator to find that there was an accumulation of stressors that led to the worker’s psychological injury. That finding was consistent with Ms Elphinstone’s evidence as to the causative elements giving rise to the injury.
While it may have been theoretically open to the Arbitrator to find that, notwithstanding the acceptance of the missing medical certificate as a causative factor, the actions with respect to discipline were the whole or predominant cause of the injury, the Arbitrator’s failure to make that finding discloses no error. It was open to the Arbitrator to find that, as Ms Elphinstone found there to be more than one cause of the injury and, as she failed to rank the relative importance of each cause, the employer had failed to establish that the actions taken with respect to discipline were the whole or predominant cause of the injury. Given the evidence and the way the parties presented the case, this finding discloses no error.
There are two further deficiencies in Ms Elpinstone’s report. First, Ms Elphinstone concluded that the worker’s injury was due to “formal performance management”. Section 11A of the 1987 Act does not refer to “performance management”. It refers to, among other things, “performance appraisal”, which is arguably a much narrower concept. It is important in s 11A cases that the evidence is directed to the terms of the legislation. Second, her opinion on causation was that the performance management was “a major causative factor”. To succeed with a defence under s 11A, an employer must establish that the injury was “wholly or predominantly caused” by the conduct on which it relies. An event may well be a “major cause” without being the whole or predominant cause. As the parties have made no submissions on these points, I do not base my decision on them. However, they are important points for practitioners to bear in mind.

Were the actions of the employer reasonable?

If my findings with respect to the whole or predominant cause of the worker’s injury are wrong, I make the following findings with respect to whether the actions taken by Jetstar with respect to discipline were reasonable.
Jetstar submits the Arbitrator erred in finding that its actions with respect to discipline were unreasonable for the following reasons:
(a)     by failing to consider the appellant’s case or, at the very least, failing to give due consideration to the appellant’s case (Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 (Raulston) at [19] and [27]), the Arbitrator erred in finding that the employer’s disciplinary action was unreasonable;
(b)     by making no mention at all in his determination of the employer’s Alcohol and Other Drugs Policy (AODP) and Standards and Service Guide, nor the worker’s alleged breaches of the policy, notwithstanding that that was the very basis upon which Jetstar disputed liability;
(c) the Arbitrator’s consideration of “reasonableness” in respect of the s 11A defence focused almost entirely on the reasonableness of the employer’s investigation process regarding the 4 December 2009 incident, particularly in investigating whether the worker was in uniform at the time he consumed alcohol;
(d)     by failing to give any consideration to its case that the worker’s consumption of alcohol breached the employer’s AODP regardless of whether he was in uniform at the time, and that the failure to obtain a receipt breached the employer’s Standards and Service Guide;
(e)     by taking an irrelevant matter into account, namely, whether other witnesses could attest to the worker’s uniform status, as the consumption of alcohol was a breach of the employer’s AODP regardless of whether he was in full or partial uniform or out of uniform at the time;
(f)      by failing to accept that the alleged breaches of policy were proven by the worker’s own admission, namely, that he consumed alcohol and that he did not obtain a receipt for the items purchased on the flight;
(g) by failing to give consideration to the employer’s policies, the worker’s breach of the policies, and the significance of these matters in relation to his assessment of the “reasonableness” issue under s 11A, which Jetstar submits were fundamental matters for consideration in determining whether the employer’s disciplinary action was reasonable under s 11A;
(h)     by failing to exercise his duty to determine the matter with due consideration of both parties’ cases, including the grounds and evidence upon which both parties’ cases were based, the Arbitrator denied Jetstar natural justice and procedural fairness. The Arbitrator’s errors deprived Jetstar of the possibility of a successful outcome (Raulston at [30]).
The worker submits that that Arbitrator applied the correct legal tests to determine whether Jetstar’s actions were reasonable in the circumstances (Doyle).
The worker submits that the Arbitrator carried out a detailed examination of the investigative process which led to the final warning letter on 3 February 2010. The Arbitrator found that the investigation was flawed, in that there was a denial of natural justice and some of the allegations in the warning letter were not made out by the evidence. Not only were all of these findings open to the Arbitrator on the evidence, but the worker submits that they were compelling.
Mr Canterbury submits that the warning letter must be examined in context. He submits that the following facts were not in doubt:
(a)     The worker was not, in fact, “on duty” when he consumed the alcohol;
(b)     The worker was not rostered on duty following the flight in question;
(c)     The worker consumed a minimal amount of alcohol which was socially acceptable;
(d)     The worker consumed alcohol in front of at least four other crew members, including a senior manager, Mr Christos. No-one advised Mr Canterbury that he was breaching company policy;
(e)     Other members of staff have attested to the fact that they understood that the consumption of alcohol was permissible in the circumstances;
(f)      The worker was, for all intents and purposes, dressed in civilian clothing;
(g)     Without knowledge of the employee’s code of conduct, a “reasonable man” would not consider the worker’s behaviour as anything other than acceptable;
(h)     There was no evidence led by Jetstar of misconduct by the worker prior to this occurrence, other than a very minor occurrence some time earlier, which was explained by him;
(i)      Accepting Jetstar’s interpretation of their drug and alcohol code of conduct, the worker’s written responses to the allegations established that his actions were not deliberate, but a misunderstanding of the drug and alcohol code of conduct, exemplified by Jetstar’s reference to Operating Manual 12: “Alcohol may be consumed if positioning on duty in civilian clothing and there is a minimum of eight hours prior to the next operational sector”.
The worker submits that, if there is any misbehaviour, the cause of it may be placed at the feet of Jetstar for failing to properly instruct their employees of their interpretation of the AODP under the workplace agreement of 2006, which contains 30 pages of tightly-spaced policies and other materials.
Mr Canterbury submits that Jetstar’s response to his consuming a small amount of alcohol during the relevant journey should have led to in-service training to clarify the ambiguity surrounding its drug and alcohol policy. The issuing of the warning letter was, in the circumstances, unreasonable and drafted in a way that was likely to induce a severe emotional reaction in the recipient, which unfortunately, in this case, provoked a psychiatric response. He submits that the workplace agreement in relation to the issue is confusing and internally inconsistent and a fair reading of the document would lead employees to form different subjective assessments of what their behaviour should be in the situation.

Mr Canterbury submits that, considering the definitions of “deadhead” and “duty” as per the workplace agreement, leads to a conclusion that “duty” when used in relation to “deadheading” means that employees will not have to pay for their air travel and will be paid for travelling time, but are not required to carry out work duties.
Mr Canterbury submits that Jetstar’s AODP states, on the one hand, that the consumption of alcohol by employees or contractors on duty is prohibited, yet it also sanctions the consumption of alcohol with the prior approval of “department general managers”. Leaving aside the terms of Operating Manual OM12, the worker submits that the application of the policy is confusing.
Mr Canterbury points to the inconsistency of Jetstar submitting, on the one hand, that whether or not he was in uniform is irrelevant, and yet, on the other hand, focusing a good deal of the investigation on that very issue.
Mr Canterbury submits that the Arbitrator’s determination that the action taken by Jetstar was unreasonable was a correct decision.
I do not accept Jetstar’s submission that the Arbitrator erred by failing to fully consider its case. Jetstar complains that the Arbitrator made no mention at all of either the employer’s Alcohol and Other Drugs Policy or its Standards and Services Guide. While I accept that the Arbitrator did not make specific reference to either of those documents in his determination, it is clear that his analysis of the evidence carefully considered whether those policies had been breached in the circumstances alleged. The Arbitrator’s references at [46], [48] and [49] in reference to whether or not the worker was in uniform at the relevant time are clearly directed towards evaluating whether the employer’s determination of the allegations of breach of the AODP was reasonable having regard to the evidence.
As the Arbitrator correctly observed, whether an employer’s action was “reasonable” within the meaning of s 11A(1) is an objective test. Whether an employer’s action was “reasonable” requires an objective assessment by the Commission of the reasonableness of the action of the employer. If the Commission takes a view that the action taken by the employer is not reasonable in all the circumstances, the employer cannot rely on s 11A merely because it held a genuine belief, based on reasonable grounds, that the action was reasonable (Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 at [50]).
The employer complains that the Arbitrator’s consideration of the matter focused almost entirely on the investigative process regarding the 4 December 2009 incident, to the exclusion of a consideration of whether its policies had been breached per se. I reject the submission for the following reasons.
In order to evaluate the reasonableness of the employer’s conduct with respect to the investigation, it was incumbent upon the Arbitrator to consider all of the circumstances surrounding the allegations of breach of company policy by the worker, including the steps taken in the investigative process.
The Arbitrator evaluated Mr Canterbury’s complaint that the steps taken by the employer to investigate the allegations were unreasonable at [46]–[54] of the Reasons. He concluded that the steps taken by the employer to investigate and determine the allegations against Mr Canterbury were unreasonable.
Jetstar submits that the Arbitrator erred by failing to give due regard to its case that the disciplinary action was justified by reason of the worker’s breach of the AODP regardless of whether or not he was in uniform. I reject that submission. A breach of the AODP could only be substantiated, in the circumstances, if the worker was in uniform. Whether the worker was in uniform was highly relevant to Jetstar’s disciplinary action, indeed it was a focus of the investigation. The Arbitrator’s findings on whether the worker was in uniform was not an irrelevant matter as submitted by Jetstar; indeed, it was a critical matter for the Arbitrator to determine.
The Arbitrator concluded that Jetstar’s treatment of the evidence, and its findings concerning whether the worker was in uniform at the time of the alleged breaches, was unreasonable. The reasons given by the Arbitrator, which I have summarised at [90]–[93], provide a solid basis for that conclusion.
I accept Mr Canterbury’s submission that Jetstar’s policies and procedures with respect to consumption of alcohol in-flight whilst deadheading are confusing and contradictory. Operating Manual OM 12 permits the consumption of alcohol while on duty, provided the worker is not in uniform. Ms Sornsiri said that Jetstar’s training addressed the question of the consumption of alcohol while deadheading and staff were instructed that consuming alcohol was permissible provided they could not be identified by the travelling public as a staff member. Her evidence, which was uncontradicted, confirmed that the consumption of alcohol while deadheading was not only permissible in the circumstances she described, but was a common occurrence at all levels of staff including pilots.
The ambiguity in the company’s policies and procedures should have been apparent to it at the very latest when the company considered Mr Canterbury’s internal appeal. His union representative, Mr Sanderson, raised that very matter with Jetstar. In response, Ms Cann stated that, to the extent that there was conflict between the drug and alcohol policy and OM12, it was Mr Canterbury’s obligation to have it clarified at the time that he completed his training. The obligation was on Jetstar to communicate its policies and procedures in clear and unambiguous terms. Placing the onus on the worker to clarify Jetstar’s contradictory and confusing policies was an unreasonable response to that ground of the worker’s internal appeal. Even if the onus was on the worker to clarify the issue during his training, it would not have assisted him for the reasons explained by Ms Sornsiri. For these reasons, I reject Jetstar’s submission that the worker’s admission with respect to the consumption of alcohol during the flight was, in itself, sufficient to support a finding of breach of company policy.
Breach of Jetstar’s AODP and the Standards and Service Guide was dependent on the worker being on duty at the time of the alleged offences. The question of whether Mr Canterbury was on duty at the relevant time is vexed. The definition of deadhead travel in the Jetstar Airways and FAAA Workplace Agreement 2006 states that, for the purpose of the agreement, deadhead travel time will be regarded as duty. “Duty” is defined in the Agreement as the tasks or series of tasks that a flight attendant is required to perform at the direction of Jetstar under the terms of the agreement. The employer argues that Mr Canterbury was on duty until 15 minutes after the flight touched down in Melbourne. However, there is no suggestion that Mr Canterbury was required to undertake any operational duties during the relevant flight. His evidence is that he was unable to perform operational duties during the flight to Melbourne as doing so would have exceeded the maximum number of hours that he was legally able to undertake duty. The fact that he was not undertaking operational duties at the relevant time or that he was not required to perform duties again until the following day is unchallenged.
Jetstar submits that, because the worker was on duty during the flight, he was therefore prohibited from drinking irrespective of whether or not he was in uniform. I reject this submission because the AODP expressly authorises the consumption of alcohol “on duty travel”. There is no definition of “duty travel” in evidence and Jetstar has taken no steps to clarify the difference between normal duty and travel duty. However, given the context in which it appears in the AODP, I infer that staff are regarded as on travel duty when undertaking deadheading or paxing travel, in which case, Mr Canterbury was not on duty in the conventional sense, but was on travel duty and was therefore permitted to drink alcohol during the flight, provided he was not in uniform (refer [31]).
Jetstar’s argument that the worker was in breach of the employer’s Standards and Service Guide is only relevant to the allegation that Mr Canterbury failed to obtain a receipt for the items he purchased. The Arbitrator found that Jetstar’s ultimate finding following its investigation was that “no payment, either by cash or credit card was seen to be made at the time you obtained these goods …” The Arbitrator concluded that finding was against the evidence and the weight of the evidence. Jetstar was well aware there were two witnesses and Mr Canterbury’s own evidence all corroborating the fact that he did hand over his credit card at the time the purchases were made. In light of that evidence, Jetstar’s reliance on the contrary evidence by Mr Christos alone was unreasonable. Moreover, its finding preferring Mr Christos’s observations to that of three other witnesses was unexplained. For these reasons, the Arbitrator’s finding that Jetstar’s conclusion that no payment was seen to be made was not supported by the evidence and was unreasonable is soundly based and does not disclose error.
The Arbitrator found that the employer’s conduct concerning its treatment of the receipt issue was unreasonable for a further reason. The allegation against Mr Canterbury in the initial charges on 23 December 2009 was that “no payment was made”. The ultimate finding however was that “no payment, either by cash or credit card was seen to be made at the time you obtained these goods …” Mr Canterbury was not given an opportunity to respond to the allegation in these terms.
The Arbitrator accepted the evidence established that Mr Canterbury handed over his credit card and that there was no evidence to establish that he contrived to ensure that his credit card was not debited. In those circumstances, the failure to obtain a receipt is not something for which the worker could be held responsible. The evidence established that the worker volunteered to pay for the goods obtained by him and his colleague, and handed over his credit card to the operating crew. The Arbitrator concluded that the employer should have put the allegation to Mr Canterbury in terms that he ought to have known that his card had not been debited and ought to have taken further steps to pay, thus giving him an opportunity to respond to the allegation. The failure to put the allegation to him, with the evidence of the operating crew, was unreasonable. That conclusion was open to the Arbitrator on the evidence and does not disclose error.
The Arbitrator further found that there was no evidence that, in the absence of the worker being invited to sign for the purchases, he must have known that that his account had not been debited. This finding was also open to the Arbitrator. For these reasons, I reject the submission that the Arbitrator failed to have regard to Jetstar’s Standards and Service Guide. He clearly considered it, but found, for reasons given, which I agree with, that the employer’s conduct in dealing with the allegation of breach of the Guide was unreasonable.

CONCLUSION

For the reasons given, I conclude that the Arbitrator did not err in finding that the disciplinary action taken by Jetstar following allegations of breach of company policy was not the whole or predominant cause of the worker’s psychological injury. Nor has any error been demonstrated in the Arbitrator’s reasoning or conclusions that Jetstar’s actions with respect to discipline were unreasonable.

DECISION

The Arbitrator’s determination of 4 May 2011 is confirmed.

COSTS

The appellant employer is to pay the worker’s costs.

Judge Keating

President
22 September 2011

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE