Kassabian v IPN Medical Centres t/as Sonic Health Group

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kassabian v IPN Medical Centres t/as Sonic Health Group [2022] NSWPIC 75
APPLICANT:	Jeannette Kassabian
RESPONDENT:	IPN Medical Centres t/as Sonic Health Group
MEMBER:	Paul Sweeney
DATE OF DECISION:	23 February 2022
CATCHWORDS:	WORKERS COMPENSATION - Employer denies claim for closed period of compensation solely on the basis of section 11A(1) of the Workers Compensation Act 1987; only issue for determination was whether the respondent’s actions with respect to discipline in investigating a medical practice manager were reasonable; Held- that while many aspects of the respondents disciplinary procedure was exemplary, prohibiting the worker from communicating with medical practitioners in the practice was not reasonable; these medical practitioners may have been able to provide evidence to rebut the allegation that the applicant had breached the respondent’s Safe & Quality Use of Medications Policy; award for the worker.
DETERMINATIONS MADE:	1. The applicant suffered psychological injury arising out of and in the course of employment which is deemed to have occurred on 4 June 2021 for the purposes of the Workers Compensation Act 1987 (1987 Act). 2. The respondent has not established that the respondent’s injury was wholly or predominantly caused by reasonable action with respect to discipline in accordance with section 11A (1) of the 1987 Act. 3. The applicant was totally incapacitated as a result of the injury between 24 September 2021 and 1 December 2021. 4. Order the respondent to pay the applicant the sum of $1,068.78 per week pursuant to section 37 of the 1987 Act during this period. 5. Credit to the respondent to payments made.

STATEMENT OF REASONS

INTRODUCTION

Prior to 28 May 2021, Jeannette Kassabian (the applicant) was employed by IPN Medical Centres t/as Sonic Health Group (the respondent) as the practice manager of the Edgecliff Medical Centre. Another medical practice, Australian Skin Cancer Clinics( ASCC), owned by the respondent operated from the same premises. The two businesses shared a reception desk.
On 26 May 2021, the applicant was informed by Jane Carpenter, the respondent’s business manager, that allegations of inappropriate conduct had been made against her by the business manager of ASCC, Belinda Smith, and two former employees of the Edgecliff Medical Centre who were now employed by ASCC.
On 28 May 2021, the applicant received a letter advising her that there would be an investigation into the allegations of misconduct made by Belinda Smith, Aimee Fea and Matthew Williams. The summary of the allegations read as follows:
“In summary it is alleged that you acted inappropriately towards Belinda Smith, Aimee Fea and Matthew Williams following Aimee’s appointment to the Practice Manager ASCC Edgecliff role, in breach of our Workplace Behaviour Policy. Furthermore, you provided details of this confidential complaint to nine doctors at Edgecliff Medical Centre, following our conversation where I advised you of your requirement to maintain confidentiality.”
On 4 June 2021, the applicant was advised in writing that “additional allegations” of misconduct had come to light. Ms Carpenter advised that she was in the process of collating the additional allegations and would provide full details of the allegations no later than Wednesday 9 June 2021. By that letter the applicant was also advised that due to the seriousness of the allegations she was to be suspended on full pay, pending the conclusion of the investigation, effective from 4 June 2021.
Following receipt of this correspondence, the applicant sought medical treatment. She was certified unfit for work until 1 December 2021. It is common ground that she suffered a psychological injury arising out of and in the course of her employment.
When the matter came on for conciliation and arbitration on 31 January 2022, Mr Hickey, of counsel represented the applicant and Mr Robison, of counsel, represented the respondent. The conciliation conference and arbitration hearing were conducted by telephone. I was informed by counsel during the conciliation conference that the parties were unable to reach a mutually satisfactory resolution of the claim.
While the parties agreed that the applicant’s psychological injury was wholly or predominantly caused by the actions of the respondent with respect to discipline, the respondent asserted and the applicant disputed that these actions were reasonable. I am satisfied that the parties, who were represented by experienced lawyers, had ample opportunity to resolve the dispute prior to and during the conciliation conference. I apprehend, however, that an issue of principle has precluded the resolution of this short, closed period claim.

EVIDENCE

The documents before the Personal Injury Commission (Commission) are:
(a) the Application to Resolve a Dispute and the documents attached, and
(b) the Reply and the documents attached.
Both Mr Hickey and Mr Robison made general objections to hearsay evidence contained in the statements of the various witnesses. They each submitted that the Commission would give little or no weight to such evidence. Otherwise, there was no objection to any of the material referred to above. There was no application to adduce further written or oral evidence.

SUBMISSIONS

The submissions of the parties are recorded and I do not propose to reiterate each of the extensive arguments of counsel in these short reasons. However, it is appropriate to note that Mr Hickey argued the allegations made by the respondent as trivial. They related to what he characterised as a strenuous exchange of views between the practice manager of the respondent’s Edgecliff Medical Centre and the former employees of that practice, who worked for another branch of the respondent’s operation, which shared the same premises.
In the applicant’s submission, the allegations should have been dealt with in a less confrontational manner by discussion and mediation between the parties rather than by a full-blown inquiry which involved the suspension of the applicant with its obvious potential to undermine her role as the practice manager.
Mr Hickey also addressed a number of alleged inconsistencies in the respondent’s evidence. He submitted that it was inappropriate for Ms Carpenter to conduct the inquiry given her previous “frosty” relationship with the applicant. He asserted that it was inappropriate to preclude the applicant from her communicating with fellow employees as this effectively prevented her from obtaining evidence which might assist in rebutting the allegations made by the complainants in the case.
Mr Robison stressed the respondent’s obligation to consider the welfare of all of its employees including the complainants and the other staff members at the Edgecliff Medical Centre. In those circumstances, the respondent’s actions including the demand for confidentiality could be seen to be reasonable.
In considering the course that the respondent adopted its obligations to the complainants and other employees needed to be borne in mind. It was not to the point to say that there were alternative courses of action available, the issue for determination by the Commission was whether the respondent’s actions were reasonable.
Mr Robison highlighted those aspects of the employer’s actions which favoured a conclusion of reasonableness including the payment of the worker during her period of suspension from employment, the provision of psychological support and, importantly, the respondent’s assertion that it had not formed any views as to the accuracy or truthfulness of the allegations. Rather, that as the allegations were serious an investigation into their truthfulness was necessary.
Both parties referred to the decision of the Court of Appeal in Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie).
It will be necessary to return to the submissions of counsel in resolving the issue of reasonableness. First, however, it is necessary to consider the documentary evidence, the evidence of the applicant and the evidence of those witnesses who are critical to the respondent’s defence in this matter. What follows is not intended to be a comprehensive survey of the evidence. Rather, I set out the salient points of the evidence so that the submissions of counsel and the way in which the Commission has resolved this dispute might be understood.
It is appropriate to commence with the correspondence from Ms Carpenter to the applicant dated 28 May 2021 and 4 June 2021. After summarising the allegations, the letter dated 28 May 2021 from Ms Carpenter continued:
“Please understand that these are allegations only and that no views have been formed by the company as to the accuracy or truthfulness of the allegations.
These allegations are however serious and, if they are substantiated, could result in disciplinary action being taken against you, including termination of employment.
Investigation process
Due to the nature of the allegations, the company has a duty to conduct a formal investigation to determine whether or not the allegations are substantiated (and in turn whether you are in breach of any applicable laws, the terms and conditions of your employment and/ or any company policy).
The investigation will be primarily conducted by Jane Carpenter, Business Manager and supported by Rachel Kisbee HR Business Partner. Other members of the People & Culture Team and management team may also be involved in the process.
The investigation will involve interviewing potential witnesses to your alleged conduct and reviewing any other relevant evidence (eg emails and other documents).
You will also be interviewed and given an opportunity to respond to the attached allegations and any other evidence collected. The investigator will contact you in due course to set a time and place for this interview.
Following the conclusion of the investigation phase the investigator will make findings in relation to the allegations against you. We will notify you in writing of these findings and the actions we propose to take as a result. We will then provide you with an opportunity to respond before a final decision is made as to the action to be taken.
At this stage we anticipate that the investigation will take three to four weeks.
We will endeavour to keep you updated in the event of any substantial change to the anticipated process or timeframe.
Representation and support
During the course of the investigation you are entitled to be represented/supported by a person of your choosing (for example a friend, family member or union representative). Please let us know if there is a representative that you would like us to liaise with.
During this time the People & Development team is able to provide you with support. You may also wish to utilise IPN's employee assistance scheme, Assure. You can access Assure for confidential counselling services directly via 1800 808 374.
Confidentiality
Again I remind you, it is important that confidentiality is maintained during the investigation process so that reputations are protected and the investigation is not compromised. To assist in this respect please ensure that you do not discuss this investigation with anyone other than the investigator, your support person (where applicable), the People & Culture team and Jane Carpenter. In particular you must not discuss the situation with the complainant, any of the witnesses involved in the matter or any other company employee. You are of course free to discuss the situation with your immediate family members and/or any legal or medical advisers.

Further information
Further information in relation to the company's approach to grievances generally can be found in our Grievance Policy and Procedure (a copy of which is attached).
If you have any questions or concerns in relation to the investigation process please contact myself or Rachel Kisbee
We will be in touch again in due course.
Summary of Allegations
In summary it is alleged that
On the 25 May 2021 you;
·• Spoke to Belinda Smith (Business Manager, ASCC) inappropriately during a phone conversation by raising your voice at her, accusing her of poaching your team member and abruptly "slamming" the phone down to end the call.
·Told Aimee Fea that she was not to attend any of her future rostered shifts with IPN, which was in retaliation to her accepting a position with the Australian Skin Cancer Clinic (ASCC).
·Told your Practice Manager Matthew Williams that he would no longer receive any shifts with IPN effective immediately, and his existing shifts would be cancelled, which was in retaliation to Aimee Fea's appointment.
·Told Matthew Williams that no assistance would be provided to Aimee Fea when she commences the role of Practice Manager at ASCC, in retaliation to her transfer to ASCC.

On the 26 May 2021 you;
·You provided details of Belinda Smith's confidential complaint to nine Doctors at the Edgecliff Medical Centre in the form of a letter of support you drafted and asked each of them to sign. This occurred after a conversation with your Business Manager where she advised you of your requirement to maintain confidentiality.”

The letter of 4 June 2021 relevantly read as follows:
“As a result of our investigations to date, additional allegations have come to light. In addition to the allegations set out in our letter on 28 May 2021 it is now also alleged that you have breached the Safe & Quality Use of Medications Policy and the Workplace Behaviour Policy.
At this stage we are in the process of understanding these additional allegations further and will be in a position to share with you the full details of the allegations no later than Wednesday, 9 June 2021.
Suspension
Due to the seriousness of the allegations and in order to assist with the investigation process, a decision has. been made to suspend you on full pay whilst the investigation is being completed. The suspension is effective from today's date.
During your period of suspension you must not undertake any work, enter the workplace or make contact with any employees (other than normal social contact) without my permission.
I will notify you when it is appropriate for you to return to work.
Confidentiality
We take this opportunity to remind you again of the importance of confidentiality during this investigation process (as discussed with you on the 26 May 2021 and set out in our letter of 28 May 2021).”
Annexed to the letter was an expanded summary of the allegations made by the respondents servants and agents against the applicant. It included the following:
“Breach of the Safe & Quality Use of Medicines Policy
Specific examples include allegations that:
a)in late 2020 and May 2021 you coordinated the ordering and the receipt of numerous samples of the prescription medication Contrave for your personal use.
b)you directed reception staff to bring these medication samples to your office rather than first to the Doctor who signed the request form, or to a nurse.
c)you took possession of this medication as a non-clinical staff member.
d)you stored this medication in an unsecured location within your office.”
This document also particularised at great length instances of “unwelcome and intimidating conduct towards employees during her employment as practise manager” in breach of the respondent’s Workplace Behaviour Policy. The applicant was required to attend an interview with Ms Carpenter and Ms Kisbee as part of the investigation of the allegations.

The applicant

The applicant’s evidence is contained in a series of answers she provided to an investigator retained by the respondent. Relevantly, the applicant describes her initial conversation with Jane Carpenter, the respondent’s business manager over the telephone on the morning of 27 May 2021. She states that she was advised that Belinda Smith had made a complaint in respect of an incident the day before. She was asked to prepare and send a file note of the incident. She continues:
“Belinda Smith works for ASCC. ASCC are tenants of the medical practice. Belinda was making the complaint on behalf of her employees Aimee and Matt. When the complaint was made I questioned whether the complaint was being treated as a tenant complaint or an employee complaint. I felt that this should have been a tenant complaint and treated as such.”
The applicant then recounts a further telephone call with Ms Carpenter on the afternoon of 27 May 2021 at which she enquired why “statements were attached to the file note provided by the applicant”. The account continues:
“Jane advised it is a formal complaint it should have been confidential. I advised her that she did not tell me that on the phone this morning. She responded ‘I should have been clearer’.
During this phone call Jane advised ‘they are wanting to make this a first and final but I will get them down to a file note’ I responded ‘first and final are they kidding’ she replied ‘the whole Daniella thing doesn’t help you here’
I said you keep saying ‘you keep mentioning Daniella all I did was hire an employee that did not work out’ Jane replied ‘she is causing us troubles behind the scenes that I can’t even tell you about’ I said ‘one thing has nothing to do with the other’ she responded ‘don’t worry I will get it down to a file note’”.
The applicant says that she received a number of calls “escalating in intensity” from Ms Carpenter during that week advising her of the progress of the matter with Human Resources (HR) then on 28 May 2021 the applicant received the first of the disciplinary letters set out above. The allegations included the fact that the applicant had spoken to doctors and they had provided her with statements. The applicant says that:
“I rang Jane and asked her why she would add this to the list of complaints, I had already explained what had occurred and she acknowledged that her phone call should have been clearer.
She advised me that I was to watch how I spoke to her and that she was my manager. I was upset. I told her that she pretended to be helping me and I feel like I’ve been tricked.”
Following this conversation, the applicant saw a Dr Smith, a general practitioner at the medical centre who “sent me home for one week with a sick leave certificate for acute anxiety”.
Then, on the following Friday the applicant received a call from Ms Carpenter who advised her that she was not to come to work on Monday due to “gross misconduct”. It was explained that contrave, an antidepressant prescribed to assist weight loss had been found in her drawer in breach of the respondent’s medication policy. The applicant continues:
“I explained that this was given to me by the doctors as a patient. I had a prescription in my medical records and they were giving me samples as they would any other patient.”
During this conversation the applicant says that Ms Carpenter also advised her that there “may also be some bullying complaints”. When she responded that she had never bullied anybody Ms Carpenter told her that she could not tell her the details “because I may not have enough to proceed”. The applicant says that she was quite distressed with what had occurred and she rang her doctor.
The applicant states that when she obtained the full list of allegations it contained “additional allegations that were clearly instigated by a person that had allowed their personal opinion of me bias the investigation [sic]”.
The applicant states that in her absence Ms Carpenter had searched through her office without permission and without her knowledge and had the “entire week to officially and unofficially question staff. She basically went on a one week fishing expedition.”
The applicant says that some of the allegations made by Theresa and Carina were addressed and resolved back in 2019 by Ms Carpenter’s predecessor. “This to me demonstrates vindictiveness on the investigator’s part”.

The applicant also states that she was distressed during the course of the week that she was off work on sick leave prior to being suspended by the persistent phone calls from Ms Carpenter. She says that she was feeling anxious. She was constantly crying and was not sleeping. She was diagnosed by her medical practitioner with acute anxiety.
She states that she was further humiliated by having to seek permission every time she visited her general practitioner at the IPN practice. She was told not to speak to doctors or staff and staff were instructed not to speak to her.
The applicant says that she was also denied access to her personal belongings. When she attended her general practitioner she was provided with her mobile phone, glasses and a package. She was not, however given her personal diary. That was ultimately retrieved by Ms Kisbee and provided to the applicant.
Initially Ms Kisbee had told her that it could not be provided as it contained “confidential information”. On reviewing the diary, she noted that a notepad that had been clipped to the inside of the diary had been removed. She enquired of Ms Kisbee, who admitted removing it. She agreed, however, to mail the notebook to her. The applicant states that on receiving the notepad she “discovered a page had been torn out”.
When asked to summarise the key factors that led to her injury the applicant reiterated that these were:
“Jane Carpenter allowing her personal feelings towards me result in a blatant misuse of authority. I am very distressed at not being allowed to work due to Jane Carpenter’s lies and manipulation.”
The applicant says that since a dispute over billing some years previously, her relationship with Ms Carpenter has been “frosty”.

Jane Carpenter

Ms Carpenter is the respondent’s State Support Manager. Since January 2021 she also acted as the business manager. She describes her primary role as liaising with practice managers, suggesting strategies for improvement and providing support where necessary. Contrary to the applicant’s assertion, Ms Carpenter does not agree that they had a “frosty or difficult relationship”. She does describe an episode in May 2021 during which she informed the applicant that rosters had not been punctually uploaded on to the system contrary to an earlier directive she had given that they should be done daily. This provoked a reaction from the applicant, who said that she was “not used to be micromanaged”. Ms Carpenter offered mediation. However the applicant decided that was unnecessary and subsequently “our relationship has been open and good, with regular contact”.
Ms Carpenter recounts that the applicant had rung her on 25 May 2021 when she was “quite upset” about one of her staff being offered a role at ASCC. She stated that Belinda Smith, the manager of ASCC had “head hunted” one of her staff again. On that day Ms Smith made a formal complaint by email. That day Ms Carpenter sought documentation in relation to the complaint from the applicant. She states that she asked the applicant to “keep it confidential”. The following day, however, she received a series of signed statements from other staff members who the applicant approached. The applicant described it as her “supporting documentation”. Ms Carpenter says that:
“I told her that it was a formal complaint and it should have been kept confidential”.
That same day the applicant advised Ms Carpenter that she had obtained a letter signed by each of the doctors that she was “a professional practice manager”. Once again Ms Carpenter states that she told the applicant “I told you it was confidential”.
Ms Carpenter states that on 27 May 2021, Ms Smith asked her to speak to Aimee, one of the staff who had transferred to ASCC as she was quite distraught at the way the applicant “was treating her once she found out she was leaving”.
Ms Carpenter states that she disputes the applicant’s assertion that she raised the issue of the former employee, Daniella, in their conversations. She states that the applicant raised the subject of Daniella and that she said that “Daniella was different”. She also denies calling the applicant again during the course of the next week stating she did not speak to her again until 4 June 2021.
During the week commencing 31 May 2021, Ms Carpenter filled the role of practice manager during the applicant’s absence on sick leave. She continues:
“I did not intend on interviewing staff on site, but a number of staff approached me to discuss issues with Jeanette. I did sit in on a meeting with Rachel Kisbee and some staff in relation to Belinda’s complaint.
While I was working there, and during the course of the interviews with Rachel, staff raised other allegations regarding Jeanette. Other staff were coming to me and wanted to tell me what had happened to them in terms of Jeanette’s management of them and her treatment of them. I needed to get Rachel HR support in dealing with that. I deny that it was my intention to seek out other complaints from staff”.
Ms Carpenter also states that she found samples of Contrave in the applicant’s desk drawer. She had been told by Dr Daniel Richter that the applicant had been asking reception staff to get doctors to obtain the medication for her. She states there were 26 boxes of medication with a one month’s supply in each box. She states:
“It is a Schedule 4 medication, which means it is prescription only medication which should be under lock and key”.
This aspect of the applicant’s conduct was investigated by Claire Lenton.
Ms Carpenter then records that on 4 June 2021 she advised the applicant of her suspension on full pay while misconduct allegations were investigated. She states:
“At no point did I think from the initial complaint from Belinda Smith that there would be serious misconduct allegations made. At all stages I have brought in Rachel Kisbee to manage issues with staff. I also followed our process regarding complaints and grievance.
Jeanette then sent a number of texts to me. I suggested that Jeanette call Rachel Kisbee and Rachel then spoke to her. I have not spoken to Jeanette since.”

Claire Lenton

Ms Lenton is the respondent’s State Manager for NSW and ACT. She states that she received the original complaint from Ms Smith on 25 May 2021. She states:
“I assured Belinda we would follow up and investigate. Jane had also had Jeanette on the phone at the same time. I acknowledged Belinda’s complaint and then let Jane Carpenter and HR handle it.”
Ms Lenton states that she can understand the applicant’s resentment at a staff member moving to work for ASCC but it was “her reactive behaviour that had concerned us”. She recounts an earlier incident involving the applicant and a patient not wearing a mask in October 2020. She states that the applicant’s behaviour towards the patient was aggressive and resulted in the applicant receiving a warning for failure to follow the correct procedure in banning a patient and for failing to wear a mask herself.
Ms Lenton states that on the applicant ceasing work Jane Carpenter temporarily worked in the Edgecliff practice. It was in those circumstances that she came across medication in the applicant’s desk drawer. She told Ms Carpenter that she “needed to take a photograph of the medication and speak to Rachel Kisbee about it”.
Ms Lenton recounts that while Rachel Kisbee and Ms Carpenter were in the office “staff kept coming forward and advising Jane Carpenter of bullying allegations regarding Jeanette”. When she attended the office staff informed her that they were “very anxious about Jeanette returning to work”.
After receiving a complaint from the applicant as to the manner in which Ms Carpenter had “grossly” mismanaged the incident Ms Lenton advised the applicant that she would assume the role of investigator with the support of Rachel Kisbee from HR. She states that she provided information regarding the status of the Contrave medication as it was a Schedule 4 medicine. All statements in respect of the investigation were taken by Rachel Kisbee.
Ms Lenton records that it appeared that doctors were aware that samples of the Contrave were being given to the applicant. The applicant stated that they allowed her to order samples in the Practice and then they gave them to her. Ms Lenton continues:
“If a staff member wants access to an expensive medication and the doctors want to assist them, we can help facilitate that via the doctors, however the proper process needs to be followed. That is clearly outlined in our medication storage policy, which Jeanette has signed”.
Ms Lenton states that both her and Ms Kisbee sat with Ms Carpenter when she called the applicant on 4 June 2021 to advise her that further allegations had been received and that she was to be suspended on full pay. She continues:
“I can attest to the fact that Jane was very calm and compassionate while Jeanette was escalating during the conversation. From the start Jane Carpenter has followed HR’s directives and advice in managing the matter.”
Ms Lenton concludes by acknowledging that a number of doctors have written letters of support for the applicant. She continues:
“We don’t dispute the good work that she has done in the Practice. The doctors have also demanded to know what is going on with our investigation, which is difficult because it is confidential.”

Rachel Kisbee

Ms Kisbee is the respondent’s HR business partner. She records a previous occasion in which the applicant was subjected to an investigation for the manner in which she had treated a patient and for not wearing a mask. The applicant received a warning letter at the conclusion of the investigation on 18 November 2020.
Ms Kisbee records that the investigation the subject of these proceedings commenced on the making of a formal complaint from Belinda Smith. It was, however, the presence of prescription medication in her bottom drawer and subsequent complaints of bullying by members of the Practice that resulted in the applicant being stood down on full pay. Ms Kisbee describes the process by which these allegations came to light as follows:
“Once Jane Carpenter had an understanding of the serious allegations of potential bullying behaviour by the applicant towards some employees she asked to meet with those staff formally and asked for someone from HR to also be present at those meetings. I was involved in all but one of those conversations. My impression was that those employees were in a position of wanting to share their concerns with us. They were not coaxed out by Jane Carpenter.”
Ms Kisbee also records that she had a telephone conversation with the applicant on 4 June 2021 in which the applicant sought the reasons why she was stood down. Ms Kisbee stated that:
“It related to the potential breach of the Safe Use of Medicine Policy, and also some employee reports with potential allegations of bullying or harassing behaviour. The claimant asked me to share who made the complaints, and I said we were still working through those complaints and still did not have full witness statements. I told her that we would share with her any potential breaches of the Workplace Behaviour Policy, but I needed to review the merit of the allegations first.”
In respect of confidentiality, Ms Kisbee confirms that the respondent insisted that the applicant should not go into the office area and engage with staff and doctors “other than her own GP when she visits”. Ms Kisbee says it was not done to control the applicant’s visits but “to be mindful of other staff”.
Ms Kisbee also gives an account of the return to the applicant of her glasses and other personal items in June 2021. In respect of the notebook clipped to the applicant’s diary, Ms Kisbee concedes that she did “remove some pages clipped into the notebook with work bank details”. She says that she put those pages into the applicant’s desk drawer and “forgot about it until she emailed me later asking me to send it to her”. Ms Kisbee states that the investigation has been run “fairly and in line with our processes”. She continues:
“The allegations that have been put to the claimant are quite serious and if substantiated could mean termination.”

Belinda Smith

Ms Smith is the NSW and Queensland business manager for ASCC. She confirms that it shares premises including a reception desk with the Edgecliff Medical Centre. She states that prior to 2021 there had only been one staff member who had moved across to ASCC from Edgecliff Medical.
Ms Smith states that Matthew Williams was a registered nurse who “came across from Edgecliff Medical Centre to work for us 4 days a week as practice manager”. He maintained one day a week at the Edgecliff Medical Practice. She continues:
“I only know the staff at Edgecliff Medical Practice to say hello to. Aimee Fea and Matthew Williams had told that a number of the staff had left. I understand most of the staff are leaving because of the behaviour of the claimant and the work atmosphere.”
Then Ms Smith describes the telephone call from the applicant on 25 May 2021. She states that the applicant was “shouting and was difficult to understand”. She accused Ms Smith of poaching her staff. She continues:
“The claimant yelled so much that it was hard to understand what she was saying. In the last part of the call she said she would call Jane Carpenter and then slammed the phone in my ear.”
She states that the applicant’s manner of speaking to her was “unprofessional” and she made a formal complaint.
Ms Smith then recounted the circumstances concerning the transfer of Aimee Fea. She says that the applicant “again instructed her staff not to talk to our staff”. She states she has witnessed her come out of the office and reprimand staff for talking to the staff of ASCC. She states that following her complaint Ms Carpenter met with Aimee Fea and Matthew Williams to discuss what had taken place from their perspective. She states that Ms Fea told her that the applicant had approached both her and Matthew Williams on learning that they were to work for ASCC and told them they would “not be working for IPN effective immediately, and would not need to fill any more shifts”.

Dr Diane Cheng

Dr Cheng states that the claimant interacts with the doctors at the practice well and runs the practice in an efficient manner. She does not comment on the way in which the applicant interacts with the administration and reception staff. She states that the applicant has not had any “run-ins” with her patients. She continues:
“We are a large practice and at times Jeanette is required to deal with difficult patients. We have 10 doctors on each day and if there is a difficult patient Jeanette has to deal with them.”
Dr Cheng also states that she has not witnessed any friction between the applicant and staff at the ASCC. She observes that it was particularly disappointing for the applicant when Aimee Fea moved next door as the practice was understaffed at that time. In respect of the medication issue, Dr Cheng states:
“I am aware that Jeanette is taking Contrave medication. I can’t comment on whether other doctors are aware that samples of Contrave were being ordered in for Jeanette. I signed for Jeanette once because I knew she was on Contrave. I told the drug representative that my Practice Manager was on the drug and I asked him if I might sign for her to have some sample medication. We would be happy to give him feedback on the medication after the trial period.”

Karen Mansour

Ms Mansour is the registered nurse at the Edgecliff Medical Centre. She has been so employed since 2007. She reported directly to the applicant. She continues that she gathered from the applicant that the relationship between her and Ms Carpenter “was becoming difficult earlier this year”. She also observed that when Ms Carpenter visited the office “their interactions were strained”.
Ms Mansour says:
“Since Jeanette started as practice manager the business has done well and the doctors have been very happy with her. With the previous business managers, Hailey Henson and Michelle Thomas, things always ran smoothly with the change of business manager this year things gave (sic) downhill. There is no organisation at reception when the doctors ask reception staff to do things they don’t do things straight away.
Ms Mansour says that there has always been “an issue between the skin clinic and IPN. They have taken a couple of our staff members”. She states that when Matt Williams and Aimee Fea went across to ASCC they did not tell the applicant that they were applying for the role.
Ms Mansour addresses the question of the prescription medications thus:
“We don’t keep medications in the practice anymore and we haven’t for a few years now. Last time when we had an accreditation some doctors had expired medication in cupboards in their room. We sometimes kept medications in the cupboards in the treatment room until about 2 years ago, but we don’t do that anymore. Any medications doctors order in are supposed to be written up by the doctors but that was not happening. We felt it was better for the practice not to carry samples. Sometimes doctors would get samples in for specific patients, but we haven’t had a specific area to keep them. If doctors get samples in now that is their responsibility. The doctors don’t keep records of who they give samples to and that was one of the reasons we decided initially to keep them in the treatment room.”

Discussion and findings

The exposition of the law relating to s 11A (1) in Northern New South Wales Health Services v Heggie [2013] NSWCA 255 (9 August 2013) (Heggie) provides a useful starting point for any decision involving the section. In that case, Sackville AJA said this at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.
(ii) Nonetheless, for s 11A (1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
The concept of reasonableness in s 11A is not clearly defined in the case law. In Commissioner of Police v Minahan [2003] NSWCA (24 September 2003) the Court of Appeal referred to decisions of the Compensation Court relied upon by Walker J, at first instance, without suggesting that they were erroneous. In Irwin v Director-General of School Education (unreported, 18 June 1998) Geraghty J, stated:
“The question of reasonableness is one of fact, weighing all the relevant evidence. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of “reasonableness” is objective and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances by a question of fairness.”

Then, in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss J, stated:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected”.
The judgment in Heggie casts some doubt on whether it is always necessary to consider the rights of the employee. Obviously, it will be necessary to undertake that task in many cases: c.f. Pirie v Franklins Ltd [2001] NSWCC 167 (10 September 2001). I see no reason why this is not such a case.
The case law also establishes that a finding that an employer has not proven that a disciplinary action is reasonable is not a finding that it is unreasonable. But reasonableness does not require the employer’s actions in respect of discipline to be flawless.
It is true, as Mr Hickey submitted, that the applicant’s telephone call to Mrs Smith which resulted in the first complaint to Ms Lenton might be put down to overzealous competition between the two practices operating from the Edgecliff premises. Ms Mansour suggests that there had been a long-standing “issue” between the two practices. It is likely, however, that the applicant’s alleged behaviour towards Aimee Fea and Matthew Williams, on being told that they were to leave the medical centre to take up a position with ASCC, was also raised at the time.
These allegations, when considered together, support the respondent’s action in establishing an enquiry into the allegations. To deprive casual employees of further work in the practice because they have they have obtained a promotion by accepting employment in another business within the respondent’s operation is potentially inappropriate behaviour. I, therefore, do not accept Mr Hickey’s argument that it was inapt for the respondent to commence an enquiry into this behaviour at which each of the employees would be given the opportunity to give their account of the incidents.
It is evident that Miss Carpenter, who conducted the enquiry with Ms Kisbee, thought that the allegations, if proven, might result in a warning but they were not likely to threaten the continuation applicant’s employment with the respondent. However, as the applicant ceased work following formal receipt of the allegations, Miss Carpenter substituted for her as office manager. It was during that period that she was told by Dr Richter that they were boxes of Contrave, which is said to be a Schedule 4 medication, was to be found in the bottom drawer of the applicant’s work desk. It was also during this period that members of staff at the medical centre informed Ms Patterson and Ms Kisbee of the inappropriate treatment by the applicant.
The allegations ranged from cancelling employee shifts or reducing their hours for failing to follow instructions, including to come to work when sick, to suggesting that an employee not tell the truth during the investigation that was underway. While some of these allegations are trivial, others are quite serious. Undoubtedly, the respondent was obliged to investigate these allegations. Equally, given the substance of the allegations, it was reasonable that the respondent suspend the applicant on full pay. The allegations included the assertion that the applicant had spoken openly about the investigation and attempted to influence a potential witness.
It must be borne in mind, that the disciplinary action taken by the respondent in this case is the initiation of the investigations, its conduct, and the suspension of the applicant from employment. The respondent did not make a finding misconduct or breach of its policies as the applicant did not return to work after receipt of the letter of 28 May 2021. There is, therefore, no question of any inappropriate penalty or punishment. The actions with respect to discipline which were causative of the applicant’s psychological injury were the entirety of the disciplinary actions up to and including 4 June 2021. The respondent must prove that these actions considered as a whole were reasonable.
There are several issues relevant to reasonableness that cause some concern. First, the applicant asserts, and Ms Patterson denies, that their relationship was “frosty”. Ms Mansour also states that their interactions “were strained”. The applicant suggests there was “bias” in the initiation and the conduct of the investigation. However, the decision to commence an investigation of the applicant appears to have been made by Ms Lenton, the State Manager of the respondent, who was a party to the initial telephone call from Ms Smith and informed her that her complaint would be investigated. Further, as I understand the evidence, Ms Patterson conducted the investigation with Ms Kisbee from HR. Ms Kisbee took the statements of witnesses in the matter.
I do not entirely understand the respondent’s corporate hierarchy. Ms Carpenter was filling two roles at the time of Ms Smith’s complaint. While she only visited the medical centre irregularly, she was one of the applicants direct superiors. It is logical that she would be involved in the investigation of the complaint by Ms Smith. It is also understandable that she would fill in as practice manager during the applicant’s absence on sick leave.
When the applicant complained on 7 June 2021 that Miss Carpenter was “mismanaging” the investigation and “misusing her authority”, Ms Lenton told her that she would take over the investigation with support from Ms Kisbee and from that time, Ms Carpenter, took a “backseat” in the investigation. I appreciate that this occurred after the date of injury. However, in my opinion, it is indicative of the fact that investigation was not commenced out of malice towards the applicant or conducted in a biased manner.
Then, there is the respondent’s insistence on the confidentiality. The letter of 28 May 2021 states that the applicant should not “discuss the situation with the complainant, any of the witnesses involved in the matter or any other company employee.” By the subsequent letter, the applicant was certain advised that she was not to enter the workplace or make contact with any employees without the permission of Miss Carpenter.
The prohibition on speaking to the complainants is understandable. On the other hand the prohibition on speaking to any company employee is a restriction on the applicant’s right to obtain evidence which might be relevant to the allegations made in the two letters from Miss Carpenter. If she could not speak to any employee of the company, she would not be able to ascertain whether other employees supported her version of events.
Obviously, there are conflicting issues of principle. The employer, as Mr Robison argued, has an obligation to protect its staff. To this end it is probably appropriate to limit the possibility of confrontation between a worker, who is the subject of an investigation and other employees, who may be potential witnesses. Thus, some limitation on entering premises while suspended may often be appropriate. I have found this to be so where employees told the employer that they were afraid of the worker, or, alternatively, where there was some evidence of the suborning of a witness. Equally, it may be inappropriate for other employees to be told of the name of the complainant or the substance of the complaint. That may expose the employee to unnecessary scrutiny, which may discourage other employees from making similar complaints in the future. Thirdly, it may be evident that the employer intends to provide the worker with statement evidence from all relevant witnesses. On other occasions, I have found that it is an unnecessary restriction on the right of the worker to obtain evidence to refute the allegations made against her/him.
It is necessary to consider the process as a whole in reaching a conclusion as to reasonableness. In the oft quoted passage from Department of Education & Trainingv Sinclair [2005] NSWCA 465 (20 December 2005) (Sinclair), Spigelman CJ at[97] said this:
“His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation “reasonable action with respect to discipline”. In my opinion, a course of conduct may still be “reasonable action”, even if particular steps are not. If the “whole or predominant cause” was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, “reasonable action”. For this alternative reason the appeal should be allowed.”
Bearing this instruction in mind, I have concluded that the blanket restriction imposed by the respondent on the applicant communicating with its employees in this case is difficult to justify on the basis of principle. The allegation that the applicant had breached the respondent’s Safe & Quality Use of Medications Policy is a very serious one. Potentially, it could lead to the applicant’s dismissal from her employment with serious consequences for her career as a Practice Manager.
Clearly, the doctors who obtained these samples and provided them to the applicant may have been in a position to provide evidence which may assist the applicant to defeat or mitigate the allegation made against her. To prevent the applicant from obtaining evidence from these medical practitioners by communicating with them in writing or over the telephone severely handicapped her right to defend herself.
I have little doubt from the context of the matter that the prohibition on the applicant communicating with the employees was intended to cover these medical practitioners. Ms Carpenter considered it to be a breach of confidentiality when the applicant obtained letters of support from doctors at the practice in respect of the first allegation. The infringement of such an essential right, in my opinion, leads to the conclusion that the respondent cannot prove that its actions with respect to discipline were reasonable. I stress that this is not a determination that the employer’s actions were unreasonable. In many respects the investigation was conducted in an exemplary manner. However, the right to reasonably contest an allegation made by an employer is fundamental and its restriction in this case goes to the very heart of natural justice.
Accordingly, I find that:
(a)    The applicant suffered psychological injury arising out of and in the course of employment which is deemed to have occurred on 4 June 2021 for the purposes of the 1987 Act.
(b)    The respondent has not established that the respondent’s injury was wholly or predominantly caused by reasonable action with respect to discipline in accordance with s 11A (1) of the 1987 Act.
(c)    The applicant was totally incapacitated as a result of the injury between 24 September 2021 and 1 December 2021.
(d)    Order the respondent to pay the applicant the sum of $1068.78 per week pursuant to s 37 of the 1987 Act during this period.
(e)    Credit to the respondent to payments made.

[2022] NSWPIC 75

23 February 2022