Laari v Secretary, Department of Communities and Justice

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Laari v Secretary, Department of Communities and Justice [2022] NSWPIC 145
APPLICANT:	Pia Lidmila Laari
RESPONDENT:	Secretary, Department of Communities and Justice
SENIOR MEMBER:	Elizabeth Beilby
DATE OF DECISION:	6 April 2022
CATCHWORDS:	WORKERS COMPENSATION - Claim for psychological injury; only issue was section 11A of the Workers Compensation Act 1987 (1987 Act) defence; Held- section 11A of the 1987 Act defence not made out.
DETERMINATIONS MADE:	1. The defence pursuant to s 11A of the Workers Compensation Act 1987 has not been made out. 2. The respondent is to pay the applicant weekly compensation from 25 January 2021 at a PIAWE of $1,529.52. 3. The respondent is pay the applicant’s reasonably incurred s 60 expenses.

STATEMENT OF REASONS

BACKGROUND

The application’s claim is in relation to a psychological injury caused by the actions of the employer on 28 July 2020 and 29 July 2020. The claim relates to receipt of a letter detailing allegations of misconduct and requiring the applicant to attend and participate in a conference.[1]
[1] Form 2, page 2.
The applicant seeks compensation in relation to the period from 25 January 2021 on an ongoing basis with pre-injury average weekly earnings (PIAWE) (undisputed) in the sum of $1,529.52. The applicant’s incapacity is not in issue.
The parties agree that if the applicant is successful in her claim then a general order pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act) should be made in favour of the applicant.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) is there a valid defence pursuant to s 11A of the 1987 Act (the s 11A defence).

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE
Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute and attached documents;
(b)    Reply to the Application to Resolve a Dispute (by way of late document dated 27 October 2021), and
(c)    late documents dated 18 November 2021 and 16 December 2021.
I will now outline the evidence in this matter.

Applicant’s evidence

The applicant has prepared two statements the first dated 27 August 2021[2] and the second dated 17 March 2021.[3] In the applicant’s first statement she explains that she was interviewed by an investigator for the respondent on 14 January 2021. The applicant explains that she was employed by the respondent as an officer in the Sheriff’s Office at Albury Courthouse and had been employed in the Sheriff’s office since 2001.
[2] Application page 8.
[3] Application page 11.
The applicant would report to Renae Elrington, who was the Regional Commander based at Wagga who joined the respondent’s services in 2021. The applicant would also report to Wendy Howard who was the Senior Registrar at Albury Courthouse in relation to security matters.
The applicant outlines interpersonal conflict with some staff in that statement from paragraphs 18 to 127.
On 28 July 2020[4] the applicant received an email from Ms Elrington advising that she would be issued with a letter the following day and that she was to attend a conference call with HR and Ms Elrington.
[4] Paragraph 131 of the statement
On 29 July 2020 the applicant asked Ms Elrington what the conference call was about but was told by Ms Elrington that she could not respond to that enquiry.
The call was booked to take place at 3 pm that afternoon.
On 29 July 2020 the applicant attended the telephone conference with
Ms Michelle Macintosh from PSA as a support person. An hour before the telephone conference the applicant was emailed a letter, alleging misconduct, which contained nine points in relation to the allegations.
The applicant says that during the telephone conference she was asked to respond to the allegations in the letter there and then. The applicant said she had looked at it but did not even know where to start.
The applicant says she explained that she was sorry that she could not respond to the letter there and then and she was then informed there would be a second email sent to her from Tracey Hall, the NSW Sheriff. The email said that due to misconduct allegations, the applicant was suspended on fully pay from 30 July 2020. The applicant attended on her general practitioner that day.
The applicant cleaned her office and downloaded emails and left the Courthouse at approximately 6.30 pm that evening.
The applicant says that she had formed the opinion that she would not be allowed to come back to work and she had pointed out to Michelle that the allegations were so “open ended” it seemed like an attack on her. She found it difficult to see how to address the allegations in the form they had been put to her.
The applicant has prepared a second statement dated 27 August 2021.[5] In that statement the applicant refers to a letter she received from Renae Elrington which she received on 9 June 2020. The applicant says she responded shortly after that date in writing to the allegations in that letter. The applicant received no reply to her explanation and the matter was not mentioned again or raised with her. The applicant considered that her response had been adequate, and they had closed the matter.
[5] Page 10 of the Application.
The applicant confirms that she did discuss the conference with Renae Elrington in relation to what it was about and once again confirms that Ms Elrington said she could not respond to her question.
The applicant explains that she knew nothing about what would happen at the telephone conference until an hour before it was due to take place when she was emailed the letter containing the nine instances of misconduct.
The applicant also explains that she was told in the telephone conference that she would receive the letter from Tracey Hall which was dated 29 July 2020. This was the precise date of the telephone conference, and it seems to the applicant that they were going to proceed with that path, that is being placed on special leave without listening to anything she would have said, that is that her employer had decided her fate even before the meeting took place. The letter also included that the applicant could not be temporarily relocated.
On 9 June 2020 a letter was sent to the applicant[6] from Ms Elrington which sought a response to a number of complaints issued by the Albury Judiciary regarding the management and functionality of the Albury Court hub.
[6] Page 57 of the Application.
The contents of the request for explanation are as follows:
“The Command seeks a response from you regarding the receipt of a number of complaints issued by Albury Judiciary regarding the management and functionality of the Albury Court Hub occurring under your direction. It has been reported that:
• On June 1st a review occurred by Magistrate Funston enabling identified persons to enter the Court. It is claimed that you disregarded the Learned Magistrates instructions and refused entry to the Court participants. It is claimed there were multiple instances of this occurring where you over-ruled the Courts determination from the floor of the Court. Claims of your disrespect to the Court and the magistrate have been made regarding your conduct.
• That a request by the Magistrate to meet with you and the Registrar at morning tea in the Courtroom was made to discuss these matters and to clarify entry requirements. This this was met by you with comments that a WHS situation justified the refusals. And that you indicated that you regarded this meeting as one representing likely collusion between the Judge and the Registrar.
• That you have sought to exert excessive control and according to these complaints have been obstructive in matters relating to Court proceedings, affecting the ability of the judiciary to run an efficient Court room experienced by both the Judiciary and external agents, most recently in seeking approved access to the Court.
• That on a number of occasions you have approached HH Judge Grant's Associate to take an active role in collecting a jury where Sheriff Staff were limited. That these approaches have continued with an inability to discern the inappropriateness of these ongoing requests and the impact on the judicial staff due to these requests.
• It is claimed that recently you approached HH's Associate in her office with a complaint, berating the Associate concerning the variability of timeframes in District Court sitting matters which you claimed was impacting the paid hours of casual court staff. That this discussion led to HH Judge Grant intervening to deescalate your discussion, where it was brought to your attention that the sitting times were known to be variable pending court matters.
• That repeated requests made to you as OIC to facilitate a Sheriff established triage at the Albury Court entry doors as required by the Chief Magistrates Order under COVID-19 were refused by you. That the requests were regarded by you as being the responsibility of the Registrar, with you repeatedly stating that it is not the role of the Sheriff to determine illness or whether persons should be allowed entry to the Registry triage desk.
• On Wednesday 27h May 2020 in discussion with
you, you indicated that there was not a Sheriff COVID triage in place at Albury Hub other than the DC and LC sitting days as the doors were unlockable due to WHS emergency access requirements. An explanation as to why as OIC a solution was not sought from the regional Security Officer to address the situation thereby meeting the Magistrates Order is sought, given this was achieved in Dubbo Court with the same WHS entry door issue, with an active Sheriff's COVID entry triage in place for some months.
I have determined that you are to be provided with the opportunity to respond in writing to the concerns outlined above and show cause as to why further action should not be considered in relation to these matters. I require your written reply within three (3) days from the date of receipt of this letter, being by Friday 12th June 2020.
25.The report asked for a reply within 3 days which should include any explanation as to mitigating or extenuating factors to be taken into consideration in relation to the matters.
26.The applicant replied to the request in writing.[7] The reply was as follows:
[7] Page 59 of the Application.
I am writing in response to your expressed concerns regarding my alleged conduct and behaviour.
Please be advised of the following:
• My operational actions is and has been undertaken as per Court Security Act 2005, COVID 19 Pandemic- Special Provisions
• At no time was any person or practitioner denied access into the court room • At no time have I requested or required any person to seek approval from me to enter the court room
• At no time as stated "I sought to exert excessive control over court proceedings" or "seeking approved access to the court" .
• COVID -19 Triaging is undertaken together with security operations. This operation can take time. (Officer have processed up to 200 people a day. (Statistics are available if required.)
• Officers undertaking Triaging and Perimeter Security Scanning Duties Operations at the foyer entry have requested persons to remain and wait outside the Court House entry. This has occurred on occasions when:
o To maintained Social Distancing compliance in the foyer (approx. 43 persons allowed)
o Officers undertake assessing number of people occupying the foyer
o Person stated they didn't have a legitimately reason I matter in court proceedings
COVID -19 Triage operations: Sheriff's Officers are conducted in conjunction with Perimeter Security Operations at the foyer entry door. As a guide Officer questions includes but are not limited to:
• OS travel undertakings
• Persons health and well being
• Reasons attending the CH.
• Matters listed before the court
• Name
At NO time were COVID 19 triage directions refused by me or any of the officers undertaking security duties. Officers assisted I directed people to attend the Registry triage desk when this was operational.
Operational triage statistics relating to COVID - 19, are recorded on daily basis. These are compiled then into such report as OIC weekly reports, Walk Through daily statistics entered on Shared/Drive. Further daily statistics are compiled as to persons exiting the WT and number of personal items scanned per day by officers.
o Documented stats can be provided on request
I seek to have further information provided to me as to how this assertion is made about my actions-and who raised it.
Magistrate R Funston request to meet with me and the Registrar W Howard at morning recess: ···
At-the·meeting I was addressed by the magistrate with words to the· effect that I was a bully and authoritarian. ·
I found this personally highly offensive as it was delivered from the bench in an aggressive manner.
I asked to have opportunity to respond under the Respect Policy from the Magistrate, as I felt under an attack. At no time did I imply or state any words to the effect that this was somehow "a collusion between the Magistrate and the Registrar" at the called meeting with the Magistrate and Registrar.
I expressed Officers operational undertakings were according to COVID social distancing requirements and so as to maintain WHS protocols
District Court:
At no time have I approach HH Judge Grants associate L Cohen "to take an active role in collecting the Jury".
I have been a Sheriffs Officer over 19 years and in all that time I have never made this request from an Associate. To do so would greatly undermine the integrity of the judicial system and our commitment to ethical practices when administering the Jury system and Jury.
Court Officer Steve Pettit is employed to manage the court operations and sittings
o Staff rostering and operational schedules are available and can be provided on request
Meeting arranged with HH associate L Cohen and myself:
I made a pre-arranged 2 pm appointment with associate L Cohen to discuss the remaining three days of the DC Griffith sittings held via AVL from Albury. I outlined to LC the purpose of the meeting in the morning. It was to obtain up to date information for management planning purpose, as there had been a number of changes to the sittings due to COVID-19.
To state that I complain and or berated associate LC is not correct. At no time was there any reason for me to complain or to berate the associate in our meeting.
As stated in your letter "sitting times were known to be variable pending court matters" I was asked by associate LC as to why I was seeking information?. I explained that I had become aware that CO was required to work less than 30 minutes per day which requires me to approve and process payment for min 3 hrs, as the CO is a casual worker.
The above was raise with Regional Commander R Elrington as a concern in an e mail – as I had a Sheriffs Officer available to undertake CO duties thus making a. ·monetary saving. (email copy available if required)
Regional Commander discussion had On Wednesday 27th May 2020 in relation to automatic front entry doors being operational during COVID - 19 restrictions. I was directed to discussion this with regional Security Officer Jarret Towns to address the situation.
It is put that l failed to do so. Please note this is not correct.
On Wednesday 27th May 2020 I telephoned Superintendent Security Coordinator Jarret Towns Security Coordinator to discuss the Court House entry doors as directed by RC RE.
An email was sent to JT outlining the entry door situation on the following day. The court house entry door is now planned to be reviewed next week when JT attends Albury. (Copy of my e mail is available if required)
I note due to COVID 19 and its social impacts we.are all operating under ever developing, changing, and highly stressful conditions. The effects are not only work. personally affecting us. but all persons we come into contact in our daily life and at work.
Please, due to the limited information given I find it difficult to address any of the expressed concerns with more detail. Should you require further explanation and or documentation/information please· do not hesitate to contact me further?”
On 28 July 2020 the applicant received an email from Ms Ellington advising that she would be issued with a letter the following day and that she was to attend a conference call with HR and Ms Ellington on 29 July 2020.
The applicant says that she asked Ms Ellington what the matter was about but was told that she couldn’t respond.
On the 29 July 2020 the applicant attended the telephone conference with Miss McIntosh a support person. An hour before for telephone conference the applicant was emailed the letter alleging misconduct with nine points to respond to. The email was from
[8] Application page 65
Caterine D’Elia, Deputy Secretary which was signed on 27 July 2020[8].
The email containing the nine allegations made against the applicant is as follows:
“The allegations of misconduct are detailed below:
1, Your failure to comply with numerous reasonable directions from a judicial officer (Magistrate Funstom) on/around 1 June 2040 in refusing to allow required persons to enter the courtroom;
2. On/around 1 June 2020, you breached Section 7 of the Court Security Act 2005 in refusing entry of required persons into a court room as directed by a judicial officer (Magistrate Funston);
3. On numerous occasions, you breached Section 19 of the Court Security Act 2005 by overruling a judicial officer (Magistrate Funston) in open court by placing limitations on the persons entering court;
4. On numerous occasions since May 2020 you breached Clauses 4.5, 6;1and 6.3 of the Department of Communities and Justice Code of Ethics and Conduct in not .· treating work colleagues, judicial officers and legal practitioners with dignity and respect, as previously raised with you by the Regional Commander, West/South West, .Ms· Renae Elrington;
5. On numerous occasions since May 2020 you breached Clauses 4.1 and 5 of the Department of Communities and Justice Dignity and Respect Policy by engaging in bullying behaviour with workplace colleagues, as previously raised with you by the Regional Commander, West/South West, Ms Renae Elrington;
6. On 16 June 2020, you breached Section 9 of the Court Security Act 2005 by erroneously attempting, in an intimidating manner, to prevent Mr Brad Mallinson, JusticeAdvocate from using his laptop within the courtroom
? [sic] On numerous occasions you failed to appropriately apply Section 14 of the Court Security Act 2005 whereby you used personal interpretations of the operation of. the Act to unreasonably and repeatedly harangue court attendees and carry out self-determined directions using. unreasonable grounds; which caused intimidation, fear and obstruction to persons with legitimate court business;
8. On. numerous occasions, you failed to appropriately apply essential security screening processes through inconsistent and poorly managed perimeter screening processes, most notably during the CQVID-19 pandemic operational requirements;
9. Your actions, conduct and behaviours as described in 1 - 8 .above, failed to Uphold the Government, Sector Core Values and principles of integrity, Trust, Service and Accountability as prescribed within Section 7 of the Government Sector Employment Act 2013.
In accordance with clause 38(3) and (4) of the Government Sector Employment Rules 4014, I am offering you the Opportunity to make a statement in relation to the allegations. You have seven days from the receipt of this letter to make this statement.”

In her statement the applicant says that during the telephone conference she was asked to respond to the allegations in the letter there and then. The applicant says she didn’t know where to start.
The applicant has prepared a further statement dated 6 December 2021.[9] In that statement the applicant refers to the conversation she had with Ms Elrington about what the conference call was about. She indicates that she could not recall if this conversation took place on 28 or 29 July 2020 but confirms that it did take place and it took place before the meeting. The information the applicant says she was seeking in the conversation was about the contents of the letter she was about to receive at 2 pm, not anything about the fact that the meeting was to take place.
[9] Late documents page 1.
The applicant also confirms she did request further time to read the contents of the letter. She points out that it was readily apparent that Ms Elrington’s email to her was sent on 28 July 2020 at 2.47 pm and that she was receiving the letter via email at 2 pm and that the meeting was at 2.30 pm. The applicant wanted more time to be able to read and digest the contents of the letter which she would receive at 2 pm.
The applicant confirms that in the meeting she was asked for a response to the allegations in the letter which she thinks came from Noel Ford.

Other lay evidence
Ms Elrington

The respondent instructed ProCare Investigations to obtain evidence in relation to this claim.[10] Ms Elrington has prepared a statement dated 5 November 2020. In that statement Ms Elrington outlines the difficulties that the applicant had with Registrar Howard. The applicant had previously lodged a formal grievance against the Registrar and there appears to be complaints coming from the side of the Registrar in relation to her not having access to roster information. Simply put, there appeared to be a lack of communication and friction between them.
[10] Page 5 of the Reply.
Ms Elrington says that from approximately March 2020 she began to receive negative feedback in relation to the applicant’s conduct and management style. It appeared to her that there were potentially ongoing communication issues and that the applicant did not like her judgement or decision-making being challenged.
Ms Elrington explained that there were difficulties in relation to the high numbers entering the Courthouse. As a result of this there was a telephone call between the applicant and Ms Elrington regarding this issue. The applicant became agitated and raised her voice throughout the call. Ms Elrington observed the applicant was dismissive, blunt and issued outright refusals to comply with the Chief Magistrate’s directions during their telephone call.
Ms Elrington considered the issues around Court access represented a significant deterioration and breakdown between the applicant, the management and direction of her staff and the requirements under the orders of the Chief Magistrate.
Ms Elrington says the email summarising the conversation was made on 9 July confirming that access and Court doors were not being managed in accordance with the Chief Magistrate’s orders was sent to the applicant.
Ms Elrington also refers to a complaint from a legal representative who advised her that the applicant had instructed him not to take notes via laptop in a Courtroom. Ms Elrington thought that this was demonstrating unnecessary and unlawful interference with Courtroom issues which was outside the role of an OIC.
The applicant was then issued with a formal written request for an explanation of her actions and behaviour over the preceding months. This was issued on 9 June 2020.
Ms Elrington received a response very quickly in a couple of days. She observed that the response was “complex” and “mostly not relevant”.
Ms Elrington then organised a meeting on 29 July 2020 which was held by telephone due to COVID concerns. As a result of the previous written request and the applicant’s formal response, the applicant was advised that she was to be stood down from her position effective immediately until the events relating to the complaints and other matters could be investigated. This came with a directive that the applicant was to report to the Wagga Wagga Hub to work under the supervision of a more senior officer, namely
Inspector Safour.
Ms Elrington has provided a further statement dated 15 November 2021 (late documents page 9). In that email Ms Elrington outlines the circumstances that led to the meeting on 29 July 2020. A decision was made to issue the applicant with a formal letter of misconduct after the worker’s response to the letter of 9 June. This decision was made by Noel Ford, Manager, Workplace Relations.
The applicant was then notified of a meeting of 28 July 2020 at 2.47 pm from
Ms Elrington.
Ms Elrington puts in dispute that she refused to disclose the purpose of the meeting on 29 July 2020. She says she was not asked, either verbally or in writing, what the purpose of the meeting was. She did however provide the reason for the meeting in an email to the applicant on 28 July 2020. The email requested the applicant to attend a meeting with
Ms Elrington and Mr Ford at 2.30 pm on 29 July 2020 in relation to a letter that she was to be issued with on behalf of the Deputy Secretary, Courts, Tribunals and Service Delivery. The email states that the letter and attachments will be sent to the work email address at 2 pm tomorrow in order that she have the opportunity to read the document prior to the meeting. The applicant was invited to bring a support person.
The applicant replied by email at 3.22 pm saying that she would be supported by
Michelle Macintosh from PSA who will be joining the meeting via MS Teams.
Ms Elrington replied to the applicant at 3.33 pm thanking her for her email and telling her that she would be advising Noel Ford of her attendance and the availability of a support person.
By email at 3.57 pm, the applicant asks for more time to be able to read and absorb the contents of the letter prior to the proposed meeting. The applicant then requested a later scheduled meeting.
On 29 July at 3.34 pm, Noel Ford sent an email to the applicant attaching a letter regarding the applicant’s temporarily changed work location.
The applicant replied to this email on 10 August 2020 at 4.21 pm. She stated that she was unable to respond within the timeframe required due to personal issues. She requested the response time be extended to Friday 10 August as she was not in a position to be able to complete her response sooner.

APPLICABLE LEGISLATION

Section 11A of the 1987 Act provides:
“11A NO COMPENSATION FOR PSYCHOLOGICAL INJURY CAUSED BY REASONABLE ACTIONS OF EMPLOYER
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”

Submissions and consideration
General principles

The respondent says that the applicant is not entitled to compensation as it can rely on the defence of the reasonable action of the employer provided by s 11A of the 1987 Act.
An employer who seeks to make out such a defence pursuant to s 11A carries the onus of establishing that defence (Department of Education and Training v Sinclair [2005] NSWCA 465 (Sinclair)).
In considering the meaning of reasonableness, assistance can be obtained from his Honour Judge Geraghty in Irwin v Director General of Education NSW CC 14068/97, 18 June 1998 where he said:
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
In Sinclair, Spigelman CJ observed that it is essential to look at the entire process to see if it was a reasonable action within s 11A. That includes looking at the circumstances surrounding the action, both before and after the action.
The respondent has pointed out to complaints that have been made in relation to the applicant’s execution of her duties which included complaints from Magistrate Howard[11] and Mr Malleson,[12] these both being senior people in the Department of Justice. There is also a complaint from a senior solicitor who practises in that area. The respondent said they were left in no position but having to deal with these complaints.
[11] Page 65 of the Reply.
[12] Page 67 of the Reply.
What the respondent says is that their conduct was reasonable as they were in a situation where problems were raised with the applicant’s execution of her duties, and they raised these with the applicant by way of the letter dated 9 June 2020. The respondent was obliged to raise these concerns with the applicant. They then gave the applicant an opportunity to respond to those allegations which the applicant did do in writing. The respondent says that it has acted fairly in the circumstances and in accordance with government employment law principles.
So far as reasonableness is concerned, the respondent said that allowing the applicant seven days to respond to the letter and allegations contained therein is reasonable. This is particularly so in light of the fact that she was given a general view of the allegations in June. Simply put, there was no surprise.
The respondent also points out that their conduct was in accordance with the legislation that applies not only to the applicant but to all public sector employees. The respondent has taken all appropriate steps to deal with these allegations which had to be dealt with.
The purpose of the meeting was made clear to the applicant in particular the applicant was told[13] that the purpose of the meeting was to confirm receipt of the correspondence.
[13] Page 10 late documents dated 18 November 2021.
The applicant asserts that she was asked to respond to the allegations there and then. This is flatly denied by Ms Elrington in her evidence.
So far as the contest between the evidence of the applicant that she was asked for a response in the meeting and says that she thinks that it was requested by Noel Ford as against Ms Elrington’s evidence, the respondent submits that Ms Elrington’s evidence should be preferred. The respondent points out that the applicant in subsequent correspondence to the respondent asked for an extension of the seven days to reply. The respondent says this is consistent with her understanding that she was not required to reply to the allegations there and then in the meeting.
The applicant in reply disputes that the sole purpose of the meeting on 29 July 2020 was for the applicant to confirm receipt of the letter. The applicant points out that at that time the applicant was served, without any prior notice, a suspension notice. The applicant submitted that the respondent has omitted to comprehend the far more destructive element of the possibility of suspending of the applicant without notice.
The applicant submitted that she complied with the request for an explanation as to her conduct in written form. It was open to the respondent if they had a view that there had not been proper compliance with the request to point out to the applicant in which respects it was inadequate. Indeed at the end of the applicants email in June she states:
“Please, due to the limited information given I find it difficult to address any of the expressed concerns with more detail. Should you require further explanation and or documentation/information please· do not hesitate to contact me further?”
The respondent failed to request any further information. There is no explanation from
Ms Elrington, nor any other respondent employee as to why she or they did not follow up with the applicant if it was thought that there had been inadequate response to the request.
The applicant’s written response to the request dated 9 June 2020 was deemed by
Ms Elrington to be inadequate. The explanation that she gives is that the answers were “complex” and “mostly not relevant”. There is no explanation as to how these descriptors apply to the written answers.
The applicant submits that this is a significant omission in the conduct of the respondent. The applicant says that there is no explanation as to why after that exchange of information the matter escalated suddenly to disciplinary proceedings. There is simply no explanation as to why when the applicant promptly responds to a request for information in June it suddenly escalated to disciplinary proceedings in late July . There is no evidence from the respondent as to why that escalation took place. I must say I agree that there is no clear explanation as to why this occurred.
The applicant points out that at the meeting on 29 July 2020 and (as contained in paragraph 48 of Ms Elrington’s statement) the applicant was advised that she was to be stood down effective immediately. This, it was submitted, flies against the assertion made by the respondent that the purpose of the meeting was to confirm receipt of the letter. At no time was the applicant made aware that at the meeting that there was a possibility that she would be suspended.
In Ms Elrington’s second statement, there appears to be some explanation as to what occurs between early June and late July save to say that a decision to issue a formal letter of misconduct was made by Noel Ford. Needless to say, there is no evidence from Mr Ford contained in the s 11A defence material. The applicant also points out that there is no evidence from the New South Wales Sheriff or the Deputy Secretary in relation to their decision-making in the decision to institute disciplinary proceedings.
The applicant refers to Ms Elrington’s evidence where she says that at no time did she refuse to discuss the purpose of the meeting. The applicant submits that this rather misses the point. At no stage is there any evidence that Ms Elrington advised the applicant that one of the matters on the table for discussion or direction was the possible suspension of the applicant. I agree with this observation.
The applicant argues that the suspension of the applicant was premature. There had not been a finalisation of the exchange of information and to suspend the applicant under those circumstances is not reasonable. Indeed, not giving the applicant notice of the possible suspension meant that she was not prepared to raise matters with the respondent that she may have been able to if she had been given notice.
It is submitted that it must be borne in mind that the applicant had been working for the respondent for some two decades before these disciplinary issues were raised. The applicant was working under new and unusual circumstances with the introduction of the COVID virus into the community and as such there were extra pressures on all concerned. There were differences in opinions in relation to the interpretation of various protocols in all attempts to keep the community and the employees safe from the virus.
The applicant points out that there is no valid reason why the allegations contained in the letter were not provided to the applicant well in advance of the meeting on 29 July 2020. There was no explanation or understanding as to why the applicant was only given that letter on the date of the meeting being 29 July 2020 with only one hour to get her head around the contents.
In relation to the factual dispute as to whether the applicant was asked to reply to the contents of the allegations in the meeting, the applicant points out that even though the letter may have said the applicant had seven days in writing does not exclude the possibility that the applicant was indeed asked to respond there and then. The applicant also points out that there is no evidence from Mr Ford who would be in the best position to corroborate whether he did indeed ask the applicant to provide a response to those allegations in the meeting. It was submitted that the absence of the evidence of Mr Ford must draw a Jones v Dunkel inference made.
The applicant is also critical of the letter of allegations dated 27 July 2020.[14] When one looks at the allegations that are made, they are quite absurdly vague it was submitted. For example, an allegation of “failure to respond to numerous directions” contains no particulars of those failures. Another example would be “on numerous occasions you overruled a Court officer” however no particulars are provided in relation to this. A further example is that “you engaged in bullying activities with fellow employees”, however no names are provided, or instances provided, or particulars provided of the alleged bullying.
[14] Page 63 of the Application.
It was submitted by the applicant that the nature of the allegations, being so vague and general without particularisation, presented to the applicant shortly before a meeting, would have caused the applicant shock, horror and confusion. In that correspondence the applicant is told that the consequences of these allegations mean that she could face dismissal of her employment.
The applicant also submits that there is no explanation as to why suspension was necessary. This is an employee who has worked for the respondent for some 20 years without any evidence of any misdemeanour, counselling, complaint and/or criticism before the conduct relating to the period as contained in the June letter of allegations. There is no explanation from the respondent as to why the applicant could not simply continue to work in her position affording her an opportunity to provide further information. Indeed, in the meeting on 29 July 2020 the applicant was given no opportunity to explain why suspension would be inappropriate. It was clearly the respondent’s intention that they proposed to remove her from the workplace without any input from the applicant in relation to that quite serious step.
The applicant referred to the decision of Arbitrator Virtue in Jones v Department of Juvenile Justice.[15] This decision dealt with issues of not giving proper notice before calling a worker into a meeting and then being confronted with an allegation. There was also a decision of White v Commissioner of Police [2006] DDCR 446.
[15] Jones v Department of Juvenile Justice 28 December 2011
The respondent made some criticism of the applicant’s submissions which incorporated submissions regarding the applicant’s treatment before the events on 28 and 29 July and included the suspension of the applicant in correspondence received by email on 29 July. It was submitted that this is not part of the applicant’s case.
When I look at the applicant’s pleadings it is quite clear that they include the events of 28 and 29 July which includes the suspension of the applicant. I am reminded by decisions such as Sinclair that I need to look at the process as a whole to work out whether the respondent’s behaviour was reasonable in respect of the disciplinary process. It is impossible to clearly delineate one event and not to look at it in the context of what happens both before and immediately after that event to look at its reasonableness. To my mind it is quite clear that the injurious notice that the applicant receives on 29 July, that is one hour before the meeting, must be looked at in context of what was happening at that time immediately both preceding that meeting and shortly thereafter. To do so would fail to give it any context or meaning. That is, was it reasonable to serve that notice on the applicant in the manner that it did and at that time, was it reasonable that disciplinary proceedings were instituted. It is impossible to answer those questions without looking at the background.

At the arbitration some moment was made as to whether the applicant was invited to respond to the allegations in the meeting on 29 July 2020. There is differing evidence from the applicant and Ms Elrington to whether that occurred. We have no evidence from either Mr Ford, who the applicant says made the comment, or the applicant support person
Ms McIntosh.
I find it challenging to make a determination as to whether the applicant was invited to respond to the allegations or not. On balance however, I find it more likely that the applicant would recall whether she was invited to respond or not, rather than Ms Ellington. I also would have been assisted in particular by the evidence from Mr Ford, who it is asserted gave the invitation to respond. The assistance of Mr Ford would have been greater than that of Ms McIntosh as is alleged that Mr Ford himself made the comments.
Given the difficulty I have in comfortably making a determination on that factual issue,
I nevertheless find on balance that the respondent’s defence has not been made out.
I find it difficult to understand how the applicant’s response in June moved so quickly to a serious situation such as a possible suspension. The applicant responded to the allegations in June, when to my mind she has attempted to respond to somewhat vague allegations. The applicant quite clearly has kept the communication chain open as she invited the respondent to seek further information.
There is no explanation from the respondent as to why they did not seek further clarification from the applicant following her June response.
The respondent’s then makes a decision to move forward with a possible suspension without allowing the applicant further opportunity to respond. I agree with the applicant’s submission that presented with such accusations, which were without particularisation, shortly before a meeting, would have caused the applicant shock, horror and confusion.
The brisk manner must have come as a shock to the applicant, these events transpired over some two days. The applicant was employed by the respondent for a significant period before these events. I cannot understand how or why the respondent’s procedure needed to be so hastily carried out without specific warning to the applicant.
I am not satisfied that the brisk manner with both the meeting and the email is reasonable behaviour. I am not satisfied that it is reasonable to serve a worker with allegations of misconduct and then hold a meeting one hour after receipt of the email, even if they are not required to answer the allegations there and then.
The respondent points out that the that the nine allegations were similar to those that are contained in earlier correspondence and as such it could not be seen as unreasonable.
I understand this submission however some six weeks had expired, and the applicant had not heard anything from the respondent. There was no warning to the applicant that such allegations would be still relevant given she had responded to them a significant time before.
The respondent in its submissions maintains that it followed the applicable legislation and government guidelines for “these types of situations”. It may be that the appropriate protocol has indeed been followed. I am not however satisfied that the brisk manner of the actions of the respondent are reasonable in the circumstances.
The respondent bears the onus in attempting to maintain a s 11 a defence, I am not satisfied that they have discharged the onus to the requisite level in this dispute. It is not enough that the respondent can prove that their actions were not unreasonable. They burden is much higher, they must establish that their conduct was reasonable. I have not been persuaded that their actions were reasonable and accordingly the defence must fail.

[2022] NSWPIC 145

6 April 2022