Lintipal Pty Ltd v Jeffery
[2007] NSWWCCPD 118
•23 May 2007
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Decision set aside on appeal: Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 | ||||||
| CITATION: | Lintipal Pty Ltd v Jeffery [2007] NSWWCCPD 118 | |||||
| APPELLANT: | Lintipal Pt Ltd | |||||
| RESPONDENT: | Peter Lewis Jeffery | |||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd | |||||
| FILE NUMBER: | WCC14994-06 | |||||
| DATE OF ARBITRATOR’S DECISION: | 11 January 2007 | |||||
| DATE OF APPEAL DECISION: | 23 May 2007 | |||||
| SUBJECT MATTER OF DECISION: | Section 11A Workers Compensation Act 1987; whether injury was wholly or predominantly caused by ‘transfer’, and whether employer’s action with respect to ‘transfer’ was reasonable. | |||||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Goldbergs | ||||
| Respondent: | Higgins & Higgins | |||||
| ORDERS MADE ON APPEAL: | The Arbitrator’s decision and orders dated 11 January 2007 are revoked and the following orders made: | |||||
| “1. Award for the Respondent employer. 2. No order as to costs.” | ||||||
| No order as to costs of the Appeal. | ||||||
BACKGROUND TO THE APPEAL
On 8 February 2007 Lintipal Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 January 2007. At the time of the events giving rise to this appeal, Lintipal was known as Tempo Cleaning Services Ltd (‘Tempo’).
The Respondent to the Appeal is Peter Lewis Jeffery (‘the Respondent Worker/Mr Jeffery’).
Mr Jeffery was born on 3 March 1951 and is currently 56 years old. He completed his schooling in year eight at Katoomba High School. After leaving school he performed various jobs including packer, kitchen hand and barperson until in about 1981 he started work for the Government Cleaning Service as a cleaner at Katoomba High School where he worked for about five years. He then worked for the next 20 years as a cleaner at Katoomba Public School (‘Katoomba Public’). Over this period the identity of his employer has changed but his duties and location have remained the same. His duties required him to cleaning classrooms, toilets, dusting, vacuuming, buffing and polishing, removing and emptying rubbish bins and cleaning the playgrounds.
He performed his work without any adverse notice or comment until 23 September 2005 when he received a warning letter from the Appellant Employer for not signing off and leaving work eight minutes early on 22 September 2005. On 21 September 2005 an unnamed Grievance Officer and Federation Representative wrote to the school making several complaints about Mr Jeffery’s behaviour in the course of his duties at the school.
As a result of the letter of 21 September 2005, and other complaints made to the Principal, Janet McCarthey, she arranged to meet with the following senior personnel from Tempo on 24 October 2005: Marianne Berrier, Area Manager; Barry Purssell, General Manager; Feryial Kassim, Operations Manager; Rhonda Wilson, Support Officer; and Victoria Carroll, Human Resources Manager. At that meeting the content of several letters of complaint about Mr Jeffery were discussed and Ms McCarthey directed Tempo to remove Mr Jeffery from his position as a cleaner at the school. She also requested that Mr Jeffery not be told that she was involved in the matter. Tempo agreed to implement that direction, as it was obliged to do under the terms of its contract with the Department of Education (see Cleaning Contract No. 0500325 paragraph 4.2, page 17).
On 25 October 2005 a meeting was held at Tempo’s Blacktown office with Mr Jeffery and his union representative (Amelia Sereno), Mr Purssell, Ms Carroll and Ms Berrier. According to Ms Carroll, Mr Jeffery was informed of the allegations against him (see statement of Ms Carroll 16 February 2006, paragraph seven). Though he denied any wrongdoing, he was informed that he was to be transferred to Katoomba High School. On 26 October Ms Berrier attended the school with Rhonda Wilson and handed a letter to Mr Jeffery instructing him that he was to be transferred to Katoomba High and that he was to commence at that school on 2 November 2005. The position at Katoomba High ceased to be available and Ms Berrier informed Mr Jeffery verbally that he was to be transferred to Hazelbrook Public School (‘Hazelbrook’). A letter dated 2 November 2005 was given to Mr Jeffery confirming the fact that there had been concerns raised at Katoomba Public and his transfer to Hazelbrook.
Mr Jeffery worked at Hazelbrook Public on 2 and 3 November 2005 but attended his doctor on 4 November 2005 and has not returned to work since. He completed a claim form on 5 February 2006. His claim was not accepted and he filed an Application to Resolve a Dispute (‘the Application’) on 19 September 2006 alleging that he sustained an injury in the nature of “stress, anxiety and depression – post traumatic stress disorder” as a result of the “nature and conditions of employment and ultimate transfer on 4 November 2005”.
By its Reply filed on 11 October 2006 the Appellant Employer identified nine matters as being in dispute including injury, incapacity, whether Mr Jeffery’s employment was a substantial contributing factor to his injury and whether section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’) was applicable.
The matter was listed for conciliation and arbitration before a Commission Arbitrator on 15 December 2006 when it could not be resolved and proceeded to arbitration hearing. In a reserved decision the Arbitrator found in favour of Mr Jeffery on all issues and made an award in his favour for weekly compensation and section 60 expenses under the 1987 Act.
The Appellant Employer seeks leave to appeal the Arbitrator’s decision.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
There is no issue that the thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The appeal was filed in time.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 11 January 2007, records the Arbitrator’s orders as follows:
“1. That the Respondent pay the Applicant weekly payments of compensation
(i) from 4 November 2005 for the period of 26 weeks at the rate of $580.00 pursuant to s36 of the 1987 Act;
(ii) thereafter at the maximum statutory rate for a worker with no dependents pursuant to s40 of the Act to date.2.Such weekly payments to continue in accordance with the provisions of the Act.
3.That the Respondent pay the Applicant’s s60 of the Act [sic] expenses on production of accounts or receipts.
4.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred in finding that:
(a)Mr Jeffery’s condition did not arise from his erroneous perception of external events (‘injury’);
(b)Mr Jeffery condition of an adjustment disorder and depressed mood and anxiety arose out of his employment with the Appellant Employer (‘injury’);
(c)Mr Jeffery suffered injury as a result of actions taken or not taken by Katoomba Public rather than as a consequence of his transfer to Hazelbrook (‘section 11A’);
(d)Mr Jeffery’s injury was not wholly or predominantly caused by the reasonable action taken or proposed to be taken by the Appellant Employer with respect to the transfer of Mr Jeffery from Katoomba Public to Hazelbrook (‘section 11A’);
(e)Mr Jeffery was totally unfit for work from 4 November 2005 to date and continuing, and
(f)Mr Jeffery was entitled to payment of hospital and medical expenses.
SUBMISSIONS AND FINDINGS
Injury
The Appellant Employer’s argument is that Mr Jeffery’s interpretation of the events leading up to his transfer was erroneous and does not support his assertion that there was a ‘vendetta’ against him and that he developed his condition as a result that erroneous perception of external events and, as a result, his condition was not an injury related to his employment (Townsend v Commissioner of Police (1992) 25 NSWCCR 9 (‘Townsend’)).
The Arbitrator dealt with this submission at paragraphs 12 and 13 of his Statement of Reasons for Decision (‘Reasons’) where he said:
“12.However, the evidence in this case is of a quite different situation to that in Townsend, in which the claim for compensation was based on the worker’s perception of what others might have been thinking about the reasons for his transfer. The problem for the worker was that there was no evidence that the perception was soundly based on real events.
13.In Mr Jeffery’s situation, by contrast, the evidence is of a series of real events which are related directly to the development of his condition. The sequence of events was that after some 20 years working as a cleaner at Katoomba Public School, there was a complaint made by Mr Jeffery to the school principal about the state of a casual teacher’s room, Ms Wallace, and there had been some conflict between that teacher and Mr Jeffery. This does not appear to have been resolved.”
The Arbitrator then recounted the events of 25 October 2005 and the transfer to Hazelbrook. Those events were real. Mr Jeffery’s description of them as a ‘vendetta’ was an overstatement and not supported by the evidence. However, he was right to conclude that complaints had been made about him. As a result of those complaints and the unusual contractual arrangements between Tempo and the Department of Education, Mr Jeffery was transferred to Hazelbrook against his will. All of those events were true.
The evidence supported a finding that Mr Jeffery suffered an injury in the course of or arising out of his employment with Tempo and that his employment was a substantial contributing factor to that injury. Mr Jeffery’s injury is a psychological condition in the nature of depression with severe anxiety (report Dr Camacho, cognitive behavioural psychologist, dated 19 June 2005, page 17) or an adjustment disorder with depressed mood (report Pamela Costantini, clinical psychologist, dated 23 February 2006, page 16).
Whether Mr Jeffery’s injury resulted from the general nature and conditions of his employment or from “action taken or proposed to be taken by or on behalf of the employer with respect to” Mr Jeffery’s transfer to Hazelbrook is discussed below.
Section 11A
The Appellant Employer relies on Section 11A(1) of the 1987 Act which 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.”
The Appellant Employer must prove two things: first, that Mr Jeffery’s psychological injury was wholly or predominantly caused by action taken or proposed to be taken by it with respect to his transfer from Katoomba Public to another school, and, second, that the action taken or proposed to be taken was reasonable.
Did the action taken or proposed to be taken with respect to the transfer wholly or predominantly cause the injury?
In Mr Jeffery’s statement dated 14 February 2006 he said at paragraphs 13 and 14:
“13. The circumstances leading to my current condition started when I finished work 8 minutes early back in October 2005. Rhonda Wilson, who was my supervisor at the time saw me driving through Main Street Katoomba. The next morning at 8 o,clock [sic], both she and Marianne Berrier came to the school and presented me me [sic] with a warning letter stating that the next time this occurred, I would be faced with instant dismissal. I was required to sign this letter even though I had never had any previous warnings. They were only present for about 10 minutes. Following this incident, Marianne Berrier telephoned me and advised me that I had to go to Parramatta to see Barry Purcell [sic] (General Manager) due to a complaint from a teacher’s union representative. During my meeting with Barry Purcell [sic], Marianne Berrier, my union representative and another person whose name I can not remember, it was alleged that I was rude to a teacher (Sue Wallace) and that I swore at one of the pupils. I denied both of these allegations as in the entire time that I was employed at the school, I have never had any altercations with anyone. I did get cranky with Sue Wallace but at no time did I abuse her. These were the only incidents brought up at the meeting.
In the course of the meeting, I was advised that I would be transferred to work at Hazelbrook Public School. I told them that I refused to move to another school and that I would not accept this transfer. Following this meeting, marianne berrier brought a letter to the school advising me that I had 7 days to move to the new school. Shortly after, I received a letter from Tempo confirming their requirements following the meeting. This letter was dated 2 November 2005. Marianne Berrier drove me back to the school after the meeting. When we arrived back at the school, Marianne received a phone call on her mobile from barry Purcell [sic] and I was advised that I had to call him. I called him straight away and he confirmed that I had to move to hazelbrook and I advised him that I was not going. He then put me on to Feryial Kassim who said that if I did not move to Hazelbrook, I would not have a job.
I remained at Katoomba Public School for a further 7 days as they had to give me 7 days notice before they could move me.
On the final afternoon at katoomba, Marianne and Rhonda came to the schhool [sic] and told me that I had to leave the keys at the school and that under no circumstances, was I to set foot in the school again.
14. Following my last day at Katoomba Public School, I attended my local doctor Dr. Shah, and he certified me as unfit to attend work for 2 weeks due to stress. When I returned to him, he certified me as unfit for a further 4 weeks due to Stress and high blood pressure. As a result of the way I was treated by Tempo and the school, I feel that I have suffered unnecessarily from this stress and anxiety condition. I have never suffered from any [of] these conditions previously apart from mild blood pressure which has now become much worse. I put this condition down entirely due to the way in which I have been treated.”
At paragraph 19 he added:
“19. I feel that I have been unfairly treated in this whole matter and that I should have been given the opportunity of remaining at Katoomba public school. I feel that no consideration has been given to me by forcing me to leave a school in which I was happy working and moving me to another school.
I do not want to go to Hazelbrook school as it is too far to travel and I would have to get up at 4.am to go to work. If it were available, I would be prepared to return to Katoomba Public School to resume my previous employment. This would of course be dependant on being certified as fit to return to work by my treating doctor…” (emphasis added)
On the issue of causation, Mr Jeffery’s history in his statement of 15 September 2006 was:
“I worked very well at Katoomba Public School until I left work 8 minutes early one day and Rhonda Wilson [Mr Jeffery’s supervisor] saw me in the street. The next morning I [sic] Mary-Anne Berria [sic] at 7.50am came to the school and gave me a warning that if I was to leave work before my time I would be sacked. Then they forced [sic] transferred me to Hazelbrook Public School. All because of a casual teacher who’s room was so dirty all the time, I complained to the Principal about her filthy classroom. The principal said I had every right to complain about the room and the deputy also said she can’t leave her room like that.
So then the casual teacher Sue Wallace complained about me to the Union Rep saying I was rude and that I swore at a child, which I did not do.
I became extremely distressed and upset. I went to the doctor, Dr Shar [sic] and he put me on sick leave. He put me on anti depression tablets, blood pressure tablets as well as a high dose cholesterol tablet. Then he sent me to Dr comacho, a psychologist who spent some time with me and seemed to understand my problem.
I have been unable to work since the 4th November 2005 due to stress, anxiety and depression and I feel that I can’t cope with anything after what they have done to me. I was a loyal employee for 7 years and I didn’t receive one complaint about my work, I feel as if they have a vendetta against me.”
Mr Jeffery saw Dr Shah, general practitioner, at Katoomba on 4 November 2005. The doctor’s clinical notes for that date read: “cannot cope with his present work – work as a cleaner, Hazelbrook Public School – 160/90 – now [? not] taking his medications – started drinking again – married – 4 children – MC 4/11/05 – 18/11/05”. Mr Jeffery did not attend an appointment on 17 November 2005 but did see the doctor on 18 November 2005 when the following history was recorded by the doctor:
“Stress due to recent transfer
Ganglion (Rt) ventral of
forearm
Very heavy work at Hazelbrook
He was managing OK at Katoomba
working for Tempo cleaning service
total working 25 years
Not managing his job at
Hazelbrook
c- pain in (R) ganglion
shift is too long during the day”
The entry for 18 November 2005 records that a medical certificate was issued from 19 November to 21 December 2005.
Mr Jeffery saw Dr Shah on 20 December 2005 complaining that he “fell at night” when he struck a table. The next attendance was not until 23 January 2006. The notes for this occasion record:
“H/O posting to Hazelbrook from
Katoomba and loaded with extra work & causing physical
& mental stress.
Not coping [sic] the change
150/100”
The first medical certificate in evidence from Dr Shah is dated 23 January 2006. It diagnoses Mr Jeffery’s condition as being “anxiety stress” due to “transfer to a different location against his will”.
Dr Shah’s first medical report is dated 12 April 2006 addressed to Steve Masselos & Co, Mr Jeffery’s previous solicitors. It concluded, “transferring to a new location is a substantial contributing factor to Mr Jeffery’s condition”.
Dr Shah’s next report is dated 23 June 2006 and is addressed to Mr Jeffery’s current solicitors. In it Dr Shah recorded Mr Jeffery’s history of “recent transfer to a new location without his knowledge” and that his condition of Post Traumatic Stress Disorder was “consistent with the history provided”.
Mr Jeffery saw Dr Camacho at the request of his solicitor on 19 June 2006. Under “Work Accident History” he recorded that on 4 November 2005 Mr Jeffery could not continue working due to severe anxiety attacks and depression and that “he had been removed form [sic] his usual position at Katoomba Public School and placed in Hazelbrook Public School [against his will] due to complaints made by a new casual teacher”. At page four Dr Camacho records that Mr Jeffery’s symptoms of depressive mood with anxiety developed “after the work incident on 04 November 2005”.
Ms Costantini’s report of 23 February 2006 recorded a history from Mr Jeffery very similar to that set out at [27] above. After recording that history Ms Costantini concluded at page 14:
“Based on the information available at the present time, it is concluded that the whole factor causing the development of Mr Jeffery’s psychological condition was related to being required to transfer to a different school following complaints against him. Mr Jeffery reported that he does not feel fairly treated through this process and does not want to transfer to a different school as it is too far for him to travel. Mr Jeffery took leave from work after his last day at Katoomba Public School where he was asked to hand in his keys to management and not to return to that school. Therefore, employment was identified as a substantial contributing factor to the development of Mr Jeffery’s psychological condition.
It is also concluded that the whole contributing factor to the development of Mr Jeffery’s psychological condition was related to the process of Transfer which is an industrial issue.” (emphasis added)
The Appellant Employer’s submission is that Mr Jeffery’s transfer from Katoomba Public to Hazelbrook has wholly or predominantly caused his psychological condition. The Arbitrator stated at paragraph 14 of his Reasons that the medical evidence was that the warning letter of 23 September 2005 was “not implicated in the psychological injury”. I agree with that conclusion.
At paragraph 23 of his Reasons the Arbitrator stated that the evidence was that the injury:
“…did not arise wholly or predominantly from the administrative action of the Respondent in effecting the transfer, but from the sense of injustice reasonably felt by Mr Jeffery because of the unfairness of the activity against him leading up to the transfer. A lot of this had nothing to do with the Respondent, and I agree with its submissions to that extent, but stems from the actions taken, or not taken, by the school. Mr Jeffery has not been afforded the principles of natural justice he could, and should, have been afforded. A transfer is not in the same category as dismissal, but in Mr Jeffery’s circumstances of such a long term relationship with one workplace, his right to be heard was essential before what to him was a very significant action.”
The evidence quoted above does not support the Arbitrator’s conclusion on this issue. Mr Jeffery’s complaint about the “sense of injustice” he felt because of the “unfairness of the activity against him leading up to the transfer” relates specifically to the transfer process and the reasons given for it. It is not possible to separate Mr Jeffery’s sense of injustice from the transfer process, which arose directly from the complaints which Mr Jeffery felt were unfair and unjustified. His medical case does not suggest that his injury resulted from the letter of 23 September 2005 or from the clash with Sue Wallace. What was critical was the effect on him of the process of the transfer, namely, the communication to him of the complaints and his feeling that it was unfair that he should be transferred. Mr Jeffery’s statement confirms that he felt he had been unfairly treated and that he “should have been given the opportunity of remaining at Katoomba Public”. The unfairness related to the fact of and reasons for the transfer. That is confirmed by Dr Shah’s notes, which record no complaints about a ‘vendetta’ or feud but include a statement to the opposite affect, namely, that “he was managing OK at Katoomba”. Dr Shah’s reports and medical certificates state that Mr Jeffery’s injury occurred as a result of his “transfer to a different location against his will”. This view is consistent with the evidence from Dr Camacho and Ms Costantini set out above. The evidence is clear that Mr Jeffery’s injury resulted wholly or predominantly from the action taken by Tempo with respect to his transfer and the manner in which it was communicated to him and that is the finding I make.
The Arbitrator was in error in finding that the injury “did not arise wholly or predominantly from the administrative action of the Respondent in effecting the transfer”.
Was the Appellant Employer’s action with respect to the transfer reasonable?
In Manly Pacific International Hotel v Doyle (1999) 19 NSWCCR 181 Fitzgerald JA (Mason P concurring) held at 183:
“The worker is entitled to be compensated for psychological injury caused or predominantly caused by the communication of a decision or proposal to transfer him or her where the decision or proposal or the manner in which the decision or proposal is communicated were unreasonable.”
The words “reasonable action” in section 11A were considered by the Court of Appeal in Commissioner of Police v Minahan [2003] NSWCA 239 where Foster AJA (with Sheller JA agreeing) cited with approval the following passage from Irwin v Director-General of School Education (Matter No. 14068/97, unreported, 18 June 1998) where Judge Geraghty 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 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.”
Foster AJA also approved the following passage from Ivanisevic v Laudet Pty Limited (unreported, 24 November 1998) where Judge Truss said, “…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 is was effected”.
Applying the above tests to the present matter and considering all of the evidence the following matters are relevant.
First, the Appellant Employer’s contract with the Department of Education expressly provided that a school principal may “without being required to give any reason direct the Contractor not to engage a particular person as staff at a Contract Facility and the Contractor must comply with such direction” (emphasis added). The Principal at Katoomba Public gave such a direction to the Appellant Employer. Though she was not obliged to do so, she also provided written material that set out the reasons for her direction. That request was not something the Appellant Employer was entitled to ignore. It was not based solely or even mainly on the altercation between Mr Jeffery and Sue Wallace though that was certainly one of the issues.
Second, on receipt of the Principal’s direction a meeting was arranged with Mr Jeffery on 25 October 2005. At that meeting Mr Jeffery’s union representative was present. Some of the allegations against Mr Jeffery were put to him and he denied any wrongdoing except that he did admit to ‘getting cranky’ with Sue Wallace. His denials were noted. Mr Jeffery was informed that he was to be transferred to another school. Whether this was Hazelbrook or Katoomba High is the subject of conflicting evidence. There is no reason not to accept the Appellant Employer’s assertion that it initially stated that Mr Jeffery would be transferred to Katoomba High but that opportunity was later unavailable (see factual investigation report Brian Ross & Associates, 17 February 2006, page five).
Third, it is suggested that the Appellant Employer’s General Manager (Mr Purssell) said that he would speak to the Principal to see what he could do but the Principal still wanted Mr Jeffery transferred (see report Ms Costantini, page five). No statement was tendered from Mr Purssell and it is difficult to know how much weight to place on this part of the factual report. If Mr Purssell did speak to the Principal in an attempt to persuade her to allow Mr Jeffery to stay at Katoomba Public, that was clearly a reasonable step to take but the failure to speak to the Principal would not, on its own, have amounted to a failure by the Appellant Employer to act reasonably in all the circumstances.
Fourth, when the transfer to Katoomba High was not available, Mr Jeffery was advised he would be transferred to Hazelbrook, a suburb about an 18-minute drive from his home in Katoomba.
Fifth, Mr Jeffery’s transfer to Hazelbrook was confirmed in a letter to him from Tempo dated 2 November 2005. This letter stated:
“Dear Peter
During recent discussions with you, both individually and at a meeting with Amelia Sereno (LHMU), Victoria Carroll, Marianne Berrier and myself, you were advised there were a number of serious concerns raised by our client at Katoomba Primary [Public] School regarding your behaviour in the workplace. You denied there was any substance to those concerns.
You were advised that as a result of this we would be transferring you to another site in your local area.
In all the circumstances we believe that the transfer to Hazelbrook Public School that you commenced today, 2 November 2005, will be beneficial to you in your ongoing employment.
As discussed with you it is essential to ensure a healthy working environment, that is productive and meets our client’s requirements and that you have agreed to follow our Company policies; in particular:
Child Protection
Each employee has an obligation to act appropriately in the workplace. Inappropriate behaviour includes swearing, raising your voice, touching, or intimidating a child etc.
Every employee must also report any suspected risk or harm to a child to the Workplace Manager and/or the Area Manager.
Relationships with the client and co-workers
It is most important that you maintain a professional relationship with our client and your co-workers at all times. Peter, it is important that you understand it is not appropriate to be rude or intimidating in the workplace and this cannot be tolerated.” (emphasis added)
The letter then set out Mr Jeffery’s hours of work and instruction on how he was to deal with any problem with a teacher or classroom. It then continued:
“As discussed with you and as detailed above, adherence to these matters is vital to the successful operation of our business and to ensure the safety of our staff. As is the case for any of our employees, it is important to understand that failure to comply with them could lead to disciplinary action, up to and including termination of employment.
Peter, we will do whatever we can to help you achieve a positive outcome, however at the end of the day it is up to you.
If you wish to discuss further please do not hesitate to contact Marianne (0419 632 354) or Feryial Kassim (0417 273 508). Please sign the attached copy of this letter and return it to our office in the envelope provided by Tuesday 8 November 2005.” (emphasis added)
In my view the general tone and style of this letter was constructive, encouraging and supportive. In terms of the legislation it was ‘reasonable’ and, in the circumstances, appropriate.
The Respondent Worker submits that:
a) the process lacked any “assemblance [sic] of natural justice as ‘the Principal wanted Mr Jeffery removed from the site but did not want him to be advised of this which make [sic] it difficult for management to explain the situation to Mr Jeffery…the complaints were discussed with Mr Jeffery who denied them…’” (see Respondent Worker’s submissions, page two, quoting from page four of the report of Mr Costantini);
b) Mr Jeffery was correct to perceive that he was being treated unfairly by Tempo;
c) the union representative stated that Tempo was not acting in Mr Jeffery’s best interests;
d) Tempo made no attempt to mediate the issue or pay any consideration to a worker who had been working at Katoomba Public for a period in excess of 20 years;
e) Tempo’s actions showed a total lack of consideration and communication;
f) the actions of the Department of Education through Katoomba Public were inconsistent as if there were any real or genuine child protection issues, as argued by Tempo, then those issues would apply to any school;
g) “the inference of such allegation without the opportunity of response was distressing and offensive and based [sic] unreasonable” (Respondent Worker’s submissions page four), and
h) it was unfair for a third party to dictate to an employer where that employer’s workers should be located and this caused Mr Jeffery great distress without the opportunity of a suitable response and the support of his employer which was lacking in this case.
Exactly what Mr Jeffery was told of the complaints against him was the subject of conflicting and incomplete evidence. Ms Carroll stated, “we advised Mr Jeffery of the allegations against him”. She did not identify the complaints communicated to Mr Jeffery. Mr Jeffery stated that the only complaints he was informed of were those about the conflict with Sue Wallace and that he allegedly swore at a student, both of which he denied. However, the Respondent Worker’s submissions on this issue miss the point: assuming that Mr Jeffery’s recollection is correct as to the complaints related to him, Tempo was not in a position to investigate the complaints and there was no purpose to be served by telling Mr Jeffery about all of the allegations. If Tempo was intending to take disciplinary action against Mr Jeffery, that would be a different matter. However, it did not take any such action. Tempo merely complied with a direction the Principal was entitled to give and it was contractually bound to follow.
From Mr Jeffery’s perspective, it was unfair that he was transferred to another school over his objection. However, the test of reasonableness under section 11A is an objective one having regard to all the evidence. No evidence was tendered and no argument was pressed to suggest that Tempo had available to it any other option that it unreasonably failed to pursue.
It is not to the point to say that Tempo did not act in Mr Jeffery’s ‘best interests’. That is not the test in section 11A. The test requires that all the circumstances be examined to determine whether, on an objective assessment, the employer’s actions or proposed actions with respect to the transfer were reasonable.
It appears correct that Tempo did not attempt to mediate the issue. In the face of the Principal’s inflexible attitude, I do not believe that mediation would have been of any benefit. In any event there is no evidence that Mr Jeffery or his union representative requested mediation, or that the Principal would have agreed to it. Tempo did not have control of the work environment or the manner in which the complaints were handled. The failure to arrange mediation was not evidence of unreasonable behaviour by Tempo.
I do not agree that Tempo’s actions showed a lack of consideration or communication. It acted promptly to arrange a meeting with Mr Jeffery after it received the direction from the Principal. A letter was said to have been given to Mr Jeffery on 26 October 2005, though it is not in evidence. The letter of 2 November 2005 noted Mr Jeffery’s denial of the allegations made. It was encouraging and positive in stating that the move to Hazelbrook was seen as ‘beneficial’ to Mr Jeffery’s ongoing employment. There is no reason to doubt the sincerity of that statement.
The concerns about child protection issues were obviously not so great that Mr Jeffery had to be removed from all school environments. This issue was not the only issue of concern to Ms McCarthey.
The allegations against Mr Jeffery may well have been distressing but it was not the allegations on their own that were the predominant cause of Mr Jeffery’s injury. It was the communication of the decision to transfer him based on allegations he felt were false. If the Respondent Worker’s submission is that the allegations were distressing because they were baseless and unreasonable, I do not accept that submission. The allegations were in writing from several different sources. The Principal was not entitled to ignore them and Tempo was not entitled to ignore the Principal’s direction.
I agree that there is an element of unfairness in a situation where a third party can dictate to an employer that one of the employer’s employees must be moved from a particular work site. However, the relationship between Tempo and the Department of Education gives rise to special considerations requiring unusual provisions. Tempo agreed to be bound by those terms. Had Tempo been motivated by irrelevant or totally capricious matters, then it would be open to argue that its transfer of Mr Jeffery was unreasonable within the terms of section 11A. That argument cannot be sustained in the present matter. The Principal gave reasons in support of her direction that Mr Jeffery be transferred. She supported those reasons with written evidence of complaints that directly related to Mr Jeffery’s duties with Tempo. Under the terms of the contract with Tempo the Principal was entitled to issue that direction. Tempo had no practical option but to comply with it. It did so in a way that attempted to reduce the impact on Mr Jeffery and it reassured him in writing that the move was “beneficial” and that it would do whatever it could to help him “achieve a positive outcome”.
Having regard to the whole of the evidence it is my view that the Appellant Employer’s action taken with respect to the transfer was not only ‘reasonable’ but also met the more demanding test referred to by Judge Geraghty of ‘necessary’.
Conclusion
Given the above findings the Arbitrator was in error in finding that section 11A did not provide a defence to the claim. The Arbitrator’s decision must be revoked and there must be an award for the Appellant Employer. In view of this conclusion it is not necessary to consider the Appellant Employer’s remaining grounds of appeal as to the quantum of the award made by the Arbitrator.
DECISION
The Arbitrator decision and orders dated 11 January 2007 are revoked and the following orders made:
“1.Award for the Respondent employer.
2.No order as to costs.”
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
23 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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