The worker’s claim in respect of a psychological injury failed, as the employer succeeded in establishing a defence pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). This appeal involves a challenge by the worker to the Arbitrator’s acceptance of that defence. For reasons which follow, the appeal would not succeed on its merits, and an application to extend the time for bringing the appeal, pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules) is refused.
BACKGROUND
Antoinette Mascaro worked for Inner West Council (previously Marrickville Council) (the Council) as a childcare worker from 7 August 1989. From about 1991 Ms Mascaro was a director of childcare centres conducted by the Council, most recently the May Murray Early Learning Centre. In an incident on 12 September 2014, a supervisor (Wada Amacha) who was subordinate to Ms Mascaro at the May Murray Centre, spoke to Ms Mascaro in a way Ms Mascaro found aggressive and threatening. Ms Mascaro reported this to the Council. The Council conducted an investigation, interviewing staff at the May Murray Centre. Concerns were raised about Ms Mascaro’s leadership at the Centre. On 24 October 2014 Ms Mascaro was transferred to the Tillman Park Early Learning Centre. She did not have the responsibilities of a director at that centre, but was a staff member.[1]
[1] Reply, p 51.
On 12 November 2014 the complaint by Ms Mascaro against Ms Amacha, and a complaint by Ms Amacha against Ms Mascaro, were both dismissed, in memoranda issued by Elaine Keenan, the Council’s Workplace Relations Coordinator.[2] On 13 November 2014, in a ‘Formal Counselling Report’ signed by Louise Brennan, Acting Manager, Children and Family Services, it was concluded that allegations that Ms Mascaro told staff to have children keep their voices down, did not adhere to staff/children ratios, and was rude to staff, were substantiated. The document stated:
“… the behaviours outlined above are not…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Mascaro v Inner West Council [2018] NSWWCCPD 29
Case
[2018] NSWWCCPD 29
Decision Date
CaseChat Overview and Summary
The case of Mascaro v Inner West Council involved Ms Mascaro, a director of an early learning service, and the Inner West Council, her employer. Ms Mascaro sought an extension of time to bring her claim under the Workers Compensation Act 1987 (NSW), and the Council opposed the application. The case was heard by the Arbitrator who needed to decide whether Ms Mascaro was able to demonstrate that there were exceptional circumstances that warranted the extension of time. The Arbitrator was required to determine whether the findings of the Commission outside the pleadings were relevant to the decision on the application for an extension of time, and whether the test in Banque Commerciale SA v Akhil Holdings Ltd applied. Additionally, the Arbitrator had to consider the causation test in s 11A(1) of the Workers Compensation Act 1987 (NSW), and the meaning of 'discipline' in that section. Finally, the Arbitrator had to evaluate the reasonableness of the decision to dismiss Ms Mascaro.
The Arbitrator held that the findings of the Commission outside the pleadings were relevant to the decision on the application for an extension of time, and that the test in Banque Commerciale SA v Akhil Holdings Ltd applied. The Arbitrator found that Ms Mascaro was unable to demonstrate that there were exceptional circumstances that warranted the extension of time. The Arbitrator found that the Council had established a prima facie case of disciplinary action being a sufficient cause of Ms Mascaro’s psychiatric injury. The Arbitrator also found that the decision to dismiss Ms Mascaro was reasonable. The Arbitrator held that the Council had a legitimate aim in dismissing Ms Mascaro, and that the decision to dismiss was not disproportionate to that aim.
The Arbitrator dismissed the application for an extension of time. The Arbitrator found that the decision to dismiss Ms Mascaro was reasonable and that there were no grounds to interfere with that decision.
Orders
Orders of the court
1. The application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The Arbitrator’s findings at [81] refer to a Formal Counselling Report dated 13 November 2014, which informed Ms Mascaro that the complaints against her had been substantiated.[131] The “Conclusion”, “Findings” and “Outline Counselling and Action Plan for Improvement” in the document read:[131] Reply, p 82.“ConclusionThe allegations from all staff at May Murray are consistent and of concern to Council in particular the allegations that Ms Mascaro does not ‘cope’ with children making noise and tells staff to make sure the children keep their voices down.‘We have to remind the children to keep their voices down because it upsets her’.Not adhering to the ratios;‘We need 3 staff for the 21 children I don’t know why I have to remind her of this, she is the director’.There was also a general view that Ms Mascaro was rude to staff;‘She can be an emotional bully. This is something she does with the manner in how she talks to people and in her body language’.”“FindingsBased on interviews with staff and Ms Mascaro’s written response it is found that the three allegations as set out in the conclusion section of this report are substantiated.It is Ms Mascaro’s view that she is the leader of her service however the leadership skills she displays on occasion, and highlighted by all her staff, suggest that this leadership style is not always compatible with Council’s values or C2R2, Collaborate, Creative, Respectful and Responsive (copy of values attached)Ms Mascaro has been at Council for many years and it is recognised that she has many skills to offer Council in the CFS area and as such Council does not intent to issue a formal warning to Ms Mascaro. However the behaviours outlined above are not acceptable and formal counselling will be issued. Ms Mascaro will also be provided with a development plan to assist her to develop her leadership skills.”“Outline Counselling and Action Plan for ImprovementThis report is to be considered a formal counselling in relation to allegations set out in the conclusion section of this documentThis counselling document will be placed on your personal fileYou will be provided with a comprehensive development plan (tabled today) and work with me and the Acting Coordinator of Early Learning, Ms Pappas.As part of the development plan you will remain at Tillman Park for the next 3 months and at that time the plan will be reviewed including your return to May Murray.While at Tillman Park you will not accrue time in lieuYou have been booked into Council’s training ‘Workplace Ethics and Conflict’ on 16 and 17 December 2014.Any further incidents of inappropriate/unprofessional behaviour may lead to further disciplinary action.” The Arbitrator’s findings at [81] continue. He records that on 14 November 2014 Ms Mascaro attended a meeting to discuss the report. The Arbitrator records that on 15 December 2014 Ms Mascaro met at the Tillman Centre with Ms Brennan, Ms Jackson and another person to discuss the mentoring program, which was then expected to commence on 15 January 2015. The material includes a document that describes that meeting. The text is dated “15 January 2014”, although an “investigator note” at the top of the document records that its correct date is 15 December 2014.[132] It states that Ms Brennan said that “this program had been designed as an ‘in house’ tool, to assist in further developing [Ms Mascaro’s] skills and knowledge as the Director of an Early Learning service.” It records Ms Mascaro saying that “although she has previously expressed an interest in further training, that this was not the type of situation she had in mind, that the circumstances of this program were not what she wanted and not something she had requested.” The document records discussion about how the program was to be arranged.[132] Reply, p 87.