Mascaro v Inner West Council
[2018] NSWWCCPD 29
•12 July 2018
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Mascaro v Inner West Council [2018] NSWWCCPD 29 | |
| APPELLANT: | Antoinette Mascaro | |
| RESPONDENT: | Inner West Council | |
| INSURER: | StateCover Mutual Limited | |
| FILE NUMBER: | A1-1424/17 | |
| ARBITRATOR: | Mr R Perrignon | |
| DATE OF ARBITRATOR’S DECISION: | 8 January 2018 | |
| DATE OF APPEAL HEARING: | 18 June 2018 | |
| DATE OF APPEAL DECISION: | 12 July 2018 | |
| SUBJECT MATTER OF DECISION: | Extension of time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011; pleadings in the Commission and finding outside matters alleged – application of Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; 169 CLR 279; the causation test in s 11A(1) of the Workers Compensation Act 1987; ‘discipline’ in s 11A(1); the evaluative judgment of ‘reasonableness’ | |
| PRESIDENTIAL MEMBER: | Acting President Michael Snell | |
| HEARING: | Oral | |
| REPRESENTATION: | Appellant: | Mr P Stockley, instructed by Carroll & O’Dea |
| Respondent: | Mr D Saul, instructed by Bartier Perry | |
| ORDERS MADE ON APPEAL: | 1. The application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused. | |
INTRODUCTION
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 acceptable and a formal counselling will be issued. Ms Mascaro will also be provided with a development plan to assist her to develop her leadership skills.”[3]
[2] Reply, pp 80–81.
[3] Reply, pp 82–84.
On 12 January 2015 Ms Mascaro commenced a ‘Professional Development and Mentoring Program’, conducted at the Tillman Park Centre. Her mentor was Liz Jackson, the Acting Coordinator, Early Learning.[4]
[4] Reply, pp 87–89.
A meeting was held on 16 March 2015, attended by Ms Jackson, Ms Brennan and Ms Groth (the People and Workforce manager), together with Ms Mascaro and her support person. Ms Mascaro was told that, after taking a pre-arranged period of extended leave, she would be required to continue at the Tillman Park Centre, undertaking the mentoring program again. Ms Mascaro was upset by this.[5] She saw her general practitioner, Dr Kiu, on 17 March 2015, and was given a certificate of incapacity.[6] She lodged a claim form dated 24 March 2015.[7] StateCover Mutual Limited (the insurer) declined liability in a s 74 notice dated 2 July 2015. It denied the occurrence of ‘injury’, and also raised the application of s 11A(1) of the 1987 Act as a defence.[8]
THE ARBITRAL PROCEEDINGS AND DECISION
[5] Reply, pp 191–193.
[6] Reply, p 35.
[7] Reply, pp 103–106.
[8] Application to Resolve a Dispute (ARD), pp 74–93.
The Commission proceedings were commenced on 22 March 2017, and initially listed for arbitration hearing on 7 June 2017. Mr Morgan appeared for Ms Mascaro, and Mr Saul for the Council. Much of the available time was expended in attempts at conciliation, which ultimately were unsuccessful, and the matter was listed for further hearing on 21 June 2017, when it proceeded. Neither party sought to adduce oral evidence or to cross-examine. The matter proceeded on the documentary material, and Mr Saul addressed on the Council’s behalf. There was insufficient time for the matter to conclude, and it was relisted for further hearing on 28 July 2017. On the next occasion Mr Morgan was unavailable to appear for Ms Mascaro, and Mr Stockley appeared for her. There were difficulties, as a transcript was not available from the earlier date when the matter proceeded. Orders were made for the lodgment of written submissions. Mr Stockley’s submissions were lodged on 28 August 2017, and submissions in reply by Mr Saul were lodged on 1 September 2017. A Certificate of Determination was issued on 8 January 2018, accompanied by 16 pages of reasons.[9]
[9] Mascaro v Inner West Council [2018] NSWWCC 3 (Decision).
The Arbitrator summarised the lay and medical evidence. He made multiple factual findings, which were described as being based on uncontradicted evidence, Ms Mascaro’s statement and medical histories.[10] He said:
“The weight of medical evidence supports the existence of a Major Depressive Disorder or Episode by late 2016, and I accept that diagnosis.”[11]
[10] Decision, [81].
[11] Decision, [86].
Dealing with causation, the Arbitrator said that Ms Mascaro was “distraught and upset” by the altercation with Ms Amacha (on 12 September 2014), and “there is no evidence that this distress abated at any stage”. The requirement for mentoring also caused “significant distress”. He said he was satisfied that all these events contributed substantially to Ms Mascaro’s distress, and to her contraction of a psychological illness. He was “satisfied that, together, these stressors were the main contributing factor to her psychological injury”. He said it was “unlikely” that the transfer to the Tillman Park Centre caused ongoing distress, as this occurred at Ms Mascaro’s own request.[12]
[12] Decision, [87]–[89].
Dealing with whether relevant actions by the Council were the whole or predominant cause of the psychological injury, the Arbitrator said the altercation on 12 September 2014 “contributed substantially to its onset”. He then referred to other “causative stressors”, the communication on 13 and 14 November 2014 of adverse findings against Ms Mascaro, the requirement that she undergo mentoring, the administration of the mentoring program from 12 January 2015, and the communication on 16 March 2015 that she would need to repeat the mentoring program due to “the lack of satisfactory progress”. He concluded that these actions by the Council were the “predominant cause of her psychological injury”. They were “more numerous” than the single incident involving the altercation. Ms Mascaro’s condition deteriorated during the mentoring program. The actions of the employer were “more proximate than the initial altercation to her taking sick leave on 17 and 18 March 2015”. He was satisfied that by that time she had developed the Major Depressive Disorder.[13]
[13] Decision, [91]–[92].
The Arbitrator referred to Northern NSW Local Health Network v Heggie,[14] quoting from the summation of principle at [59] of that decision. He concluded that the Council’s investigation of the allegations made against Ms Mascaro, and the outcomes of that investigation, including communication of the adverse findings, administration of the mentoring program, and the communication on 16 March 2015, were appropriately characterised as actions with respect to ‘discipline’.[15]
[14] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[15] Decision, [94]–[96].
The Arbitrator noted that the reasonableness of these actions was “to be determined objectively weighing all the relevant factors”. He referred to Irwin v Director-General of School Education.[16] He concluded that the relevant actions of the Council with respect to ‘discipline’ were “reasonable”.[17]
[16] Compensation Court of NSW, Geraghty CCJ, 18 June 1998, no 14068 of 1997, unreported (Irwin).
[17] Decision, [97]–[107].
The Arbitrator found that Ms Mascaro had “suffered a psychological injury in the course of and arising out of her employment with the [Council], as a result of an accumulation of stressors experienced in the workplace from 12 September 2014 to 16 March 2015”. However, he also found that this injury “was predominantly caused by reasonable actions of the [Council] with respect to discipline, in terms of section 11A”, and he entered an award in favour of the Council.
ON THE PAPERS
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.”
Both parties initially submitted that the appeal could be determined on the basis of the documents. For reasons that appear below, I appointed a telephone conference on 6 June 2018, followed by a further telephone conference on 12 June 2018. On the second of those, following discussion, the matter was listed for an oral hearing, which was held on 18 June 2018. Mr Stockley appeared for Ms Mascaro. Mr Saul, instructed by Mr Franco, appeared for the Council.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met. The Application – Appeal Against Decision of Arbitrator was initially lodged on 6 February 2018, and was rejected due to procedural deficiencies and on the basis that it was out of time. It was re-lodged on 19 February 2018, accompanied by submissions in support of an extension of time.
THE APPLICATION TO EXTEND TIME
Section 352(4) of the 1998 Act provides:
“An appeal can only be made within 28 days after the making of the decision appealed against.”
The extension of time is governed by r 16.2(12) of the Rules, which provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
Ms Mascaro’s submissions on time
These submissions were prepared by Mr Stockley, and include factual assertions which are not challenged in the Council’s submissions. I deal with the submissions on the basis that the factual background is accurate.
Ms Mascaro submits that copies of the Arbitrator’s decision were forwarded by the appellant’s solicitor to both Mr Morgan and Mr Stockley, who had appeared for Ms Mascaro in the matter at different times. Mr Morgan was absent on leave, overseas until 5 February 2018. Mr Stockley undertook to prepare any appeal. Funding for the costs of the appeal was approved on 15 January 2018, and Mr Stockley, on 17 January 2018, agreed to draft the appeal documents. This required “significant preparation time”. He said that he incorrectly diarised the appeal as being due to be filed on 8 February 2018, he cannot recall why. He emailed the draft documents to Ms Mascaro’s solicitors on 6 February 2018. Ms Mascaro’s submissions identify various explanations for the late filing. They refer to the intervention of the holiday period, the involvement of two counsel on her behalf and the fact that the hearing had concluded several months previously. They also refer to the mistake about the due date for lodging the appeal.
Ms Mascaro submits her rights potentially involve a substantial entitlement, which she will be forever barred from exerting if time is not extended. There was no personal delinquency on her part. When the original attempt to lodge the appeal was made, it was only one day out of time. She submits it is difficult to see there could be any prejudice to the Council. She says the interests of justice favour an extension.
The Council’s submissions on time
The Council opposes the extension of time. The reasons given involve “clerical/administrative oversights by the appellant’s lawyers”. Reference is made to Vaughan v Secretary, Department of Education.[18] It submits that ‘exceptional circumstances’ have not been established, and the Council has a vested interest in retaining the decision in its favour, subject to the application to extend time. The Council correctly observes that “the prospects of success are important in considering whether the discretion should be exercised”. It submits that the appeal cannot succeed on its merits, and “the merits of the appeal require consideration” in determining the application to extend time.
[18] [2018] NSWWCCPD 1.
Consideration
The applicable principles, taken from Gallo v Dawson,[19] were summarised by Roche DP in Allen v Roads and Maritime Services as involving the need to have regard to the following:
“(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties of the grant or refusal of the application for the extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.”[20]
[19] [1990] HCA 30; 93 ALR 479; 64 ALJR 458.
[20] [2015] NSWWCCPD 39, [31].
In Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd, the Court of Appeal said:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a) the extent of the delay and the reasons therefor;
(b) the prejudice to the applicant if the application were to be refused;
(c) the prejudice to the defendant from the delay if the application were to be granted;
(d) the prospects of success on the proposed appeal.”[21]
[21] [2014] NSWCA 34, per Basten JA (Beazley P and Leeming JA agreeing), [9].
Additionally, a Presidential member, dealing with an application to extend time pursuant to r 16.2(12), is required to consider the presence of ‘exceptional circumstances’, as “a matter within jurisdiction as opposed to a precondition”.[22]
[22] Bryce v Department of Corrective Services [2009] NSWCA 188 (Bryce) per Allsop P (Beazley and Giles JJA agreeing), [8].
Campbell JA, in Yacoub v Pilkington (Australia) Ltd,[23] dealt with the phrase “exceptional circumstances”, in the context of r 31.18(4) of the Uniform Civil Procedure Rules 2005. His Honour said:
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912–913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912–913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”
[23] [2007] NSWCA 290 (Yacoub), [66].
Campbell JA in Yacoub said that in deciding whether ‘exceptional circumstances’ were present, it was necessary to bear in mind the statement of objectives in ss 56–59 of the Civil Procedure Act 2005. Similarly I have held that where the phrase appears in r 16.2(12) of the Commission’s Rules, it is appropriate to consider the phrase in the context of the ‘System objectives’ and ‘Procedure before the Commission’, described in ss 3 and 354 respectively, of the 1998 Act.[24]
[24] Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1, [23].
Ms Mascaro’s submissions do not specifically address the topic of whether ‘exceptional circumstances’ are established. Whilst the holiday period, the involvement of two counsel on Ms Mascaro’s behalf, and the effluxion of time since the arbitration hearing concluded are referred to, these factors were not causative of the appeal being lodged out of time. On the basis of the submissions, the reason the appeal was not lodged within time was that Ms Mascaro’s counsel inadvertently diarised an incorrect date for when the appeal needed to be lodged.
In O’Carroll Constructions Pty Ltd v Burgess[25] Roche DP said that “inadvertence or administrative errors by a legal practitioner do not amount to exceptional circumstances”, citing Department of Education & Training v Mekhail[26] and Department of Corrective Services v Buxton.[27] Whilst it depends on the circumstances of the particular case, ‘exceptional circumstances’ are not, in my view, present in the current matter.
[25] [2007] NSWWCCPD 224, [22].
[26] [2006] NSWWCCPD 1.
[27] [2007] NSWWCCPD 55.
There is nothing in the history of the proceedings, the conduct of the parties or the nature of the litigation which is relevant one way or the other. The following factors support the extension of time:
(a) the delay is relatively short. The appeal was originally sent for lodgment one day out of time, and was lodged in its amended form on 19 February 2018, 14 days out of time;
(b) the delay is explained, and
(c) prejudice is not asserted.
The following factors militate against the extension:
(a) ‘exceptional circumstances’ are not present, and
(b) the Council has a vested interest in retaining the result in its favour.
The merits of the appeal are important in determining whether the interests of justice favour the extension of time. The merits of the grounds of appeal are fully considered below. For reasons that follow, Ms Mascaro’s appeal would not succeed on its merits, if time were extended. In those circumstances, there is no prejudice to her if the application to extend time is not granted. Ms Mascaro’s application to extend time pursuant to r 16.2(12) of the Rules is refused.
GROUNDS OF APPEAL
The following grounds of appeal are raised:
(a) The Arbitrator did not identify the correct test of causation in considering the defence pursuant to s 11A(1) of the 1987 Act (ground no 1).
(b) The Arbitrator did not apply the correct test of causation in considering the defence pursuant to s 11A(1) of the 1987 Act (ground no 2).
(c) The Arbitrator failed to consider the opinion of Dr Allnutt, that Ms Mascaro’s deteriorating psychological state, after 12 September 2014, compromised her capacity to perform adequately in a mentoring program (ground no 3).
(d) In considering the test of causation when assessing the defence pursuant to s 11A(1) of the 1987 Act, the Arbitrator took account of the causal contribution of workplace events other than those he had found to constitute ‘injury’ within the meaning of s 4 of the 1987 Act (ground no 4).
(e) The Arbitrator erred in determining that the requirement that Ms Mascaro participate in a mentoring program constituted action in respect of ‘discipline’ for the purposes of s 11A(1) of the 1987 Act (ground no 5).
(f) The Arbitrator erred in finding that the actions of the Council in respect of discipline were ‘reasonable’ (ground no 6).
THE STATUTORY PROVISION
Section 11A(1) of the 1987 Act provides:
“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 Council carries the onus of establishing the defence.[28]
[28] Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 (Sinclair), [18].
GROUND NO 1
Failing to identify the correct test of causation in considering the defence pursuant to s 11A(1) of the 1987 Act
GROUND NO 2
Applying an incorrect legal test to the question of causation for the purposes of the s 11A(1) defence
GROUND NO 3
Failing to consider the opinion of Dr Allnutt, that Ms Mascaro’s deteriorating psychological state, after 12 September 2014, compromised her capacity to perform adequately in a mentoring program
GROUND NO 4
Assessing the causal contribution of workplace events, for the purposes of the s 11A(1) defence, having regard to events other than those found to constitute ‘injury’
These grounds raise related issues, going to how the Arbitrator dealt with the test of causation in s 11A(1) of the 1987 Act. It is convenient to deal with them together. It is necessary to deal with the pleadings and how the case was conducted, in respect of the altercation on 12 September 2014, as this event was found to be contributory to the psychological injury, and was not action by the Council which fell within the s 11A(1) defence. The respective contributions of this event, as opposed to other matters, were considered by the Arbitrator, in dealing with whether the causal test in s 11A(1) was satisfied.
Ms Mascaro’s submissions
Ms Mascaro submits that the relevant part of the decision is at [91]–[92], which reads:
“91. It cannot be said that the actions of the employer were the whole cause of Ms Mascaro’s psychological injury, because I am satisfied that the altercation with Ms Amacha on 12 September 2014 contributed substantially to its onset.
92. However, I cannot accept the submission, eloquently advanced by the applicant’s counsel, that this incident was the predominant cause. All the other causative stressors – the communication on 13 and 14 November 2014 of adverse findings against Ms Mascaro and the requirement that she undergo mentoring, the administration of that mentoring program at Tillman from 12 January 2015, and the communication to her on 16 March 2015 that she must repeat it for lack of satisfactory progress – were all actions of the employer. Because they were more proximate than the initial altercation to her taking sick leave on 17 and 18 March 2015, by which time I am satisfied she had developed the Major Depressive Disorder or Episode, and because they were more numerous than the single altercation on 12 September 2014, and because her condition deteriorated during the course of the mentoring program, I am satisfied that these actions of the employer were, together, the predominant cause of her psychological injury.”[29]
[29] Decision, [91]–[92].
Ms Mascaro submits that the Arbitrator “did not identify any authority or for that matter any test of causation that he considered in respect of this issue.”[30] She submits that, because “the Arbitrator did not identify the legal test he was applying, it is difficult to discern precisely what he had in mind”.[31]
[30] Ms Mascaro’s submissions, [5].
[31] Ms Mascaro’s submissions, [8].
Ms Mascaro submits that the Arbitrator had earlier considered the competing medical opinions, but in his reasoning at [92] he “neither embraced or rejected them”. She submits that the reasoning at [92] “suggests that the test he applied was of a lay, rule of thumb”. Her submissions continue:
“Perhaps, from a commonsense perspective the last causative event may seem more significant than the earlier one. By the same token, it may merely be the straw that breaks the camel’s back with the first event in the chain of causation having been an essential and inevitable cause. However, unless supported by a sufficiently persuasive medical opinion, neither approach can be a proper basis for the [Council] to discharge its onus.”[32]
[32] Ms Mascaro’s submissions, [9]–[10].
Ms Mascaro submits that “a ‘common sense’ approach has limits”, referring to Ramasamy v Rail Corporation of New South Wales.[33] She submits that the Arbitrator did not identify or apply the principles in Hamad v Q Catering Limited.[34]
[33] [2009] NSWWCCPD 41; 8 DDCR 1 (Ramasamy).
[34] [2017] NSWWCCPD 6 (Hamad).
Ms Mascaro refers to Dr Allnutt, the psychiatrist qualified on Ms Mascaro’s behalf, who said:
“I think it is important to note that during the period of her mentoring she was experiencing depressive symptoms that some psychological disturbance was noted by her employers, which is why they sent her to a psychologist. Her impression was that she performed adequately in the mentoring process but it is probable that she was depressed at the time and as a result this impacted on her ability to perform adequately in that process.”[35]
[35] ARD, pp 6–7.
Ms Mascaro submits, on ground no 3, that this was “a very significant factor that ought to have been taken into account in considering the extent to which her psychological condition resulted from reasonable action in respect of discipline or performance appraisal”. She submits the Arbitrator “failed to consider or give weight” to the above proposition, which led to error in his conclusion on the ‘whole or predominant’ cause of the injury.[36]
[36] Ms Mascaro’s submissions, [15]–[17].
Ms Mascaro submits, on ground no 4, that the Arbitrator erred in applying the causation test under s 11A(1), in that he considered, as a causative event, the Council’s communication of 16 March 2015. He did not find this communication to be a cause of the injury for the purposes of s 4 of the 1987 Act. It could not, accordingly, be part of the predominant cause of injury for the purposes of s 11A(1).
By way of relief, Ms Mascaro submits that the Arbitrator’s decision should be revoked, there should be a finding that the defence pursuant to s 11A(1) of the 1987 Act is not made out, and there should be an award in her favour consistent with her submissions dated 28 August 2018 (sic, 2017).
The Council’s submissions
The Council submits the appeal is misconceived, as it proceeds on the mistaken premise that Ms Mascaro was injured on 12 September 2014. It submits that Ms Mascaro’s case was pleaded as one based on injury “over the entire period ‘September 2014 until 1 February 2016’ with a deemed date of 17.03.15”. The injury description, at Pt 4 of the ARD, relied on Ms Mascaro lodging a complaint in relation to threats made by a staff member, “following which [Ms Mascaro] was subjected to unreasonable and unjustified adverse action including mentoring and performance management implemented without appropriate guidelines” (emphasis in original). At no stage “was it alleged that the altercation with Ms Amacha on 12.09.14 was itself causative of injury”. The Council’s submissions state that this was referred to in its written submissions before the Arbitrator, and that at a telephone conference on 3 November 2017 Ms Mascaro’s solicitor “confirmed that a frank injury on 12.09.14 was not relied on” (emphasis in original).[37]
[37] Council’s submissions, [2.9.1]–[2.9.4].
The Council submits that the Arbitrator identified and applied the correct legal test, referring to “the principles enunciated in Heggie”. The actions identified by the Arbitrator as causative of Ms Mascaro’s psychological injury, were “the same actions found and characterised by the Arbitrator as the [Council’s] actions in respect of discipline (and possibly transfer and performance appraisal)”. This included the investigation into the complaints by Ms Mascaro and Ms Amacha, the Formal Counselling Report, Ms Mascaro’s transfer to the Tillman Park Centre and the mentoring program. [38]
[38] Council’s submissions, [2.9.5]–[2.9.9].
The Council refers to ss 294(2) and 354(1) of the 1998 Act and r 15.6 of the Rules. It submits that the Arbitrator’s reasons were consistent with his obligations.[39]
[39] Council’s submissions, [2.9.10]–[2.9.13].
The Council submits that, contrary to Ms Mascaro’s submissions, the Arbitrator had regard to medical evidence in dealing with the causation question under s 11A(1). Dr Roberts stated:
“I am of the view that her psychological condition is an injury and I believe that the actions of the employer in regard to performance appraisal, discipline and potential dismissal have been the predominant cause of her injury.”[40]
[40] Dr Roberts’ report dated 11 January 2016, Reply, p 33.
On ground no 3, the Council submits that Ms Mascaro did not allege or rely on injury on 12 September 2014, she relied on the Council’s actions after her complaint about Ms Amacha.
In respect of ground no 4, the Council refers to Sinclair at [96]. It submits that, even if the Arbitrator did refer to an event which was not found to be causative of the injury, this is not fatal to his reasoning and findings. Applying Sinclair, it is necessary to have regard to “the entirety of the conduct”, in considering whether s 11A(1) is satisfied.[41]
[41] Council’s submissions, [2.9.21]–[2.9.22].
How the case was presented before the Arbitrator
Ms Mascaro’s claim form dated 24 March 2015, under the heading “What happened”, referred to two events, “12th September 2014 – Threatened by a staff member” and “16th March 2015 – Meeting at Council”.[42] In a later claim form for permanent impairment, dated 2 November 2016, Ms Mascaro described her injury date as “1 February 2016 (deemed)”, and under “Clarification of date of injury if required” inserted:
“Accumulation of workplace stressors. The Claimant became incapacitated for work from 1 February 2016 and, accordingly, a deemed date of injury is allocated as 1 February 2016.”
[42] Reply, p 103.
It is true, as the Council submits, that the description of injury in Part 4 of the ARD does not refer to the “altercation” on 12 September 2014 as being causative of Ms Mascaro’s psychological injury. At the arbitration, Mr Saul, describing the issues at the outset, referred specifically to how the injury was pleaded. He said that Ms Mascaro, to succeed on ‘injury’, needed to prove action by the Council, following her complaint, involving “unreasonable and unjustified adverse reaction including mentoring and performance management implemented without appropriate guidelines”.[43]
[43] Transcript of arbitration proceedings of 21.6.17 (T2), T2 4.29–5.1.
During his oral submissions on 21 June 2017, Mr Saul, on a number of occasions, made submissions premised on the basis that the altercation on 12 September 2014 was not part of the allegation of ‘injury’.[44] The Arbitrator, on that day, gave Ms Mascaro leave to amend the ARD to plead 17 March 2015 as the deemed date of injury,[45] and to allege “psychological injury”, rather than relying solely on an allegation of “Major depression”.[46] The amendments did not extend to adding reliance on the altercation, on 12 September 2014, as being causative of the psychological injury.
[44] T2 25.17–18, 27.22–25, 34.16–18, 55.25–30.
[45] T2 1.41–2.2.15, 6.30–7.31.
[46] T2 60.12–17.
There appears to be a difficulty with the transcript of 21 June 2017. The transcript concludes with Mr Saul addressing the Arbitrator.[47] I have listened to the audio from 21 June 2017, and it does not continue beyond what is transcribed. On the next occasion when the matter was listed for hearing, on 28 July 2017, the Arbitrator said that on 21 June 2017 Mr Saul addressed on the section 11A defence, and “Mr Morgan began to reply to those submissions …”.[48] Any such submissions do not appear in the transcript of 21 June 2017.
[47] T2 63.8.
[48] Transcript of arbitration proceedings of 28.7.17 (T3), 2.16–23.
The hearing resumed on 28 July 2017, with Mr Stockley appearing for Ms Mascaro. The Arbitrator, referring to “what the issues for determination are”, said:
“ARBITRATOR: … The injury, as it is now pleaded in its amended form, is a psychological injury on 17 March 2015 which is a deemed date which the applicant says was due to an accumulation of stressors in her workplace beginning with, but not limited to the altercation with Ms Waded [sic, Wadad] at the learning centre on a certain date.
MR STOCKLEY: 12 September 2014.
ARBITRATOR: 12 September 2014. Mr Saul, was that your understanding of the applicant's case?
MR SAUL: Yes.”[49]
[49] T3 2.34–3.13.
The above passage was consistent with the altercation on 12 September 2014, involving Ms Mascaro and Ms Wadad Amacha, being alleged as causative of the psychological injury.
Mr Stockley’s written submissions dated 28 August 2017 referred to Dr Allnutt’s description of the altercation on 12 September 2014 as “the index injury”. They continued:
“22. The applicant’s primary submission is that the Commission would accept the conclusion of Dr Allnutt. Once the injury event is confined to the 12th of September but resulting in a formal date of injury of 17th March 2015 coinciding with the commencement of the relevant incapacity, no consideration of the s 11A defence is required.
23. In the alternative, even [if] some or all of the events unfolding between 12th September and 17th March are considered to be causative of the applicant’s injury, the 12th of September was nevertheless the most significant contributor. Once this proposition is accepted, the applicant’s condition (and injury) cannot be said to result wholly or predominantly from action taken by the employer. No consideration is required as to the nature or quality of that action, ie whether it was in respect of transfer discipline or performance appraisal.”[50]
[50] Ms Mascaro’s arbitral submissions, [22]–[23].
The above submissions are clearly framed on the basis that the allegations of ‘injury’ include the incident on 12 September 2014.
Mr Saul’s written submissions in reply, at the arbitration, referred to the above submission on Ms Mascaro’s behalf, that there should be a finding of injury based on the frank incident on 12 September 2014. He described this as “contrary to the way the case has been claimed, pleaded and presented”. He said “[a]t no stage has a frank injury on 12.09.14 been claimed or pleaded, and the respondent objects to this line of argument which is outside the scope of this claim and which it cannot meet”.[51]
[51] Council’s arbitral submissions, [1]–[3].
The matter was listed for a telephone conference before the Arbitrator on 3 November 2017. A document prepared by the Arbitrator, headed “Teleconference Outcomes and Appearances” (TC outcome record), records:
“1. Tc was listed to resolve a dispute between the parties arising from applicant’s ‘primary submission’ at para 22 that the injury event should be confined to 12 September 2014, to which the respondent took objection on that basis that no frank injury had been pleaded or alleged.
2. I indicated that applicant would need to discontinue and re-plead if she wishes to rely on frank injury.
3. Mr Leonhart [sic] indicated that he had spoken to counsel, and confirmed that the applicant did not allege frank injury on 12 September 2014.”
Oral submissions on the appeal
The Arbitrator’s reasons, dealing with causation, found that both “the altercation with Ms Amacha”, and the events that post-dated the altercation, were stressors which “were the main contributing factor to [Ms Mascaro’s] psychological injury”.[52] He found that the altercation “contributed substantially” to the psychological injury. He found that various work related “causative stressors” (actions of the employer post-dating the altercation) were the predominant cause of the psychological injury.[53] This finding is challenged in grounds nos 1, 2, 3 and 4. It is argued that the Arbitrator failed to identify or apply a correct test of causation, in finding that the Council satisfied its onus of establishing that the injury resulted wholly or predominantly from its relevant actions, for the purposes of the s 11A(1) defence. It is argued that the Arbitrator took account of an event that was not found to be causative of the psychological injury. The altercation, while a cause of the psychological injury (on the Arbitrator’s findings) was not relevant action by the Council, for the purposes of the s 11A(1) defence. Whether the altercation on 12 September 2014 was properly available, as a basis for the finding of ‘injury’, based on the pleadings and how the case was conducted, assumes significance.
[52] Decision, [87]–[89].
[53] Decision, [91]–[92].
The parties were not in possession of the TC outcome record. It potentially was inconsistent with an argument that Ms Mascaro’s psychological injury resulted from the incident on 12 September 2014. I arranged for the matter to be listed for a telephone conference on 6 June 2018. The TC outcome record was attached to the listing notice furnished to the parties. The listing notice advised that it was “anticipated that the scope of the matters at issue on the appeal will be raised, having regard to the employer’s submissions at [2.9.1]–[2.9.4]”. Mr Lleonart, solicitor, appeared for Ms Mascaro and Mr Franco, solicitor, for the Council. An issue was raised regarding whether, procedurally, it was appropriate that the Council’s position in submissions, regarding the pleading (or lack of it) of injury on 12 September 2014, should be pursued on a basis analogous to a cross-appeal.
Mr Franco advised that the Council accepted how the telephone conference on 3 November 2017 was recorded in the TC outcome record.[54] Mr Lleonart said that he had “a problem” with “the words used by the Arbitrator in his report”. He said the matter was presented to “include all of the events but the characterisation of the injury became a deemed date of injury which encompassed all of the events … we didn’t seek to exclude the event on the 12th of September”.[55] He later said that his understanding, at the telephone conference on 3 November 2017, was that he was being asked whether he “would be seeking to amend to specifically plead a frank injury”.[56] Mr Franco said that this was consistent with the Council’s understanding of how the matter was being presented,[57] but then continued:
“The employer approached its response to this claim on the basis that the alleged injury was, if I can use the label of nature and conditions, it was a nature and conditions type of injury and that the applicant was not relying on any frank injurious event and as being responsible for injury.”[58]
[54] Transcript of appeal proceedings of 6.6.18 (T4), T3.30–4.2.
[55] T4.8.26–9.2.
[56] T4 11.11–12.
[57] T4 11.26–31.
[58] T4 11.32–12.3.
After some discussion, the appeal was stood over for a further telephone conference on 12 June 2018, to give the solicitors an opportunity to discuss the matter with their respective counsel.[59]
[59] T4 17.13–21.27.
Appearances on 12 June 2018 were the same; Mr Franco’s counsel, Mr Saul, was with Mr Franco although Mr Franco conducted the telephone conference on the Council’s behalf. Mr Franco stated that the Council did “not seek to ventilate or argue a cross-appeal or a notice of contention”.[60] Mr Franco submitted that ground no 3 of the appeal was erroneous and could not be maintained, he suggested that Ms Mascaro withdraw it. Mr Franco submitted that, when the Arbitrator’s reasons were read as a whole, they did not necessarily include a finding of a frank injury on 12 September 2014. He submitted that even if the decision could be read as including a frank injury on 12 September 2014, this did not matter. The case was not pleaded or argued on the basis of such a frank injury, and the Arbitrator did not find that such an incident was the predominant cause of the psychological injury.[61]
[60] Transcript of appeal proceedings of 12.6.18 (T5), T5 1.40–2.1.
[61] T5 2.1–4.14 and 5.26–6.1.
I raised grounds nos 1 and 2 with the parties. On specific enquiry, Mr Lleonart agreed that Ms Mascaro argued that the effects of the incident on 12 September 2014 were such, that the Arbitrator’s finding that the injury resulted wholly or predominantly from the events thereafter was erroneous.[62] After further discussion, Mr Franco postulated that it may be more appropriate to argue the matter in an oral hearing, a course that Mr Lleonart neither consented to or opposed.[63] The matter was listed for an oral hearing on 18 June 2018.
[62] T5 5.28–6.1.
[63] T5 10.16–25.
An oral hearing of the appeal was held, with Mr Stockley appearing for Ms Mascaro and Mr Saul, instructed by Mr Franco, appearing for the Council. Both parties accepted that 12 September 2014 was not relied on as the date of a frank injury. Both parties accepted that the pleading of ‘injury’ was one based on the ‘nature and conditions’ of Ms Mascaro’s employment from 12 September 2014 to 17 March 2015, which was an alleged deemed date of injury. Mr Stockley put Ms Mascaro’s position regarding how the case was conducted. He said:
“… the initiating event in September 2014, in my submission, was always part and parcel of the appellant’s claim. It was clear from the medical case that she presented that it was and the commencement date of the pleaded nature and conditions was the date of that event. So it was clear that the appellant was at least embracing that as being causative of the injury that she argued for …”[64]
[64] Transcript of appeal proceedings of 18.6.18 (T6), T6 9.12–19.
Mr Saul stated that, even if the altercation on 12 September 2014 was restricted to forming part of the history of ‘nature and conditions’, he did not concede that this fell within the pleadings and how the case was conducted. He submitted:
“… the primary manner in which this case was always brought was that the incident itself never caused any psychological injury. It was only the manner in which the [Council] dealt with that complaint that was causative of psychological injury.”[65]
[65] T6 23.8–13.
Mr Saul stated, appropriately, that the Commission proceedings did not involve “strict pleadings”.[66] Mr Stockley conceded, appropriately:
“… I accept that in these proceedings there’s no such thing as a cross-appeal or a notice of contention. If the respondent wishes to argue that the determination of the [A]rbitrator should be upheld for reasons other than those made by him, it is open to the respondent to do so.”[67]
[66] T6 17.4.
[67] T6 24.32–25.3.
Consideration
Section 4 of the 1987 Act relevantly provides:
“In this Act:
injury:
(a) means personal injury arising out of or in the course of employment,
(b) includes a disease injury, which means:
(i)a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii)the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease …”
In Rail Services Australia v Dimovski, Hodgson JA said:
“If there is an event that satisfies paragraph (a) of the definition of injury, and if that is the injury relied on and proved, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) does not mean that this injury ‘consists in’ the aggravation of a disease. One strange result of the contrary view would be that a frank injury relied on and proved would, if it happened to aggravate a disease, and if incapacity did not commence immediately, be deemed under s.16(1)(a) to have happened at some time other than when it in fact happened.”[68]
And:
“In the present case, compensation is payable by Rail Services for incapacity resulting from two injuries, namely a nature and conditions injury and a frank injury on 28 May 1998. The former could possibly be considered an injury under paragraph (b)(ii) and falling within s.16(1); but the latter could not.”[69]
[68] [2004] NSWCA 267; 1 DDCR 648 (Dimovski), [68].
[69] Dimovski, [70].
In Wyong Shire Council v Paterson, Giles JA (Hodgson and Brownie AJA agreeing) said:
“Both those matters were complicated by the distinction between a frank injury and a condition arising from the nature and conditions of work. The distinction is not uncommonly found in the language used in this area of the law, but it is imprecise and it is not a distinction found in the WC Act. In general, a frank injury means a specific occasion of injury while a nature and conditions claim relies on the accumulated effect of a worker’s activities. These, however, are descriptions of mechanisms for suffering an injury.”[70]
[70] [2005] NSWCA 74; 5 DDCR 13 (Paterson), [38].
One of the grounds of appeal in Paterson involved an alleged denial of procedural fairness, on the basis that a ‘nature and conditions’ claim was prosecuted when it had not been pleaded. A Deputy President rejected this ground, and this formed part of the appeal to the Court of Appeal. As part of his reasons for rejecting this ground, Giles JA said:
“There was really no question of amendment in relation to a nature and conditions claim. The employer was well on notice of the worker’s accounts that he suffered his back pain while walking across the car park on his smoko. It had notice through the report of Dr Collins that there was a question of giving [sic] suffering of back pain the description of a nature and conditions claim, and it had full opportunity to meet the claim, as was apparent from the various medical reports.”[71]
[71] Paterson, [42]. See also Far West Area Health Service v Radford [2003] NSWWCCPD 10 (Radford), [21]–[25] and [34].
How the case was conducted
In Shore v Tumbarumba Shire Council, Roche DP said:
“The issues in dispute are ultimately determined by the way the parties present their respective cases. As observed by Isaacs and Rich JJ in Gould v Mount Oxide Mines Ltd [1916] HCA 81; 22 CLR 490 at 517 (applied in CMA Corporation Ltd v SNL Group Ltd [2012] NSWCA 138 at [14] and [15]) ‘pleadings are only a means to an end’ and if, in the running of the case, the parties choose to restrict them, enlarge them, or to disregard them, ‘it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest’.”[72]
[72] [2013] NSWWCCPD 1; 14 DDCR 157 (Shore), [36].
Both parties were in agreement, at the oral hearing of the appeal, that the altercation on 12 September 2014 was not pleaded as a ‘frank injury’ (to adopt the term used in Dimovski and Paterson). The question then became whether the pleading of ‘injury’ under the ‘disease’ provisions was such that it encompassed the altercation. The pleaded date of injury, after amendment by Ms Mascaro during the running of the arbitration hearing, was 17 March 2015, a deemed date based on the disease provisions. The description of how the injury happened, at Part 4 of the ARD, referred to events “following” Ms Mascaro’s complaint about “threats made to her by a member of staff”. The pleading at Part 4 plainly did not extend to psychological injury resulting from the altercation itself.
The way in which Mr Saul described the issue on ‘injury’, and his oral submissions before the Arbitrator more generally, proceeded on the basis that psychological injury was not alleged to have occurred as a result of the altercation on 12 September 2014 (see [51]–[52] above and the associated transcript references). However, the exchange between the Arbitrator and counsel on 28 July 2017 (reproduced at [54] above) was consistent with an acceptance, by the parties and the Arbitrator, that the ‘disease’ pleading included the altercation on 12 September 2014. Mr Stockley’s written submissions before the Arbitrator (see [56] above) proceeded on the basis that the deemed date of injury of 17 March 2015 (based on the ‘disease’ provisions) included the ‘injury event’ on 12 September 2014. He submitted that the finding on ‘injury’ should be confined to that event, or alternatively, that 12 September 2014 should be found to be the “most significant contributor” to the psychological injury. The Council did not acquiesce in this approach. Its submissions in reply, in strong terms, asserted that such an allegation was “contrary to the way the case has been claimed, pleaded and presented”, and objected to the argument being made (see [58] above).
Ms Mascaro’s submissions on appeal, dealing with ground no 2, challenge the Arbitrator’s analysis at [92] of his reasons, regarding the competing causative roles of the altercation on 12 September 2014, as opposed to the subsequent actions of the employer. The Arbitrator found the second of these to be the predominant cause of the psychological injury. The submissions raise the proposition that the “first event in the chain of causation”, the altercation, was “an essential and inevitable cause”.[73] This argument depends on the finding of an injury on 12 September 2014 (even if it is characterised as a part of the ‘disease’ injury which was alleged).
[73] Ms Mascaro’s submissions, [8]–[10].
The Council responds to Ms Mascaro’s submissions on appeal, saying the appeal “is founded on the mistaken premise that the appellant was psychologically injured on 12.09.14”. The Council submits “[a]t no stage, however, was it alleged that the altercation with Ms Amacha on 12.09.14 was itself causative of injury”. The Council refers to its written submissions before the Arbitrator, and to the telephone conference on 3 November 2017 where, it is submitted, “the appellant’s solicitor confirmed that a frank injury was not relied on” (emphasis in original).[74]
[74] Council’s submissions, [2.9.1]–[2.9.4].
Was reliance on the incident on 12 September 2014 apparent from the evidence?
Ms Mascaro’s specialist medical case consisted of Dr Allnutt’s report dated 4 October 2016.[75] It described 12 September 2014 as the “index injury”.[76] It included a history that Ms Mascaro “first noticed a change in her mental state at the time of the first mentoring program in October/November 2014”.[77] The doctor said that Ms Mascaro was “coping adequately … until 12 September 2014 and the index injury”. He continued:
“Thereafter, in my view, her mental state began deteriorating, particularly when she was placed in the mentoring program. Her emotional response to this is understandable, given her history of working in that position since 1989 with no significant problems in her performance. She experienced this as a humiliating intervention which was further compounded by being told on two occasions that she had failed the mentoring program.”[78]
And:
“… her loss of stature and employment has been a significant blow for her and has triggered the onset of a major depressive episode. In my view, the experiences in her employment, particularly since 12 September 2014, have been the substantial contributing factor to her current mental state.”[79]
[75] ARD, p 1.
[76] ARD, p 2.
[77] ARD, p 3.
[78] ARD, p 6.
[79] ARD, p 7.
The reports of Dr Kiu (the general practitioner)[80] and Ms Antonios (the treating psychologist)[81] do not point in any definitive way to a cause of the psychological injury being the altercation on 12 September 2014. Nor do the notes from Burwood Medical Practice.[82] In the Council’s medical case, Dr Roberts, in his report dated 5 May 2016,[83] diagnosed an Adjustment Disorder. He said “[t]he circumstance of being criticised for ones work would be a stressor consistent with the development of such a condition”. In his second report, dated 11 January 2016,[84] Dr Roberts maintained the same diagnosis. He said:
“… the only event operative that would have the capacity to cause a mental illness as opposed to distress … would be the assessment by Ms Mascaro’s employer, of her skills being defective and of her requiring mentoring.”
[80] ARD, p 44.
[81] ARD, p 12.
[82] ARD, p 15.
[83] Reply, p 7.
[84] Reply, p 22.
Ms Mascaro’s statement dated 2 November 2016[85] contained a history of the incident on 12 September 2014, but dealt much more extensively with the subsequent events involving her dealings with the Council.
[85] ARD, p 68.
This does not purport to be an exhaustive analysis of Ms Mascaro’s lay and medical case. However, it demonstrates that the position is different to a situation such as that in Paterson, where the evidence was said to have put the employer on notice of the case it had to meet. In a general sense, the evidence in the current matter was consistent with the case pleaded in the ARD. It was not of such a nature as to necessarily put the Council on notice that an allegation of injury in the event on 12 September 2014 (whether or not framed as part of the ‘disease’ pleading) would be pursued.
Was the incident on 12 September 2014 in issue between the parties?
The exchange between the Arbitrator and counsel, set out at [54] above, needs to be viewed in the context of the proceedings overall. The incident on 12 September 2014 was not pleaded in the ARD as a specific cause, in whole or in part, of the psychological injury. The Council made its submissions on the basis that the incident was not pressed in that way. When Ms Mascaro’s written submissions, both before the Arbitrator and on this appeal, sought to pursue such an argument, the Council took prompt objection. At the telephone conference on 3 November 2017, it was said to be confirmed that the “frank injury” was not alleged. It is not a matter where the parties, in their conduct of the case, enlarged the issues or disregarded the pleadings.
The Commission is not a jurisdiction in which the parties are bound by strict pleadings.[86] Fundamental, to whether an allegation is appropriately raised, is whether the other party has been afforded procedural fairness, and has fair notice of the case which he or she has to meet. What is required will depend on the circumstances of the individual case.[87]
[86] Tray Fit Pty Ltd v Cairney [2015] NSWWCCPD 2, [41].
[87] Jaber v Rockdale City Council [2008] NSWCA 98, [20]–[22], Radford, [34].
An allegation of injury, resulting from the altercation on 12 September 2014, was not encapsulated in the ‘disease’ pleading in the ARD. The pleading itself suggested the opposite; it referred to events after Ms Mascaro’s complaint. The transcript, viewed as a whole, does not suggest that Ms Mascaro gave any clear notice that indicated a reliance on the altercation as a cause, in whole or in part, of the psychological injury. It was not obvious, from the evidence on which Ms Mascaro relied, that she would seek to make such a case. When, in written material, Ms Mascaro sought to rely on the altercation as a specific cause of injury, this was promptly objected to, and this did not prompt any formal application to amend.
In Banque Commerciale SA v Akhil Holdings Ltd, Mason CJ and Gaudron J said:
“The function of pleadings is to state with sufficient clarity the case that must be met. In this way, pleadings serve to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision. The rule that, in general, relief is confined to that available on the pleadings secures a party’s right to this basic requirement of procedural fairness. Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities.” (excluding citations) [88]
[88] [1990] HCA 11; 169 CLR 279, [18].
The reference to pleadings in the above passage should be understood, in the context of the Commission, to extend to include allegations made in other ways, consistent with the Commission’s practices, as discussed in Radford at [23]–[25].
It follows, from the discussion above, that no allegation of injury on 12 September 2014, resulting from the altercation, was before the Arbitrator. The case run by Ms Mascaro based on the ‘disease’ provisions did not include such an allegation. This also is consistent with the discussion in Dimovski regarding the difference between ‘injury’ based on subcll (a) and (b) of the definition in s 4 of the 1987 Act, referred to at [69] above. The finding of ‘injury’, resulting from the incident on 12 September 2014, cannot stand.
Was there error in the causation finding pursuant to s 11A(1)?
Ground No 1
In respect of ground no 1, Ms Mascaro argues that no test on causation (relative to the s 11A(1) defence) was identified by the Arbitrator. The Council submits that the Arbitrator identified “the principles enunciated in Heggie”.
The Arbitrator’s finding, on whether relevant action was the whole or predominant cause of the psychological injury, was at [92] of his reasons. At [93]–[96] the Arbitrator then dealt with whether relevant actions of the Council constituted discipline or performance appraisal. In this passage of his reasons, he quoted the summation of principle in Heggie.[89]
[89] Heggie, [59].
In Ponan v George Weston Foods Ltd, Handley ADP held that the meaning of ‘predominant’ in s 11A(1) is “mainly or principally caused”.[90] This was applied by Roche DP in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd.[91] In the same case Roche DP also dealt with the s 11A(1) causation issue, on the basis that Kooragang Cement Pty Ltd v Bates,[92] as “the leading authority on causation in workers compensation claims”, applied – “causation is a question of fact to be determined on the evidence in each case”.[93]
[90] [2007] NSWWCCPD 92, [24].
[91] [2008] NSWWCCPD 96 (Temelkov).
[92] (1994) 35 NSWLR 452 (Kooragang).
[93] Temelkov, [79].
It would have been desirable for the Arbitrator to more fully describe the test on causation which he applied. However, it was not essential, providing he actually applied an appropriate test. The balance of these grounds essentially hinge on whether there was error in application of an appropriate test.
Grounds Nos 2 and 4
It was not suggested the incident on 12 September 2014 constituted action or proposed action by the Council, in respect of one of the categories protected by s 11A(1).
The Arbitrator’s findings, on causation of the psychological injury, were made at [87]–[90] of his reasons. He identified various “stressors”. These were:
(a) the altercation with Ms Amacha on 14 September 2014;
(b) the requirement to undergo mentoring;
(c) the announcement and discussion of that requirement on 13 and 14 November 2014;
(d) Ms Mascaro’s dread of the program prior to its commencement in January 2015, and
(e) Ms Mascaro’s distress after the first week of the program, which led to her seeing Dr Kiu with symptoms of a depressive illness.[94]
[94] Decision, [87]–[88].
The Arbitrator concluded he was satisfied that “all these events contributed substantially to Ms Mascaro’s distress, and to her contraction of a psychological illness”. He was satisfied that “together, these stressors were the main contributing factor to her psychological injury”.[95] The language is that of s 4(b) of the 1987 Act.
[95] Decision, [89].
The Arbitrator then turned to analyse whether the ‘whole or predominant cause’ test was satisfied, for the purposes of the s 11A(1) defence. He did so, on the basis that the altercation was one of the causes of the psychological injury. This is clear from the reasons at [91]. The Arbitrator rejected the proposition that the altercation was either the sole or the predominant cause of the psychological injury. He considered whether relevant actions of the Council were the predominant cause. He referred to four specific actions of the Council:
(a) the communication of adverse findings on 13 and 14 November 2014;
(b) the requirement that Ms Mascaro undergo mentoring;
(c) the administration of the mentoring program from 12 January 2015, and
(d) the communication on 16 March 2015 that Ms Mascaro needed to repeat the mentoring program due to a lack of satisfactory progress.[96]
[96] Decision, [92].
The Arbitrator gave three specific reasons for concluding that these actions, together, were the predominant cause of the psychological injury.[97] These were:
(a) these actions were more proximate than the altercation, to initial incapacity on 17 and 18 March 2015 (by which stage Major Depression had developed);
(b) these actions were more numerous than the single altercation on 12 September 2014, and
(c) Ms Mascaro’s condition deteriorated during the course of the mentoring program.
[97] Decision, [92].
The approach taken was essentially to compare the role of the altercation, against the other matters referred to at [95] above, in addition to noting the deterioration during the mentoring program.
Ms Mascaro, in ground no 2, argues that in carrying out this analysis, the Arbitrator “neither embraced nor rejected” the competing medical opinions. On a lay basis, the last causative event may seem more significant. Alternatively, the first event in the chain of causation “may have been an essential and inevitable cause”. Ms Mascaro submits that unless supported by “a sufficiently persuasive medical opinion, neither approach can be a proper basis for the respondent to discharge its onus”.[98]
[98] Ms Mascaro’s submissions, [10].
This argument is essentially deprived of its force, by the conclusion I have reached regarding the unavailability of a finding, that the altercation on 12 September 2014 was a cause of the psychological injury. On the properly available findings, the altercation was not a competing cause of the psychological injury which was found. The other causal contributors which were found all related to the mentoring program (see [93] and [95] above).
I accept Ms Mascaro’s submission that there are limits to common sense reasoning by a fact finder, on causation issues.[99] Frequently resolution of the s 11A(1) causation issue will require medical evidence, as it will involve matters outside common knowledge and experience. However, the evidence needed for an employer to discharge its onus on this issue will depend on the facts and circumstances of the individual case. The presence (or lack) of multiple potential causative factors, not all of which attract the protection of s 11A(1), is likely to be relevant.[100]
[99] Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41; 8 DDCR 1, [72], applied in Hamad v Q Catering Limited [2017] NSWWCCPD 6 (Hamad), [48].
[100] Hamad, [88].
Given I have found that the finding of injury on 12 September 2014 was not available, the remaining “stressors” found by the Arbitrator, causative of the injury, were those described at (ii) to (v) of [93] above. The appropriateness of these findings is not challenged on this appeal. These were plainly matters associated with the mentoring program. The Arbitrator’s reasons nominated specific matters which he relied on, in deciding that the ‘whole or predominant’ test in s 11A(1) was satisfied (see [96] above). Those described at (i) to (iii) of [95] above were encapsulated in the findings of injury described at [93] above. The matter described at (iv) of [95] above (the communication on 16 March 2015, that Ms Mascaro was required to repeat the mentoring program) was not specifically referred to in the Arbitrator’s findings of injury. Ms Mascaro argues, in ground no 4, that it was erroneous to consider this communication, in considering the ‘whole or predominant test’, as it was not found to be causative of her injury.[101]
[101] Ms Mascaro’s submissions, [18]–[20].
Ms Mascaro’s submission on ground no 4, on the nature of the causation test, is correct. Application of the test means that “the employer is not liable where, to the extent that the employment contributed to the injury, that contribution was wholly or predominantly caused by reasonable action taken with respect to ... discipline” (emphasis in original).[102] However, ground no 4 cannot succeed for other reasons.
[102] Sinclair, [58].
In his reasons at [92], when dealing with ‘whole or predominant cause’, the Arbitrator referred to the incident on 12 September 2014, and then referred to “[a]ll the other causative stressors”. One of these other listed “causative stressors” was the communication to Ms Mascaro on 16 March 2015, that she would need to repeat the mentoring course. Later in that passage, the Arbitrator described “these actions of the employer” (referring to the listed causative stressors) as the predominant cause of the psychological injury. It is plain that the Arbitrator found the stressors which he set out at [95], including the communication on 16 March 2015, to be causative of the psychological injury.
In Collector of Customs v Pozzolanic the Full Bench of the Federal Court said “[t]he reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error”.[103] The High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang described this as “an approach mandated by a long series of cases”.[104] It has been frequently applied in the Commission.[105] Additionally, it is necessary that the Arbitrator’s reasons be read as a whole.[106]
[103] [1993] FCA 456; 43 FCR 280, 287.
[104] [1996] HCA 6; 185 CLR 259, [30].
[105] See for example Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6, [45] and North Coast Area Health Service v Felstead [2011] NSWWCCPD 51, [94].
[106] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 444.
The discrepancy between the causative factors, described in the Arbitrator’s reasons at [88]–[89], as opposed to [92], is slight. On a fair reading of the Arbitrator’s reasons as a whole, it is clear that he found the matters described at both [88] and [92] of his reasons to be causative of the psychological injury. It follows that he did not commit the error alleged in ground no 4, of applying the causation test in s 11A(1) to matters which were not part of a relevant cause of injury. Ground no 4 cannot succeed.
Ground no 2 challenges the Arbitrator’s approach in comparing the relative contributions of the incident on 12 September 2014, with the other workplace stressors which he identified as causative. In the absence of the incident on 12 September 2014, the other stressors found to be causative were all workplace stressors, which were found to constitute actions of the Council in respect of ‘discipline’.[107] There were no other competing causes of the psychological injury. In these circumstances, ground no 2 cannot succeed.
[107] Decision, [93]–[96].
Ground No 3
In relation to ground no 3, Ms Mascaro submits that the Arbitrator, in considering the causation test in s 11A(1), should have had regard to whether Ms Mascaro’s ability to participate in the mentoring program was affected by her psychological state at that time. Ms Mascaro submits her difficulties coping with the mentoring program resulted, at least to an extent, from psychological injury which pre-dated the program.
The Council relies on the fact that the incident on 12 September 2014 was “not alleged or relied on”. To the extent that Ms Mascaro’s state of mind was, by the time of the mentoring program, allegedly already affected by the altercation on 12 September 2014, the Council submits “this is not the case pleaded or prosecuted”.[108] For reasons given above, I accept that the incident on 12 September 2014 was not part of the case pleaded or run by Ms Mascaro.
[108] The Council’s submissions, [2.9.16] and [2.9.18].
The case presented by Ms Mascaro before the Arbitrator, relevant to the causation issue pursuant to s 11A(1), did not rely on a submission that her ability to cope with the mentoring program was in some way compromised by the effects of psychological injury, already in place when the program was being carried out. It is not an error to fail to deal with a matter which was not raised: Brambles Industries Limited v Bell.[109]
[109] [2010] NSWCA 162; 8 DDCR 111, [30].
Grounds nos 1, 2, 3 and 4 could not succeed.
GROUND NO 5
Determining that the requirement that Ms Mascaro participate in a mentoring program constituted action in respect of ‘discipline’ for the purposes of s 11A(1) of the 1987 Act
Ms Mascaro’s submissions
Ms Mascaro’s submissions refer to various descriptions of the program in the documentation. A Formal Counselling Report dated 15 November 2014 described it as “a development plan to assist her to develop her leadership skills”.[110] Ms Mascaro described it in her statement as “an in-house mentoring program”.[111] She submits it was “unstructured and resulted in a second mentoring program”.[112] It was described in a document headed “Professional Development and Mentoring Program Meeting” dated 15 January 2014 (sic, 15 December 2014) as a program “being implemented as a follow up from [Ms Mascaro’s] initial request to be involved in further development”.[113]
[110] Reply, p 83.
[111] ARD, p 70 at [14].
[112] Referring to ARD, p 72 at [35].
[113] Reply, p 87.
Ms Karen Nicholls said that at a meeting Ms Mascaro was “handed a memorandum outlining no disciplinary action had been given to her, but that she would commence the mentoring program at Tillman Park and various other outcomes”.[114] Ms Mascaro submits that the Council “did not consider its action to be discipline”. She submits that “[o]n the other hand the definition of a mentor is an experienced and trusted adviser”. The Council’s actions do “not fit the bill for the definition of discipline”.[115]
[114] Reply, p 119.36.
[115] Ms Mascaro’s submissions, [24]–[25].
The Council’s submissions
The Council submits the Arbitrator relied on Heggie, and correctly adopted a “broad view” of ‘discipline’. The Arbitrator found that “the mentoring program was only one element of the overall disciplinary process” (referring to the decision at [95]).[116] The Arbitrator correctly determined that the investigation into Ms Mascaro’s conduct, the outcome of these investigations and the mentoring process, considered together, were “actions within the disciplinary process”. The mentoring program was not looked at and characterised in isolation, but as a continuation of the process that commenced with the investigations into Ms Mascaro’s conduct. The mentoring program had to be repeated because Ms Mascaro failed to meet its objectives; this too was found to be an element in the disciplinary process. Ms Mascaro’s reaction to the mentoring program was correctly described by the Arbitrator at [88] of his reasons. The Council submits that ground no 5 should fail.[117]
[116] Council’s submissions, [2.9.25].
[117] Council’s submissions, [2.9.26]–[2.9.30].
Consideration
In Sinclair, Spigelman CJ (Hodgson and Bryson JJA agreeing) said that the “formulation in s 11A extends to the entire process involved in, relevantly, ‘discipline’ including the course of an investigation”.[118] Similarly, in Heggie, Sackville AJA (Ward JA agreeing) said:
“A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.”[119]
[118] Sinclair, [35].
[119] Heggie, [59].
The only authority referred to by the parties, in support of their respective submissions going to whether or not the relevant actions of the Council can be correctly characterised as ‘discipline’, is Heggie (referred to by the Council).
The Arbitrator, dealing with whether the actions relied on by the Council constituted ‘discipline’, in his reasons said:
“Taking a ‘broad view’ of the meaning of ‘discipline’ adopted by the Court of Appeal, the investigation into allegations made against Ms Mascaro was an act of the employer with respect to discipline. So, too, were the outcomes of that investigation. They included the communication to her on 13 and 14 November 2014 of the adverse findings against her and of the requirement that she undergo mentoring, the administration of the mentoring program at Tillman from 12 January 2016, and the communication to her on 16 March 2015 that she was required to undergo the process again due to unsatisfactory performance.”[120]
[120] Decision, [95].
In Kushwaha v Queanbeyan City Council[121] Neilson CCJ dealt with the scope of the term ‘discipline’ in s 11A(1). His Honour commented that “[t]he question, really, is whether ‘discipline’ ought be given a broad or a narrow meaning.”[122] After referring to the definitions in the Shorter Oxford Dictionary and the Macquarie Dictionary, his Honour said:
“It can be seen, therefore, that the primary meaning of ‘discipline’ is learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of punishment, chastisement is secondary to the primary meaning although this word is often used in this sense in popular speech. It is this narrow meaning which weighed on my mind in Bottles’ case. However, the word used in an Act of Parliament must be given its full meaning, unless the context otherwise requires. Such a context does not appear to me to be called for in the interpretation of s 11A(1).”[123]
[121] [2002] NSWCC 25; 23 NSWCCR 339 (Kushwaha).
[122] Kushwaha, [151].
[123] Kushwaha, [152].
The approach in Kushwaha has been applied in the Commission. In Dennis v NSW Fire Brigades Roche DP took a reference to the “‘broader sense’ of the term ‘discipline’” to be a reference to the above passage, and said he was prepared to apply that meaning.[124] In ISS Property Services Pty Ltd v Milovanovic Candy ADP agreed with the approach in Kushwaha.[125] In George Weston Foods Ltd v Bogdanoski Roche DP expressed doubt about the correctness of Kushwaha, saying that its correctness was “open to serious doubt in light of recent authorities on statutory interpretation”.[126] However, the Deputy President applied Kushwaha in that decision, in circumstances where he found that the relevant actions did not fall within that meaning of ‘discipline’, in any event.
[124] [2007] NSWWCCPD 165, [95]. See also McCarthy v Department of Corrective Services [2010] NSWWCCPD 27, [155] to similar effect.
[125] [2009] NSWWCCPD 27, [83].
[126] [2011] NSWWCCPD 62, [173].
Those aspects of the Council’s actions, which Ms Mascaro challenges in her submissions on the basis they do not constitute ‘discipline’, are restricted to the mentoring program.[127] The investigation into Ms Mascaro’s complaint, the adverse outcomes of the investigation, and communication of the outcomes to her, were matters relied on by the Arbitrator as constituting ‘discipline’, which are not challenged on this basis.
[127] Ms Mascaro’s submissions, [21]–[25].
The Arbitrator set out multiple findings at [81] of his reasons, which he said were based on uncontradicted evidence of fact, Ms Mascaro’s statement, and histories given to various medical professionals. These factual findings are not challenged on this appeal. They establish that the Council investigated the complaints made by Ms Mascaro and Ms Amacha, about each other, relating to the incident on 12 September 2014. During the investigation, staff complained about Ms Mascaro’s management style, and these complaints were also investigated. On 23 September 2014 Ms Mascaro complained to her general practitioner about a “new stressor – having to undergo evaluation at work”. On 9 October 2014 Ms Mascaro volunteered to be transferred out of the May Murray Centre, where she had been working, so she would not have to work with Ms Amacha.
The documentary material includes correspondence to Ms Mascaro dated 30 October 2014, directing her to attend a fact-finding interview on 31 October 2014. The purpose of the interview was said to be to “discuss concerns raised by educators at May Murray Early Learning Centre”. Reference was made to:
“• Inadequate communications and interpersonal relationships with staff
· Intimidating behaviours
· Consistent professionalism and sound leadership not demonstrated”.
The correspondence went on to give multiple “examples illustrating these issues” over one and a half typed pages, which I shall not reproduce here. The correspondence informed Ms Mascaro that she could have a person of her choice accompany her, that the meeting was confidential, and that “a possible outcome from this meeting may be disciplinary action”.[128]
[128] Reply, p 72.
The Arbitrator’s findings at [81] record that on 31 October 2014, Ms Mascaro responded in writing to complaints by staff about her. The material includes the document in which Ms Mascaro defends herself against the complaints mentioned in the letter dated 31 October 2014.[129]
[129] Reply, p 75.
On 12 November 2014, Ms Mascaro was informed that her complaint about Ms Amacha (and Ms Amacha’s complaint about her) were “not substantiated”. The memorandum to Ms Mascaro states that “… there were no witnesses … Both staff allege they were threatened by the other. It is therefore not possible to substantiate Ms Mascaro’s complaint.” The memorandum’s conclusion reads:
“It is clear from both staff that there is ongoing conflict between them which needs to be resolved for the good of both staff, staff at the centre and children and families. Staff must speak to, and treat, each other with respect at all times and adhere to Council’s Code of Conduct and C2R2 [Collaborate, Creative, Respectful and Responsive].
Ms Brennan, Acting Manager will be working with you to assist manage this conflict through a personal development plan.”[130]
[130] Reply, p 81.
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.
“Conclusion
The 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’.”
“Findings
Based 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 Improvement
This report is to be considered a formal counselling in relation to allegations set out in the conclusion section of this document
This counselling document will be placed on your personal file
You 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 lieu
You 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.
A “Summary of meetings and discussions with [Ms Mascaro]” was prepared by Ms Jackson.[133] It referred to two meetings by Ms Jackson with Ms Mascaro, on 17 November 2014 (by telephone) and 20 January 2015 (in person). It recorded that on both occasions Ms Mascaro expressed “[e]xtreme anger and distress over having been removed from May Murray and being forced into undertaking a Mentoring Program”.
[133] Reply, p 94.
There is a document from Ms Brennan to Tonie Gilbert Immex dated 9 February 2015.[134] This appears to be the “psychological assessment at Council; IMMAX” referred to in Ms Mascaro’s statement.[135] Ms Brennan’s document referred to the history of the matter and the complaints about Ms Mascaro. It recorded that Ms Mascaro “commenced an exchange/mentoring program 12 January 2015”. It stated the program is “specifically designed to extend and support the role of a centre director”. It recorded:
“Ms Mascaro continues to comment that she is concerned: ‘Don’t know why I have been made to go on this mentoring program’; ‘I have done my reading and this is not what a mentoring program is’; ‘I don’t know what I’m going to get from this’.
…
She has commented at most meetings held since the formal counseling [sic] report was issued that she had no part in the decision to place her on an exchange/mentoring program. That Ms Mascaro persistently raises this same issue is a concern as it will impede her developing and may continue to make her feel that she is a victim.”
[134] Reply, p 96.
[135] ARD, p 70 at [13].
The Arbitrator’s findings, set out at [81], include:
“On 16 March 2015, after ten weeks of mentoring, Ms Mascaro attended a meeting with Ms Brennan, Ms Jackson, another Council employee and a union representative. At that meeting, Ms Brennan announced that Ms Mascaro was required to repeat the mentoring program, because her performance had not been good enough, and she had applied herself and showed progress only in the last weeks of the program”.
In summary, the Council conducted an investigation dealing with the complaints lodged by Ms Mascaro and Ms Amacha, about each other. In the course of that investigation, issues emerged going to Ms Mascaro’s leadership style, and her management of the May Murray Centre, in a more general sense. These concerns were raised in writing with Ms Mascaro. Ms Mascaro attended a fact-finding interview on 31 October 2014, having been informed that disciplinary action was a possible outcome. The memorandum dated 12 November 2014, dealing with Ms Mascaro’s complaint, referred to a need for staff to “adhere to Council’s Code of Conduct and C2R2”. It said that the Acting Manager would work with Ms Mascaro to assist in managing “this conflict through a personal development plan”. The Formal Counselling Report dated 13 November 2014 informed Ms Mascaro that the complaints against her had been substantiated. It said that her “leadership style is not always compatible with Council’s values or C2R2”. It said the “report is to be considered a formal counselling in relation to allegations set out in the conclusion section of this document”, and that “this counselling document will be placed on your personal file”. It stated that Ms Mascaro would “be provided with a comprehensive development plan”. It provided that Ms Mascaro “remain at Tillman Park for the next 3 months”, and that the development plan, and Ms Mascaro’s return to the May Murray Centre, be subject to review. It provided that “further incidents of inappropriate/unprofessional behaviour may lead to further disciplinary action”.
The record of the meeting, held on 15 December 2014, stated “Louise [Brennan] explained that the Professional Development and Mentoring Program is being implemented as a follow-up from [Ms Mascaro’s] initial request to be involved in further development”. The record noted Ms Mascaro saying that “although she has previously expressed an interest in further training that this was not the type of situation that she had in mind … not what she wanted and not something she had requested”. The document recorded Liz [Jackson] reiterating “the importance of looking at ourselves critically and making necessary adjustments in our performance consistently”. Ms Jackson’s summary of her meetings with Ms Mascaro (see [127] above) indicated that Ms Mascaro complained that she had been “forced” into the Mentoring Program. This is consistent with the documents referred to at [127]–[128] above. It is consistent with Ms Mascaro’s statement at [14].[136]
[136] ARD, p 70.
Ms Mascaro’s submissions seek to emphasise the use of the term ‘mentoring’, and say “the description of the process does not sound like a process of discipline, particularly if it was indeed in response to [Ms Mascaro’s] request for further development”. The Arbitrator’s factual findings going to the process, and the associated documentary material, do not support Ms Mascaro’s argument on ground no 5. The investigation process extended to interviews with workers at the May Murray Centre, which dealt with Ms Mascaro’s performance as director. The processes followed were consistent with formal disciplinary action. Statements were taken, resultant allegations were put to Ms Mascaro, and she was given an opportunity to respond. A formal process led to a finding that the complaints were “substantiated”. The outcome of the disciplinary process was to be attached to Ms Mascaro’s personal file. The resultant counselling process was described as “formal”. Implementation of the development plan was plainly a result of the outcome of the disciplinary process (see [125] above). The development plan, notwithstanding the use of the term ‘mentoring’, was not a voluntary process. It was an activity the Council required Ms Mascaro to participate in, due to the disciplinary process and its outcome.
In Sinclair Spigelman CJ said:
“Furthermore, the case before Sheahan J primarily focused on the whole course of Departmental conduct as constituting the relevant ‘substantial contributing factor’ for purposes of s 9A. His Honour appeared to approach the s 11A issue on the same basis. This is an appropriate course to adopt in a context concerned, and concerned only, with psychological injury arising from matters such as ‘demotion, promotion, performance, appraisal, discipline, retrenchment or dismissal’. Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.”[137]
[137] Sinclair, [96].
In Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue NT, the plurality said:
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.” (footnotes omitted)[138]
[138] [2009] HCA 41; 239 CLR 27, [47].
It is unnecessary, for current purposes, to deal with whether Kushwaha contains too broad a definition of ‘discipline’. The approach in Kushwaha essentially relied on a consideration of dictionary definitions of ‘discipline’. Some more recent authorities have cast doubt on this approach.[139] The parties’ submissions do not deal with this broader issue in any detail, but direct themselves to whether the factual situation at hand can be appropriately characterised as ‘discipline’. Applying the clear meaning of the text, in my view the Arbitrator did not err, in his conclusion at [95]–[96] of his reasons, that the Council’s relevant actions were “with respect to discipline”. This outcome does not depend on the term ‘discipline’ being given a broad meaning consistent with the decision in Kushwaha. The Arbitrator’s approach was also consistent with that in Sinclair, of considering the entirety of the conduct. Ground no 5 cannot succeed.
GROUND NO 6
Finding that the actions of the Council in respect of discipline were ‘reasonable’
[139] Rushbrook v Alan James Biggs t/as A J Biggs Used Cars [2014] NSWWCCPD 75; 16 DDCR 77 [46], NSW Trustee and Guardian on behalf of Robert Birch v Olympic Aluminium Pty Ltd [2016] NSWWCCPD 54, [51], and the cases cited therein.
Ms Mascaro’s submissions
Ms Mascaro submits that she was a senior employee, employed by the Council since 1989. Although she had earlier workplace issues, she had a good disciplinary record. The Council failed to respond to Ms Mascaro’s complaint about Ms Amacha for three weeks, and Ms Mascaro then discovered her own conduct was being investigated. The Council’s response to Ms Mascaro’s complaint about Ms Amacha was “dilatory, confused, misleading and out of all proportion, given [Ms Mascaro’s] service record and the nature of the complaint. The Council had not discharged its onus.[140]
[140] Ms Mascaro’s submissions, [28]–[30].
Ms Mascaro states that she relies on the submissions made on her behalf before the Arbitrator, at [10]–[25] of her written submissions. These refer to the three-week delay and an atmosphere of uncertainty. They refer to a ‘grievance’ she lodged on 24 October 2014, about delay and alleging that at a fact-finding meeting Mr Dungca laughed at her (for which he subsequently apologised). There was no formal outcome to Ms Mascaro’s complaint until 12 November 2014. The mentoring program was “unstructured” and resulted in a second such program. The submissions state that Ms Mascaro’s “primary submission” is that the “injury event” be confined to 12 September 2014, as either the whole cause or the most significant contributor. The transfer to the Tillman Centre was submitted to not be an action by the employer, Ms Mascaro agreed to that course. The submissions also rely on the assertion that the “mentoring program” was instituted as a “development plan” at Ms Mascaro’s initial request. It was not action taken by the employer. Mentoring cannot constitute ‘discipline’; it “suggests working under the supervision of an experienced and trusted advisor”.[141]
[141] Ms Mascaro’s arbitral submissions, [11]–[25].
The Council’s submissions
The Council submits that the Arbitrator relied on the correct authorities, Heggie and Irwin. The Arbitrator methodically identified various actions of the Council to be reasonable, in his findings of fact at [98]–[99], [101]–[104] and [106] of his reasons. Overall, he found it was reasonable to require Ms Mascaro, a senior employee in whom it had identified work deficiencies, to undergo a program of education, including repeating it when it was not completed to a certain standard. The Arbitrator’s findings of fact were available on the lay evidence, Ms Mascaro has failed to demonstrate factual error.
Consideration
In Sinclair Spigelman CJ, dealing with the issue of ‘reasonable action’, said:
“His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’. For this alternative reason the appeal should be allowed.”[142]
[142] Sinclair, [97].
In Heggie, Sackville AJA (Ward JA agreeing) said:
“71. It is not necessary in this case to explore the precise limits of an appeal under s 352(5) of the WIM Act seeking to challenge findings of fact. However, as Roche DP pointed out in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, at [20], the observations of Allsop J in Branir Pty Ltd v Owston Nominees (No 2) need to be borne in mind, particularly (I would add) where the challenge is to an evaluative judgment such as the reasonableness of actions by an employer with respect to discipline. Allsop J said, in relation to the application of the principle in Warren v Coombes, (at [28]) that:
‘in [the] process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’
72. A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518–519, per Mason and Deane JJ.”[143]
[143] Heggie, [71]–[72].
Ms Mascaro’s “primary submission”, that there be a finding that the “injury event” on 12 September 2014 was the whole or predominant cause of the psychological injury, cannot be accepted for reasons given above dealing with grounds nos 1, 2, 3 and 4. Ms Mascaro’s submissions dealing with ground no 6 otherwise seek to reagitate the broad evaluative judgment on the ‘reasonableness’ of the relevant actions, which was decided against her by the Arbitrator. Her submissions do not identify factual error. The Arbitrator referred to relevant authorities dealing with ‘reasonableness.[144] He referred to a particular blemish in the investigation, in which Ms Mascaro complained that a person involved in the investigation laughed at her. The Arbitrator made a finding that that incident was not causative of the psychological injury. He also found that if he was wrong in this, in any event “the predominant cause was the employer’s reasonable actions with respect to discipline”. That is, the overall process was ‘reasonable’, notwithstanding the blemish. This is consistent with Sinclair.
[144] Decision, [94] and [97].
For ground no 6 to succeed, it is necessary that Ms Mascaro identify “error in making the evaluative judgment as to reasonableness … factual error of the kind described by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr [(1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227)]”.[145] This she has not done: Raulston v Toll Pty Ltd.[146] The factual finding on this issue involved elements of fact, degree, opinion or judgment. It would not be appealable error if I was of the view that a different outcome was preferable. I accept the submission of the Council, that the Arbitrator’s findings of fact relevant to ‘reasonableness’ were available on the evidence. Ground no 6 cannot succeed.
CONCLUSION
[145] Heggie, [171].
[146] [2011] NSWWCCPD 25; 10 DDCR 156, [19]. See also St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64, [145]–[150].
For the reasons given above, Ms Mascaro’s appeal would not succeed on its merits.
DECISION
Ms Mascaro’s application to extend time pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.
Michael Snell
Acting President
12 July 2018
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