Plant v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Plant v State of New South Wales (NSW Police Force) [2023] NSWPIC 144
APPLICANT:	John James Plant
RESPONDENT:	State of New South Wales (NSW Police Force)
Member:	Jane Peacock
DATE OF DECISION:	6 April 2023
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; psychological Injury; injury undisputed; section 11A defence; the respondent bears the onus of proving its section 11A defence; evidence weighed in the balance; Held – satisfied, on the balance of probabilities, that the respondent has discharged its onus on the issue of whether the predominant cause of the psychological injury was the action of the employer taken in relation to discipline and/or transfer; not satisfied, on the balance of probabilities, that the respondent had discharged its onus of proof that the action taken in relation to discipline and/or transfer was reasonable; applicant not precluded from the recovery of compensation for his psychological injury by reason of the provisions of section 11A; award for the applicant.
determinations made:	1. The respondent pay the applicant’s s 60 expenses on production of accounts and/or receipts. 2. Award for the applicant for weekly compensation based upon no current capacity for work for all periods of the claim from 10 December 2021 to date and continuing in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act) as follows: (a) from 10 December 2021 to 23 February 2022 at the rate of $1,895.84 per week; (b) from 24 February 2022 to 31 March 2022 at the rate of $638 per week; (c) from 1 April 2022 to 30 September 2022 at the rate of $647.90 per week, (d) from 1 October 2022 to 31 March 2023 at the rate of $654.50 per week., and (e) from 1 April 2023 at the rate of $669.50 date and continuing in accordance with the provisions of the 1987 Act 3. Liberty to the parties to apply in respect of the quantum of weekly compensation within seven days. 4. The respondent pay the applicant’s costs as agreed or assessed. 5. On the application of the applicant, the matter is declared complex and the costs of both parties be increased by 30%.

STATEMENT OF REASONS

BACKGROUND

By Application to Resolve a Dispute (Application), Mr John Plant (the applicant), as amended, seeks weekly compensation and compensation for medical expenses as a result of psychological injury alleged deemed to have occurred on 10 August 2021 in the course of or arising out of his employment as a police officer.
The respondent is the State of New South Wales (NSW Police Force) (the respondent). The respondent was insured at the relevant time for the purposes of workers compensation by Employers Mutual Limited – TMF (the insurer).
The respondent denied liability for the claim.

ISSUES FOR DETERMINATION

There is no dispute that the applicant has a psychological injury suffered in the course of or arising out of his employment with the respondent as a police officer.
The respondent relies on s 11A of the Workers Compensation Act 1987 (the 1987 Act) and says that the applicant is precluded from the recovery of compensation because his psychological injury was wholly or predominantly caused by the reasonable action of the employer taken or proposed to be taken in respect of discipline, and/or transfer. It is noted that the dispute notice alleged all heads of s 11A as part of their defence to the claim, but after objection from the applicant, counsel for the respondent confined the dispute to the heads of transfer and/or discipline and the matter proceeded on this basis.
If the respondent is successful in its s 11A defence, there will be an award in its favour.
In the event that the applicant is successful on the liability question, there is no dispute that the applicant is totally incapacitated for employment or has no current capacity for employment for all relevant periods of the claim and that an award of weekly compensation would be made in his favour.
In the event that the applicant is successful on the liability question there is no dispute that a general order will be made in his favour for the payment of s 60 expenses.

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter proceeded to a conciliation/arbitration on 30 November 2022 and proceeded into arbitration after conciliation was unsuccessful in resolving the dispute. Counsel for the respondent made oral submissions. At the conclusion of the time listed for arbitration hearing, the parties elected to proceed by way of written submissions and the following timetable was agreed with the parties:
“A conciliation/arbitration was held on 30 November 2022 in which the Commission directed a timetable for written submissions to be filed and served by the parties as follows:
1.The respondent’s by 4pm 19 December 2022.
2.The applicant’s by 4pm 20 January 2023.
3.The respondent’s in reply by 4pm 27 January 2023.”
The respondent applied for an extension of the time for written submissions and the parties agreed on a further timetable which was directed on 21 December 2022 as follows:
“On the application of the respondent and with no objection from the applicant, the previously prescribed timetable for written submissions to be filed and served by the parties is amended to the following:
1.The respondent’s by 4pm 9 January 2023.
2.The applicant’s by 4pm 6 February 2023.
3.The respondent’s in reply by 4pm 13 February 2023.”
It is noted that the respondent did not take the opportunity to make written submissions in reply and notified the Personal Injury Commission (Commission) in writing that they would not be doing so and that the respondent relied upon the oral and written submissions already made.

EVIDENCE

Documentary evidence

The following documents were admitted into evidence before the Commission by consent and considered in making this determination:
For the applicant:
(a)    Application and attached documents, and
(b)    late documents filed with an Application to Admit Late Documents on
25 November 2022 and 6 December 2022.
For the respondent:
(c)    Reply and attached documents, and
(d)    Late documents filed with an Application to Admit Late Documents on
6 October 2022 and 22 October 2022.

Oral evidence

The applicant did not seek leave to adduce oral evidence and counsel for the respondent did not seek leave to cross-examine the applicant. Counsel for the applicant did not make any application in respect of cross-examination of the witnesses who provided statements in the respondent’s case.

FINDINGS AND REASONS

The applicant relies on a deemed date of injury of 23 August 2021 (amended from a pleaded date of injury of 6 August 2020), which counsel for the applicant submitted is the date of his first Workcover certificate and verified period of incapacity.
The applicant’s case on injury was “pleaded” in the application as follows:
“The worker has suffered a psychological injury and/or psychiatric injury as a result of being subject to bullying and harassment in the workplace. The worker was also exposed to traumatic events and incidents whilst in the service with the NSW Police Force.”
There is no dispute that the applicant suffered a psychological injury in the course of or arising out of his employment with the respondent as a police officer. The respondent raises a defence under s 11A and says that psychological injury was wholly or predominantly caused by the reasonable actions of the employer taken or proposed to be taken in relation to discipline, and/or transfer. The respondent bears the onus of proving its s 11A defence. If the respondent is successful in establishing an 11A defence, the applicant would be precluded from the recovery of compensation for his psychological injury.
The dispute concerns s 11A of the 1987 Act which provides as follows:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
The respondent relies on the heads of discipline and/or transfer.
The respondent bears the onus of proof in relation to the s 11A defence.
This case must be decided, on the balance of probabilities, on the evidence and in accordance with the law.
The parties referred to the case of Hamad v Q Catering Limited [2017] NSWCCPD 6 (Hamad) in which Deputy President Snell said as follows:
“43. The appellant relies on Shore, a case of psychological injury where a defence pursuant to s 11A(1) was raised, and ‘wholly or predominantly caused’ was an issue. In that matter the only medical opinion was from a doctor who attributed the psychological injury to ‘all of the incidents at work’ (at [26]). Roche AP was critical of the Arbitrator’s analysis in that matter, as the Arbitrator restricted the enquiry to ‘the claim as defined by the Application’, which was an allegation based on a single date, and a meeting on that day (at [41]). Section 11A(1) required that the Arbitrator consider more than just the events on the pleaded date of injury.
44.   The Acting President, in Shore at [42] and [52], said:
‘The causation issue before the Arbitrator was not causation in the sense dealt with under ss 4 or 9A, but was the causation test in s 11A. That section requires the employer to prove that the relevant psychological injury was ‘wholly or predominantly’ caused by the employer’s reasonable action with respect to, in this case, transfer. That is a different, and more difficult, test to satisfy and it required the Arbitrator to consider more than just the events on 8 July 2010.’
Second, the issue is not whether the other events were causative of the alleged incapacity or need for treatment, which requires an application of the ‘results from’ test in Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452, but whether the transfer was the whole or predominant cause of the admitted psychological injury. On this issue, the Arbitrator failed to consider the nature of the relevant psychological injury and the relevant evidence from Dr Westmore dealing with the cause of that injury. Instead of considering the terms of s 11A, he approached the question from the point of view that ‘the claim as defined by the Application relates to 8 July 2010 and the meeting on that day’.
45. The causal test in s 11A(1) is ‘different, and more difficult’, in that the test does not involve proof of ‘personal injury arising out of or in the course of employment’ (the s 4(a) test), or that employment was a ‘substantial contributing factor’ to the injury (the s 9A test), but rather whether the injury was ‘wholly or predominantly caused’ by the relevant action. It is to be proved on the balance of probabilities; normal principles governing proof of causation apply, but subject to the fact that what must be established is a different statutory test to those in ss 4 and 9A. And the onus falls on the employer, rather than the worker.
46.     In Ponnan Handley ADP at [24] held that the meaning of ‘predominant’ in s 11A(1) is ‘mainly or principally caused’. This was applied by Roche DP in Temelkov v Kemblawarra Portuguese Sports & Social Club Ltd [2008] NSWWCCPD 96 (Temelkov). In the same case Roche DP also dealt with the causation issue on the basis that Kooragang, 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’ (at [79]).
47.     The Arbitrator at [60] of his reasons identified the causation issue requiring determination (see [9] above). It involved a consideration of all of the evidence, both lay and medical. The Arbitrator’s statement of the principles to be applied was consistent with the remarks of Herron CJ in Bes at 119, quoted and applied in Murray v Shillingsworth [2006] NSWCA 367; 68 NSWLR 451; 4 DDCR 313 at [37]-[38]. The Arbitrator was entitled to rely on his ‘commonsense evaluation of the sequence of events’: Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; 2 DDCR 271 (Etherington) at [90]. He was entitled to make commonsense findings, provided these were ‘within the realm of common knowledge and experience’: Tubemakers in the High Court per Mason J at 724, applied in Etherington at [91].
48.     There are limits to such commonsense reasoning. It is restricted to matters within the realm of common knowledge and experience. Roche DP in Ramasamy v Rail Corporation of New South Wales [2009] NSWWCCPD 41; 8 DDCR 1 (Ramaswamy), dealing with a causation issue, at [72] said:
‘…the connection between a thoracic strain on 5 February 2002 and the subsequent findings on CT scan on 26 April 2002 is not within ‘the realm of common knowledge and experience’ (see Mason J (with whom Barwick CJ and Gibbs J agreed) in Tubemakers of Australia Ltd v Fernandez(1976) 50 ALJR 720 at 724 (cited by McColl JA in Hevi Lift at [91])) that would enable an arbitrator or a Presidential member to rely on his or her ‘commonsense’ to conclude that the findings on CT scan resulted from a strain that occurred nearly three months earlier. Nor does ‘commonsense’ indicate, in the absence of appropriate medical evidence, that the incident on 5 February 2002 aggravated, accelerated or exacerbated the symptoms of any disease Mr Ramasamy suffered.’
49.   In Lithgow City Council v Jackson [2011] HCA 36; 244 CLR 352; 281 ALR 223;85 ALJR 1130 (Jackson) the plurality at [66] said:
‘The respondent's proposition is that it was not probable that his injuries resulted from a stumble onto the drain from one of its sides and a heavy fall, but that it was probable that they resulted from a fall from the vertical wall. That proposition is not self-evident. To establish it would call for more than the application of ‘commonsense’ or the court's experience of ordinary life. The proposition turns on an inference from the nature of the respondent's injuries to their probable cause. That inference could only be drawn in the light of expert medical evidence.’
50.     The appellant relies on Craig, in which Keating P, applying Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419, at [79] said:
‘It is a fundamental judicial obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge [Strinic v Singh]). Her Honour added (at [64]) that even if a judge is experienced in adjudicating in medical matters ‘that experience does not replace the requirement to base findings on the evidence’. For a judge to base a decision in such circumstances on his or her personal knowledge involves an error of law. Her Honour added ‘underlying that error is a fundamental breach of procedural fairness’. A party is not afforded procedural fairness where a trial judge makes a finding of fact based on the judge’s own purported knowledge, or understanding of matters that do not form part of the evidence.’
51.     Craig also dealt with the Commission’s status as a specialist tribunal, and the relevance of this to fact finding on an issue of causation. The Arbitrator, in the current matter, did not rely on the Commission’s status as a specialist tribunal. His reasons do not suggest that he approached his fact finding on that basis. In Etherington McColl JA (Mason P and Beazley JA agreeing) at [93] said that a primary judge (or an arbitrator or Presidential member) intending to rely on his or her specialised knowledge, should disclose this to the parties, to give them an opportunity to respond to it. As regards the effect of the Commission’s status as a specialist tribunal, on its fact finding, see also Wallaby Grip (BAE) Pty Ltd (in liq) v Macleay Area Health Service (1998) 17 NSWCCR 355, MMI Workers Compensation (NSW) v Kennedy (1993) 9 NSWCCR 482, Perkins v Ceva Materials Handling Pty Ltd (previously TNT Materials Handling Pty Ltd) [2011] NSWWCCPD 32 and Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37.”
Deputy President Snell dealt with the causation issue at stake in that case making it clear that the onus is on the respondent in respect of the s 11 A defence:
“The extent to which aspects of the appellant’s history contributed to causing the psychological injury was not, in the circumstances, something which could be decided in the absence of medical evidence. There may be cases in which causation of a psychological injury can be established without specific medical evidence, for example where there is a single instance of major psychological trauma, with no other competing factors. The need for medical evidence, dealing with the causation issue in s 11A(1) of the 1987 Act, will depend on the facts and circumstances of the individual case. In the current case, as in most, there are a number of potentially causative factors raised in the appellant’s statement and the medical histories. Proof of whether those factors, which potentially provide a defence under s 11A(1), were the whole or predominant cause of the psychological injury, required medical evidence on that topic. The extent of any causal contribution, from matters not constituting actions or proposed actions by the respondent with respect to discipline, could not be resolved on the basis of the Arbitrator’s common knowledge and experience.”
In that case, Deputy President Snell found that:
“The respondent could not, on the available evidence, in the absence of any medical evidence dealing appropriately with the topic, discharge its onus of proving that the appellant’s psychological injury resulted wholly or predominantly from its ‘reasonable action taken or proposed to be taken’ with respect to discipline.”
The respondent has conceded that the applicant suffered a psychological injury although the respondent disputes the allegation of injury in the sense that they say the psychological injury was wholly or predominantly caused by the action of the respondent taken or proposed to be taken in relation to discipline and/or transfer of the applicant. The action taken by the respondent was in response to an allegation of sexual harassment made against the applicant by a female officer.
The respondent bears the onus of proof on the issue of causation in the context of a
s 11A defence.
The independent medical expert (IME) qualified on behalf of the respondent, Dr Potter, psychiatrist, provided a report dated 24 November 2021 in which he diagnosed the applicant as suffering from an adjustment disorder, the causation of which he opined to be as follows:
“the worker’s adjustment disorder was caused by his workplace experience.”
The history of the “workplace experience” that Dr Potter took, and upon which his opinion on causation is based, was as follows:
“When asked about the circumstances which led to this assessment he began stating ‘okay. So what happened? Go on for some time, August last year. In a nutshell work for the police for 13 years.
He confirmed that he is a police officer.
He continued and with the expression, ‘dealt with a lot of thing’ he informed that a complaint had been made against him about sexual harassment, to which he added ‘false’.
Then followed an exhaustive detailed history of having ‘caught her out’ a fellow police officer who :disclosed info for a report, intended of the repor’.
He informed another police officer without realising that they were best friends.
Within the atmosphere of ‘a female commander at the time’, he went onto describe a corrupt process (my word not his) in which there was ganging up against him (again my words not his) in which he was ‘bullied’ and a process which escalated against him and involved professional standards.
Initially he ‘did have faith in the police’ to investigate appropriately and do the right thing.
However as he continued to be failed by the police service and protocols he developed ‘no faith in the police’.
As if by summary he stated ‘I have exhausted (his attempts with the appropriateness if the police process) and they exhausted me’.
In August 2021 with the expression ‘break me’ he had an experience in the morning of ‘like a heart attack’. He was ‘in shock’.
With the thought of having a heart attack he described having had ‘a tightness in the chest’ and ‘recently with EML’, he described ‘LEC’, initial for which he explained ‘Law Enforcement Conduct Commission, Professional Standards’.
He initially sought help from the EAP (Employees Assistance Program) ‘late last year’ and consulted with his local doctor ‘with the standards against me. Just blatant lies.’
With physical symptoms consistent with anxiety he has had treatment and having finished work on 23 August 2021, he has remained on leave.”

Dr Potter diagnosed an adjustment disorder and opined, “From a clinical perspective, the aetiology of his adjustment disorder is his described workplace experience”.
Dr Potter goes onto state:
“There was no reason at this assessment not to accept his described workplace experience as the whole and predominant cause of his adjustment disorder.”
The applicant relies on the opinion of his treating psychologist Dr Darren Wilson who in a report dated 31 March 2022 opined as follows:
“Mr Plant’s workplace injury was developed due to evidenced typical investigative procedures not being actioned according to due processes to thoroughly investigate allegations from another co-worker.”
Dr Moajjema, the applicant’s treating general practitioner (GP), in a report to EML, by way of completing a questionnaire from EML dated 30 August 2021, in answering a question about employment being a substantial contributing factor, stated:
“he had been accused from 2020 with much evidence and no proper explanation from work which caused severe mental anxiety and trauma.”
Counsel for the respondent submitted that I would find that the applicant’s psychological injury was wholly or predominantly caused by the reasonable action taken by the respondent in relation to the discipline of and/or transfer of the applicant.
The action taken or proposed to be taken by the respondent in relation to the discipline of or transfer of the applicant was in response to allegations of sexual harassment against him by a female police officer.
Discipline includes the investigative process, as well as the steps taken by the employer as interim measures whilst the investigation is undertaken.
Although exposure to trauma as a police officer is “pleaded” as part of the description of injury in the application, there is no medical evidence before me which supports that the applicant suffered a psychological injury as a result of exposure to trauma.
Although the application also “pleads” that the applicant was a victim of “bullying and harassment” as part of the description of injury in the application, weighing all of the medical evidence in the balance with the other evidence I am not able to be satisfied on the balance of probabilities that the applicant suffered a psychological injury as a result of being bullied and/or harassed.
When I weigh all of the medical evidence in the balance with the other evidence before me, I am satisfied on the balance of probabilities, having regard to the medical opinions of Dr Potter (IME Psychiatrist), Mr Wilson (treating psychologist) and Dr Moajjema (treating GP), that the applicant’s psychological injury was predominantly the result of the action taken or proposed to be taken by the employer in relation to transfer and/or discipline.
The question for determination then becomes whether the respondent’s actions taken in relation to the discipline and/or transfer of the applicant were reasonable.
The actions taken or proposed to be taken by the respondent in relation to the discipline of or transfer of the applicant were in response to allegations of sexual harassment made against him by a female police officer. The question of whether the actions taken by the respondent were reasonable is a matter of fact to be determined by me on the evidence.
The question of whether the employer’s actions were reasonable is a factual determination. I have to weigh all of the evidence in the balance and determine, on the balance of the probabilities, whether the actions of the employer were reasonable in the circumstances of this case.
Counsel for the applicant referred to the following authorities on the issue of reasonableness in the context of s 11A:
“A worker is entitled to procedural fairness in the disciplinary process. (See Rail Corporation NSW v Arvanopules [2019] NSWWCCPD 65)
The issue of reasonable action with respect to discipline was considered in NSW Local Health Network v Heggie [2013] NSWCA 255, where, Sackville AJA, said at [59]-[61]:
‘The following propositions are consistent with the statutory language and the authorities that have construed s.11A(1) of the WC Act:
(a)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.
(b)Nonetheless, for s.11(A)(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(c)An employer bears the burden of proving that the action with respect to discipline was reasonable.
(d)The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that cause psychological injury was reasonable.
Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(e)Whether psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(f)The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(g)If an Arbitrator does not apply the wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.
Section 11A(1) of the WC Act gives rise to a further question of construction which was not addressed in the parties’ written submissions, but was raised in argument before this court. The question is whether the reasonableness of disciplinary action is to be assessed exclusively by reference to circumstances that were known or should have been known to the employer at the time the action was taken. Mr Morris SC, who appeared with Mr Perry for the Health Network, contended that facts that come to light after the employer has initiated the relevant disciplinary action can and perhaps must be taken into account on the issue of reasonableness. Mr Hale SC, who appeared with Mr Hanrahan for Mr Heggie, submitted that the reasonableness is ordinarily to be determined by reference to circumstances known at the time had reasonable inquiries been undertaken. He appeared to contemplate, however, that this would not necessarily be a universal rule, although he did not specify when it might be departed from.
In my opinion, the better view is that the reasonableness of an employer’s action for the purposes of s.11A(1) of the WC Act is to be determined by the facts that were known to the employer at the time or that could have been ascertained by reasonable diligent enquiries. The statutory language directs attention to whether the psychological injury was caused by reasonable disciplinary action taken or proposed to be taken by the employer. Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable enquiries or exercise reasonable care. The language does not readily lend itself to interpretation which would allow disciplinary action (or action of any other kind identified in s.11A(1)) to be characterised as not reasonable
because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”
Foster AJA cited the following passages with approval in Commissioner of Police v Minahan [2003] NSWCA 239 at [27]-[28]:
Geraghty CCJ said in Irwin v Director-General of School Education (unreported 18 June 1998) that:
‘The question of reasonableness is one of fact, weighing all relevant factors. The test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.’
Truss J said in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998) that:
‘In my view when considering the concept of reasonable action the court is required to have regard not only to the end result to the manner in which it was effected.’
Although it is conceded that the Respondent was not under an obligation to fully investigate and consider the allegations against the Applicant before initiating a formal investigation, in considering the reasonableness of the action, regard should be had to the preliminary investigations that were undertaken.
As was noted in Minahan by Santow JA at [4]:
‘The modest preliminary investigative step of interviewing the complainant, or at the least making more effective effort to do so, fell far short of a full investigation, (which latter course the employer might reasonably conclude was unwarranted in the circumstances). Despite the argument before this court to the contrary, there could in reality be no suggestion of any conflict of interest for this employer the Police Commissioner in conducting that more limited investigation as against
exercising due concern for efficient use of resources pursuant to Pt 8A of the Police Services Act 1990 (NSW). It was not reasonable for the Police employer to fail to heed the understandable concerns of a valued officer known to be deeply distressed by these allegations, when it knew them to be unfounded, and instead referring them for intelligence purposes. The respondent naturally perceived that step as leaving a blot on his hitherto unblemished record, adding to his distress and continued anxiety. That is not a criticism of the referral per se. It is simply recognition that vis a vis the employee the steps taken were, in the absence of any investigation, clearly unreasonable. Moreover had the preliminary investigation taken place and confirmed the baselessness of the allegations then no such referral would have been necessary or, if necessary, would have included the favourable result of the preliminary investigation as well.
In considering whether a Respondent had discharged its onus of establishing a s.11A defence, Roche DP in State of New South Wales v Stokes [2014] NSWCCPD 78; said at [89]:
‘I agree with Mr Daley’s submission that the email seems to suggest that the error that occurred in the testing was readily identified, once the review was done, and, had the appellant done that simple review prior to confronting Ms Stokes, nothing would have been said to her and she would not have been put off work. In other words, if the appellant had exercise reasonable care and diligence, by having the results checked and confirmed before confronting mistakes, no problem would have arisen.’
A failure by an employer to follow its own policies and procedures can render the action not reasonable. (See Balranald Shire Council v Walsh [2013] NSWWCCPD 47).”
The real issue in this case is whether the action taken or proposed to be taken by the respondent was reasonable. In this case, the issue of “reasonableness” requires careful consideration of the evidence of the alleged conduct of the applicant and the action taken by the employer in response.
The actions taken or proposed to be taken by the respondent in respect of discipline arose because the applicant was the subject of a complaint from a female police officer which was deemed by the respondent to constitute sexual harassment.
Upon receipt of the complaint, the respondent commenced an investigation. The commencement of an investigation in these circumstances is not unreasonable in it itself because employers have obligations to the complainant as well as their other employees. They also have an obligation to their employee who is the alleged protagonist. It can well be accepted that it is a delicate balance that the employer must strike when faced with complaints about behaviour which may constitute sexual harassment. The question of whether the action taken by an employer is reasonable is a matter of fact that must be determined on the evidence before me. It is the respondent who bears the onus of proof.
Counsel for the respondent submitted that I would find the action taken by the respondent was reasonable. In addressing whether the action taken by the respondent was reasonable, counsel for the respondent submitted:
“that at all times the applicant:
(a)    Was given clear notice of the allegations made against him;
(b)    Had the opportunity to respond;
(c)    Had the opportunity of an interview;
(d)    Had the opportunity to put whatever material he wanted to the decision maker
(e)    Was given interim management plans that were objectively sensible and at any time the applicant was entitled, in accordance with the very policy under which the plans were imposed, to seek variation;
(f)    Had the right to seek the oversight of the LECC and in fact did so without success.
(g)    Had a final determination that was carefully considered based on the evidence and was not in any way unduly harsh or unfair;
(h)    Was offered support programs which he took up with the employee assistance program
(i)    Engaged his lawyers who made lengthy submissions about the complaint;
(j)    Was not punished for his breach of the interim management plan although it was open to the respondent to do so.”
The statement evidence before me from the applicant includes a lengthy statement of some 174 pages dated 21 September 2021 comprising 59 pages of statement evidence and the balance in annexures.
The respondent relies on the statement evidence of three witnesses namely, Sergeant Leigh Smith dated 29 September 2021, Superintendent Danielle Emerton dated
18 October 2021, and Superintendent Peter Glynn dated 18 October 2021.
The respondent has not put into evidence a statement from the complainant and has not put into evidence the written complaint which was deemed by the respondent to constitute sexual harassment and to warrant the action taken by the employer in commencing an investigation process, and pending the results of the investigation immediately transferring the applicant to another police station and placing him under an interim risk management plan.
At the time of the complaint, the applicant held the rank of Senior Constable and was stationed at Eastwood Police Station, which forms part of the Ryde Police Area Command (PAC).
The applicant was the subject of an allegation from a female officer (a general administration officer) who also worked at Eastwood Police station, Ms Laird, (the complainant) about his conduct towards her (the complaint). The exact particulars of the complaint have not been put in evidence. I am not assisted by a statement from the complainant, a statement from any of the alleged witnesses to the alleged behaviour and nor has the original written complaint been put before me.
The applicant gave evidence in his statement that he had applied for a promotion. He had a period of leave and when he returned from leave, he was verbally told by another police officer (and one unrelated to the promotion process and who should not therefore have known any such confidential details) that he was unsuccessful in his bid for a promotion. He was told this by his colleague before he was formally notified that he was unsuccessful in his bid for a promotion in an email from the complainant. He feared that his confidentiality had been breached by the complainant and he says he told another officer that the complainant would be in trouble, and she should “pull her head in” without realising that she was “best friends” with the complainant.
The applicant considers that it was this conversation that caused the complainant to almost immediately lodge the subject complaint against him. He considers that the respondent has never properly investigated this aspect of the matter. The respondent has put no evidence before me which would support that this aspect of the matter ever formed part of the investigation.
Regardless of the motivation of the complainant for making the complaint against the applicant, and which the employer could not have known at the time of the receipt of the complaint, it was reasonable for the respondent to commence an investigation of the complaint when allegations in the nature of sexual harassment are made.
An investigation process was commenced by the respondent, the commencement of which is not considered to be unreasonable. The manner of the conduct of an investigation, including any delay in providing the applicant with the particulars of the complaint and giving him proper opportunity to respond, depending on the evidence, may be considered unreasonable. At the same time of the commencement of the investigation, it was considered by the respondent that the allegations were of sufficient seriousness to warrant an interim risk management plan being put in place. Depending on the evidence, the interim risk management plan and its terms and manner of implementation may be considered unreasonable. The determination of whether the action taken by the employer was reasonable requires careful consideration of the evidence before me.
On 3 August 2020, the complaint made in writing was received by Ms Danielle Emerton the acting superintendent of the RYDE PAC and the applicant’s commanding officer.
Superintendent Emerton gave evidence in a statement dated 18 October 2021.
Ms Emerton gave evidence that she was concerned that the receipt of the complaint represented a “pattern of behaviour” by the applicant as she had dealt with two prior complaints about the applicant. One of these complaints was for failure to properly investigate a breach of a DVO and one was for making unwelcome and inappropriate contact through social media with a young female relative (there is no evidence of her age before me) who had returned overseas after staying with the applicant and his wife. The complaints were resolved by the respondent by counselling the applicant. There is no other evidence before me about these prior complaints concerning the conduct of the applicant, who previously had an unblemished record. Notwithstanding the concern that Superintendent Emerton considered that the receipt of the third complaint represented a “pattern of behaviour” and that such concern influenced the disciplinary action undertaken against the applicant, including the transfer to Gladesville and the stringent terms of the interim risk management plan, I have no other evidence about the prior complaints that would allow me to taken them into account in determining whether the action commenced against the applicant was reasonable. Counsel for the applicant points out that the prior complaints which were resolved by the respondent do not form part of the dispute notices about the subject injury.
Upon receipt of the subject complaint, Superintendent Emerton emailed the Workplace relation and Equity Unit (WREU) who convened a Panel on 6 August 2020.
Superintendent Emerton gave evidence that the WREU deemed that the applicant’s “reported behaviour met the threshold for a breach of the New South Wales Police Force Respectful Workplace Behaviours Guidelines. The recommended classification for IAPRo was Sexual Harassment”.
The respondent has not put into evidence any documentation or email communication from WREU in support of the decision to classify the alleged behaviour as sexual harassment. The respondent has not put into evidence the Guidelines that the applicant was considered to have breached, namely the New South Wales Police Force Respectful Workplace Behaviours Guidelines.

Superintendent Emerton gave evidence that she:
“contacted Inspector Bradley Element, the North West Region Professional Standards Manager. I convened a Complaint Management Team Meeting and I was guided by the WREU in relation to the investigation of the complaint and suitable Interim Risk Management Strategies.”
The respondent has not put into evidence any of the Guidelines or policies and procedure documentation that were used to guide the handling of the complaint.
Superintendent Emerton gave evidence that she immediately arranged for the complaint to be triaged and an investigation plan was devised between A/Inspector Walters (RYDE PAC Professional Standards Duty Officer) and Detective Sergeant Elise Teelling from the WREU. The investigation was allocated to Acting Inspector Blacker and Detective Senior Constable Robyn Bartlett was assigned to interview a number of witnesses.
The respondent has not put into evidence any statements from any of the officers referred to above. The respondent has not put into evidence any record of interview of the complainant or statement from her or any record of interview or statements from the persons identified by the respondent as witnesses.
Superintendent Emerton goes onto give evidence that the complaint was considered of sufficient seriousness to warrant the applicant being put on an interim risk management plan. She gave evidence as follows:
“Due to the serious nature of the allegation and acting on advice from Inspector Element and the WERU, I thought it necessary to implement an Interim Risk Management Plan.”
The respondent has not put into evidence the complaint. I have to determine as a matter of fact whether the employers action taken in response to the complaint was reasonable. This is an objective test. Ms Emerton says that she considered the allegation to be of a serious nature but the respondent has not put into evidence the complaint. The respondent bears the onus of proof.
The respondent has not put into evidence any statement from Inspector Element or any evidence of the Guidelines that were being followed from WREU in the handling of the complaint.
Superintendent Emerton goes onto give evidence:
“In accordance with the Interim Risk Management guidelines for Police and with the guidance of the Professional Standards Command, a Risk management Plan was put in place to mitigate identified risks to the claimant, internal police complainants and other witnesses.”
The respondent has not put into evidence the “Interim Risk Management Guidelines for Police”.
The respondent has not put into evidence any statement from any officer from the Professional Standards Command, or any document emanating from the Professional Standards Command, that Superintendent Emerton says guided her in the handling of the complaint.
The respondent has not put into evidence any documentation that supports that there were “identified risks to the claimant, internal police complainants and other witnesses” and the nature of any such risks.
Counsel for the applicant submitted:
“The Respondent has not put into evidence any documents relating to the consideration of the complaint by the WREU, the CMT, nor the deliberations and considerations associated with the Interim Risk Management Strategies and the implementation of the Interim Risk Management Plan.
It is submitted that the absence of these documents and information, is relevant to the Commission’s ability to consider the reasonableness of the disciplinary and transfer action for the purpose of s.11A.
In the absence of such material, it is submitted that the Respondent cannot satisfy the Commission that the investigation which led to the disciplinary and/or transfer action was reasonable, or that it was carried out in a reasonable fashion.”
Superintendent Emerton gave evidence as to the conditions she authorised as appropriate for the interim risk management plan as follows:
“●     For the duration of the interim risk management plan, perform duties in the intelligence office at Gladesville Police station.
·        Perform duties as tasked by the supervisor, duty officer or commander, Ryde Police Area Command.
·        Seek authorisation from the supervisor, duty officer or commander, Ryde police area command prior o undertaking any duties other than those you have been tasked
·        Not to work directly with female staff/officers
·        Not to change his roster without express permission of the commander
·        Not to have one on one conversations with female staff (sworn and unsworn) who are lower than Sargent rank, unless you are in the company of and being supervised by another person.”
The interim risk management plan is in evidence. It does not provide particulars of the complaint.
Superintendent Emerton gave evidence that the applicant was informed about the complaint on 11 August 2020 as follows:
“at 11.20am on 11 August 2020, the claimant was informed about the complaint by Acting Inspector James Walters, in the presence of Sergeant Robert Dickinson. During this meeting the claimant was also provided a Support Package.”
The applicant’s evidence is that he was told there was a complaint but he was not given particulars of the complaint. He says that on 11 August 2020 he was sent to work at Gladesville but upon his arrival was directed to return to Eastwood police station. He was taken aside by and informed by Sergeant Dickinson and Sergeant Walters that a complaint had been made against him. The applicant submitted:
“The Applicant says he not given any particulars regarding the nature of the complaint. There is no evidence from Superintendent Emerton that the applicant was provided with particulars of the complaint. There is no evidence from Sergeant Dickinson and Sergeant Walters about what particulars were provided to the applicant about the complaint. The respondent has not put into evidence any evidence that supports that any particulars were provided to the applicant at that time.”
Whilst he was told the complaint was one of sexual harassment, the applicant says he was left in the dark and to speculate as to what the precise nature of the allegations might be and that this caused him distress and anxiety.
The applicant submitted:
“The Applicant was placed on an Interim Risk Management Plan on the
13 August 2020.
While the plan set out various strategies, it did not provide any particulars of the allegations, nor is there any evidence that the Applicant was given an opportunity to respond to the allegations or the proposed plan, prior to its implementation. (ARD 70-73)
To that point, the Applicant had still not been given details of the allegations against him. (ARD 17, Para 75)
On the 13 August 2020, the Applicant was informed that the complaint was one of sexual harassment but not provided with any further details. (ARD 17, Para 75)”
The applicant says that he was not provided with any more detail about the complaint until some two months later on when he was given a direction to attend an interview on 13 October 2020 with Detective Sergeant Hampstead. The applicant submits that the delay in providing him with particulars of the complaint was unreasonable.
There is no evidence before me from the respondent which explains the delay in providing the applicant with particulars of the complaint. Upon receipt of the complaint, the respondent almost immediately transferred the applicant from Eastwood to Gladesville and subjected the applicant to the stringent conditions of an interim risk management plan as set out above. In these circumstances, the delay in providing the applicant with particulars of the behaviours he is alleged to have engaged in towards the complainant is not explained by the respondent and is one of the matters I have to weigh in the balance in determining whether the action taken or proposed to be taken by the respondent was reasonable.
Counsel for the applicant submitted as follows:
“The Applicant was told that his initial transfer from Eastwood to Gladesville was a result of the complaint against him (ARD 8, Para 31).
The details of the complaint and evidence surrounding it is dealt with in following submissions however, at that stage, the Applicant had still not been provided with details of the nature or particulars of the complaint.
It was not until a conversation with Inspector Boyd on the 13 August 2020, that the Applicant was told that the complaint was of sexual harassment, but not provided with any further details. (ARD 9, Para 35)
The Applicant described this action as making him ‘feel totally humiliated and dejected. I had never experienced anything like this in the police force before and I could not understand why they would impose such measures. Even if there was a complaint, every other complaint is handled by placing the subject officer on restricted duties on the front counter at Eastwood Police Station so that they can be directly supervised by their team Sergeant. This wasn’t the case for me.’ (ARD 8, Para 32)
On the 13 August 2020, the Applicant had a conversation with Inspector Boyd, who told him that:
‘…the complaint was sexual harassment and acting Commander Emerton had placed strict conditions on me including, I was not to talk or work one-on-one with female staff, that I couldn’t work alone and had to be monitored constantly.’ (ARD 9, Para 35)
It is submitted that in the event that the Commission finds that it cannot be satisfied that the instigation, continuation or manner in which the investigation and disciplinary process was conducted was reasonable, then it follows that it similarly cannot be satisfied that the Interim Risk Management Plan which required the Applicant’s transfer to Gladesville, or the requirement that the Applicant remain at Gladesville was reasonable.
Further, in the circumstances of the nature of the allegations and restrictions placed on the Applicant under the Interim Risk Management Plan, placement at Gladesville was unreasonable given that:
a.The initial transfer occurred on the 11 August 2020, at which time the Applicant was not provided with details of the complaint against him. (See paras 33 and 34 hereof)
b.The transfer did not accord with usual practice. (ARD 8, Para 32)
c.The Applicant was the subject of rumours and innuendo while at Gladesville.
d.Gladesville had the highest ratio of female staff in the PAC, which made compliance with the terms of the Interim Risk Management Plan difficult. (ARD 9, Para 36).
e.Further, while there the Applicant was required to continue to work in contact with the complainant, Ms Laird.”
On 13 August 2020 the interim risk management plan was signed by the applicant and Superintendent Emerton.
In my view it is stringent in its terms, particularly as it required the applicant to work at a police station that had a staff ratio of 65% female but he was precluded from speaking to a female in the absence of another person. The applicant has given evidence about the difficulties this caused him particularly trying to eat in the meal room. It must be remembered that these restrictions were imposed on the applicant as interim measures in response to allegations, the actual particulars of which were not put to the applicant and which were untested and unproven at this point in time. I am asked to determine that the actions of the employer were reasonable in the absence of evidence, such as the complaint or a statement from the complainant, or any evidence about the Guidelines or policies and procedures that were followed, which would support such drastic measures being taken against the applicant in the first instance and measures which the applicant says caused him distress and anxiety, particularly as he was not given particulars of the complaint.
The applicant returned to Gladesville police station where he was under the direct supervision of Sergeant Pennock. There is no statement of evidence from Sergeant Pennock however there are monthly supervision reports in evidence from Sergeant Pennock.
On 24 August 2020, Superintendent Emerton spoke to the applicant in response to an allegation that he had breached the interim risk management plan by speaking to female administration staff without the required level of supervision.
On 13 October 2020, the applicant was directed to attend an interview with detective Sergeant Hamstead. The Direction identified the allegations as:
“Issue – Workplace Relations and Equity Matters – Sexual Harassment
- behaviour which creates a sexually permeate/hostile working environment.
The Internal Complainant reports repeated uninitiated sexual related conversation and behaviour by Senior Constable PLANT in the workplace which has created a hostile environment. Internal Complainant states feeling ‘Uncomfortable’ and referred to Senior Constable PLANT as ‘Odd’, making such comments as ‘I bet you’re the sort of person who would be bashed by her boyfriend’ and asking if the Internal Complainant is on dating applications. The Internal Complainant states, ‘Whenever I work with him, he says things that make me feel uncomfortable… And whenever I see him, he asks me about my dating life.’” (ARD 78)
Counsel for the applicant made submissions about the applicant’s refutation of the allegations as follows:
“In as far as the allegations related to comments regarding dating apps, the Applicant deals with those conversations in his statement dated 21 September 2021, at annexures 6 and 23.
To give the conversations context, he said that:
‘As Phoebe and I have shared personal information in conversation in the past where she is indicated to me that she is single, lives alone in Gladesville, does not go out much and is originally from a small inland town I simply ask you how she is going, has she been on any dates or meeting people and if she is using any applications like tinder to meet people….
My intention was to see that she’s alright and meeting people and not just staying in a unit alone, I was actually being nice to her and seeing how she was. At no time has Phoebe ever stated she felt
uncomfortable or that we weren’t friends etc. During this time this type of conversation would not have been unusual or unacceptable based on their level of friendship. Phoebe was a friend of mine on Facebook, becoming friends on the 17 October 2019’ (ARD 81-82)
‘…when we first met she openly told me things about her family where she was from, her name all the normal conversation questions and answers when you first work or meet someone and we later became friends on Facebook which was deleted when she made this complaint. In early 2020 I was having marital problems (again people knew about including possibly Phoebe again because she had friendships at work) and I would have asked to general questions about dating applications as I was looking at them myself, that’s all, I might have asked if they work or something similar as I’ve said we don’t work together so in early August 2020 when I passed her again I said ‘Hi and how was your dates going’ as a general hello and question in passing that’s all.’ (ARD 136)
In as far as the allegation that he told Phoebe Laird that ‘I bet you’re the sort of person who would be bashed by her boyfriend’, the Applicant has denied making this comment, as noted in the correspondence from his former solicitors dated 11 January 2021. (ARD 64).
Later, the Applicant said that if it did occur, which is not admitted, it would have occurred in the context of attendance at a domestic violence incident.”
Counsel for the applicant went onto submit:
“As the Respondent has not sought to admit into evidence, the original complaint or a statement from Phoebe Laird, the Commission cannot know the strength of the allegation made against the applicant in this regard.”
On 21 October 2020, the applicant was interviewed by Detective Sergeant Hampstead and Detective Sargent Parmenter on the 21 October 2020. Detective Sergeant Dixon was also present.
The respondent has not put into evidence the record of interview from 21 October 2020 or any statement of evidence from Detective Sergeant Hampstead or Detective Sergeant Parmenter or Detective Sergeant Dixon about the interview on 21 October 2020.
The only account of the interview in evidence is the applicant’s statement about what occurred.
Counsel for the applicant submitted in this regard as follows:
“Considering the limited details which were provided to him only days before the interview, the Applicant prepared a document responding to what he perceived to be the allegations against him. He took that document with him to the interview, along with other supporting documents. (ARD 80)
The Applicant attempted to provide that document to Detective Sergeant Hampstead and Detective Sergeant Parmenter however, Detective Sergeant Hempstead told him that he couldn’t mention what happened or provide his document as he would be in more trouble for not reporting Phoebe’s misconduct. (ARD 26, Para 112)
Detective Sergeant Hampstead also said to him:
‘You better put your hands up to this.’ (ARD 26, Para 114)
Other allegations were raised during the interview, which caused the Applicant to question the fairness of the interview process.

The Applicant said that from that point on, his answers were ‘scattered and read horribly because in my head I’m a world away and can’t even defend myself which was the very reason for creating the document in the first place.’ (ARD 26-27, Paras 115 and 116)
The Applicant was left feeling completely at a loss following the interview, due to what he perceived to be a lack of support and that he had been targeted. (ARD 27, Para 117)
While the Applicant was angry and resentful in relation to the allegations, he was also upset that ‘the Police were simply not doing their job correctly and were breaching almost every point in the Police handbook about procedural fairness…’ (ARD 28, Para 119)
The Applicant’s account of the interview has not been challenged by the Respondent.
The Applicant has raised squarely, what he perceived to be the Police Force’s non-compliance with its own policies and procedures for conducting an investigation as part of disciplinary proceedings.
Notwithstanding, the Respondent has not sought to put into evidence any of the relevant policies or procedures; evidence showing what notification and information was provided to the Applicant prior to the interview; any record of the Applicant’s evidence; evidence from witnesses; or evidence from Detective Sergeant Hampstead, Detective Sergeant Parmenter, or Detective Sergeant Dixon, as to the interview which was conducted on the 21 October 2020.
No explanation has been provided as to why they have not provided evidence challenging the Applicant’s account.
In the circumstances, it is submitted that the Applicant’s account of what occurred during the interview should be accepted and that if the Applicant’s evidence as to the introduction of allegations not previously notified to him and the comments made by Detective Sergeant Hampstead during the interview is accepted, the Commission cannot be satisfied that part of the disciplinary process was reasonable.
Leaving aside the Applicant’s evidence as to the interview, for the purpose of considering whether that part of the disciplinary process was reasonable, the Commission cannot know the information and details provided to the Applicant prior to the interview, how the interview was conducted, whether the Applicant was afforded procedural fairness, and whether the interview was conducted in accordance with the Police Force’s policies and procedures.”

The applicant says he did not hear anything further about the interview or the investigation until some two months later on 9 December 2020. He had asked Superintendent Glynn when the restrictions placed on him could be lifted. He was told he would be served with a report and on 9 December 2020, he was provided with a report entitled “Investigators Report and Supporting Evidence for Service on the Subject Officer”.

The Investigator’s report is not in evidence.
He was served by Superintendent Glynn with a Commander’s direction. The direction is in evidence attached to the applicant’s statement. It directed the applicant not to approach or contact any of the 12 witnesses which were identified as follows:
“●     General Administration Support Officer Phoebe Laird.
·        Chief Inspector Danielle Emerton.
·        Sergeant James Walters.
·        Constable Max Lawther.
·        Detective Sergeant Shaun Hempstead.
·        Detective Senior Constable Robyn Bartlett.
·        Detective Sergeant David Parmenter.
·        Sergeant Shane Blacker.
·        Probationary Constable Melissa Moore.
·        Leading senior Constable Simon Browne.
·        Constable Hayley Schubert.
·        Constable Olivia Massey.”
There is no statement of evidence from any of the identified witnesses, with the exception of Chief Inspector Danielle Emerton in evidence. Counsel for the applicant submitted:
“Part 8A of the Police Act 1990, deals with complaints about conduct of police officers.
A complaint is defined in s.121(1) as being an allegation that any conduct of a police officer is or could be conduct that falls within the description of police misconduct or officer maladministration.
Section 170(1)(a) provides that a document brought into existence for the purpose of Part 8A of the Act is not admissible in evidence in any proceedings, other than those defined within the section.
However, the privilege can be waived and does not attach to a document comprising the complaint. (s.170(2))
The Act does not provide for privilege over the Investigator’s Report.
Leaving aside the question of whether the witness statements detailing the allegations made against the Applicant have ever been protected by privilege under s.170(1)(a), any such privilege was waived when those documents were produced to the Applicant by Superintendent Glynn on the 9 December 2020. (REPLY 21, Para 16)
With the exception of Superintendent Emerton, the Respondent has not sought to put into evidence, statements or other evidence from the witnesses identified in the Direction, nor has an explanation been provided for the absence of those statements.”
There was no claim for privilege made in these proceedings. The respondent did not address the absence of this evidence in submissions and did not take the opportunity to make any submissions in reply to the issues about the absence of this evidence raised by the applicant.
The investigators report has not been put into evidence.
The applicant was upset by the investigators report. He was given the opportunity to respond to the report. He had a conversation with Inspector Thompson who provided direction as to how he should respond to the Notice. The applicant says he saw the opportunity to respond as his first opportunity to respond to the complaint.
On the 22 December 2020, the applicant had a conversation with Inspector Donald regarding the complaint and investigation. He gave evidence that Inspector Donald said to him:
“None of this would have happened if you didn’t say anything”,
“You’ll find nobody likes you here and you will either quit or get over this”,
“Phoebe needs to be able to come to work in a safe environment.”
There is no statement of evidence from Inspector Donald.
Counsel for the applicant submitted that the conversation as reported by the applicant could not be said to be reasonable.
Superintendent Glynn gave evidence that he had a conversation with the applicant on
14 January 2021 after receiving the applicant’s response as follows:
“On Thursday 14 January 2021 I met with Senior Constable John Plant in my office at Gladesville Police Station During this meeting I discussed that I was extremely disappointed in the response that he had provided under the Lancaster protocol in relation to his misconduct matter and that as his Commander, I cannot state that I believe he has learnt from his mistakes and that he won’t engage in such behaviour again, as I had no confidence that he would not engage in the same disrespectful workplace behaviours.”
In evidence is a letter from the applicant’s former solicitors dated 11 January 2021 which responded to the Notice which accompanied the Investigator’s Report. This response is Annexure “A” to the applicant’s statement to be found in the Application at pages 60-69. Counsel for the applicant made the following submissions about the response:
“a.     The response questioned throughout whether the allegations against the Applicant satisfied the requirements for sexual harassment.
b.     The response indicated at the bottom of page 3 (ARD 62) that part of the investigation involved matters concerning Leading Senior Constable Browne, Probationary Constable Moore and Constables Massy and Schubert.
These seem to be the matters that the Applicant says were first raised with him at the time of his interview, and about which he had no prior notice.
c.      The response noted that no complaints had been made by those officers and questioned the ability for those matters to form part of the investigation.
d.     The response noted the absence of a contemporaneous complaint by Phoebe Laird (ARD 63) and while it appears that some form of complaint by her was considered by the Applicant’s former solicitors in formulating their response, that material is not in evidence.
e.     The response noted that Phoebe Laird had allegedly told other officers (Constable Massey, Constable Moore and Constable Schubert) about the Applicant’s alleged behaviour.
However, having regard to the submissions made by the Applicant’s former solicitors, does not appear to have been corroborated by those officers. (ARD 63-64)
f.     The response noted that in response to the Applicant’s alleged comment regarding physical abuse by her boyfriend, Constable Schubert denied that Phoebe Laird told her about that, and Constable Moore said that she told her that she thought that the Applicant was joking.
Although a comment was alleged to have been made between the Applicant and Leading Senior Constable Browne, it is noted to Leading Senior Constable Browne made no complaint that he felt sexually harassed. (ARD 65-66)”
Counsel for the applicant submitted:
“The Respondent has not put into evidence, the complaint, Phoebe Laird’s statement, the statements from the other witnesses, or the records of interview with the investigators.
In the circumstances, it is submitted that the representation made by the Applicant’s former solicitors is an accurate representation of the evidence of the witnesses and is unsupportive to a finding that any sexual harassment had occurred.” I note that the respondent found that sexual harassment had occurred but I am not assisted by the investigators report because it is not in evidence or the ultimate determination supported by reasons made by the respondent that sexual harassment had occurred because that is also not in evidence.”
The applicant emailed Superintendent Glynn, on the 2 February 2021, seeking a timeframe for resolution of the matter. In the course of discussing the progress of the investigation with Superintendent Glynn, the applicant gave evidence that Superintendent Glynn said to him or in words to the effect of:
“You’ve made my job so hard, you’re blaming everybody else, not taking responsibility and it’s full of conspiracy theories.”
The applicant gave evidence that he felt those comments were offensive and unprofessional, with the comments just piling up on him.
On the 18 March 2021, the applicant received a response advising him of the outcome of the investigation. (REPLY 72-73). The email from Superintendent Glynn identified that four issues had been sustained, while three issues were not sustained.
Counsel for the applicant submitted:
“Unfortunately, as the Respondent has not put the allegations into evidence, the email dated 18 March 2021, does not allow the Commission to know the particulars of the allegations, or the evidence that were considered.”
Superintendent Glynn noted that he had referred the matter to the Internal Review Panel with a recommendation for non-reviewable action by way of a Region Commander’s warning and Conduct Management Plan, together with a disciplinary transfer from Ryde. (REPLY 73)
Counsel for the applicant submitted:
“The email from Superintendent Glynn dated 18 March 2021, does not provide any reasoning, information as to his deliberations or consideration of the allegations, the information considered, or other information as to whether the Respondent’s policies and procedures were followed through the process.
These are relevant considerations when considering the disciplinary action was undertaken in a reasonable fashion.”
The Law Enforcement Conduct Commission (LECC) made recommendations that the investigation be handed over to someone outside the Ryde PAC.
Counsel for the applicant submitted:
“While that predated the decision which was ultimately made by Superintendent Glynn and conveyed on the 18 March 2021, there is no indication of what if any consideration was given by the further body before the decision was made by Superintendent Glynn on the 3 June 2021, to give a Region Commander’s warning, implement a six-month Conduct Management Plan and a management initiated transfer from the Ryde PAC. (REPLY 74)
There is no evidence from Superintendent Glynn of the material considered, or his deliberations in relation to the decision made on the 3 June 2021.”
Counsel for the applicant submitted:
“It is maintained that having regard to the evidence before it, the Commission could not be satisfied that the Respondent ever had sufficient information before it to instigate and/or continue with disciplinary action against the Applicant.”
The applicant went off work on 24 June 2021. It is not in dispute that he has a psychological injury that totally incapacitates him for employment for all relevant periods of the claim which commences from 10 December 2021.
The question of whether an employer’s actions were reasonable is a matter for factual determination. I have to make a determination on the balance of probabilities. I have to weigh all of the evidence in the balance. I have done that here and whilst the instigation of the investigation may be considered reasonable in response to allegations which may be considered to potentially constitute sexual harassment, the process must be fair to all parties. Fairness forms the basis of reasonable action taken in relation to discipline in response to what are only allegations, until they are found, after proper investigation, to be true and to constitute sexual harassment. When I weigh all of the evidence in the balance, I cannot be satisfied that the disciplinary action taken by the respondent was reasonable because the respondent has not put in evidence the material which would support such a finding. I have highlighted throughout these reasons the evidence that is missing. In view of the absence of evidence that has been identified, the respondent has not discharged the onus of proof to establish their defence that the actions taken or proposed to be taken by them in relation to discipline and/or transfer were reasonable. The defence fails and the applicant is not precluded from the recovery of compensation.
It is not in dispute that the applicant was totally incapacitated or has no current capacity for work for all relevant periods of the claim.
Neither counsel made submissions on quantum of weekly compensation. At the conciliation/arbitration held on 30 November 2022, the parties had been directed to file an agreed wages schedule which was filed by the applicant on 6 December 2022 setting out the quantum of compensation sought for each period in the event the applicant was successful.
Orders for the payment of weekly compensation will be made in accordance with the schedule filed on 6 December 2022 as follows:
(a)    from 10 December 2021 to 23 February 2022 at the rate of $1,895.84 per week;
(b)    from 24 February 2022 to 31 March 2022 at the rate of $638 per week;
(c)    from 1 April 2022 to 30 September 2022 at the rate of $647.90 per week,
(d)    from 1 October 2022 to 31 March 2023 at the rate of $654.50 per week, and
(e)    From 1 April 2023 at the rate of $669.50 per week to date and continuing in accordance with the provisions of the 1987 Act.
It was agreed that a general order for the payment of s 60 expenses would follow the liability finding.
The applicant has been successful and an order that the respondent pay the applicant’s costs agreed or assessed is accordingly made.
A further application by the applicant that the matter should be declared complex and costs increased by 30% is advanced based upon the following reasons:
“●     Voluminous evidence to consider.
·        Complex factual background to the Applicant’s injury.
· Complex factual background to the matters alleged by way of the s.11A defence.
· Consideration of matters falling within and outside the s.11A defence.
·        The need for written submissions.”
Having taken into account the matters identified by the applicant, I am satisfied that the matter should be declared complex and the costs of both parties should be increased by 30%.

[2023] NSWPIC 144

6 April 2023