Rennie v State of Victoria
[2023] VSC 762
•19 December 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 04029
| PETER RENNIE | Appellant |
| v | |
| STATE OF VICTORIA (DEPARTMENT OF JUSTICE AND COMMUNITY SAFETY) | Respondent |
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JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 October 2023 |
DATE OF JUDGMENT: | 19 December 2023 |
CASE MAY BE CITED AS: | Rennie v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2023] VSC 762 |
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ADMINISTRATIVE LAW – Judicial review and appeals – Workplace injury – Appeal from a Magistrates’ Court decision – Claim for psychiatric injury in the course of or arising out of employment – Where the injury arose from management action to investigate misconduct allegations and subsequent termination of employment– Where two claims were made in relation to the same injury – Separate consideration of injury during two time periods – Second injury analysed as one to which employment must be a significant contributing factor – Whether consequential error in considering the management action in separate time periods – Whether Magistrate impermissibly reversed the relevant onus of proof as to reasonable management action – Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) ss 39, 40, 266 – Robinson v SPI Electricity (Workcover) [2012] VMC 30.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | F A L Ryan SC with G Angelowitsch | Mr Wolf Legal |
| For the Respondent | M Norton with S Scully | IDP Lawyers |
HER HONOUR:
Mr Rennie (the appellant) claimed psychiatric injury in the course of his employment as a prison officer at Langi Kal Kal prison. The psychiatric injury arose from suspension during investigation into misconduct allegations and eventual termination from his role. He made a claim for compensation pursuant to s 39(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (the Act). The claims agent, on the part of the respondent employer (or, the Department), determined that there was no entitlement to compensation by reason of the operation of s 40(1)(a) of the Act. That provision disentitles a worker to compensation in respect of a ‘mental injury caused wholly or predominantly by management action taken on reasonable grounds and in a reasonable manner’. The management action in question occurred over a period of time and the claim for compensation dated 6 January 2021 was lodged whilst the management action was ongoing (the first claim). Ultimately the management action resulted in the Department terminating Mr Rennie’s employment on 24 March 2021. Mr Rennie lodged a second claim dated 28 May 2021, again in respect of his psychiatric injury, identifying the relevant period of employment as the entirety of the time covered by the first claim and extending up until the date of termination (the second claim). The second claim was also rejected.
Mr Rennie disputed these rejections and issued proceedings in the Magistrates’ Court claiming entitlements in accordance with the Act.
A hearing was conducted online between 20 and 24 June 2022 with final written submissions delivered on 29 July 2022. Her Honour delivered reasons dated 9 September 2022 (the reasons) in which she concluded that:[1]
(a)Mr Rennie suffered psychological injury in the nature of an adjustment disorder with depressed mood.
(b)Mr Rennie’s psychological injury arose out of or in the course of his employment with the Department and the events and circumstances relied upon in the first claim with a nominated date of injury of 21 September 2019.
(c)Mr Rennie’s mental injury was caused wholly or predominantly by the Department’s management action as relied upon in the first claim.
(d)The management action was taken on reasonable grounds and in a reasonable manner.
(e)Mr Rennie had an incapacity for pre-injury employment resulting from his non-compensable psychological injury which remains current, such incapacity commenced on 6 February 2020.[2]
[1]At [264] of Rennie v State of Victoria [2022] VMC 26 (the Reasons).
[2]Her Honour determined at [140] of the Reasons that the date from which incapacity arose is 6 January 2021. The reference in [264] to 6 February 2020 is clearly an error.
Accordingly she dismissed the proceeding.
The Appeal
Mr Rennie now appeals her Honour’s final orders under s 109 of the Magistrates’ Court Act 1989 (Vic). Such an appeal is confined to questions of law. Mr Rennie identifies six questions of law. Relevantly the questions fall into two distinct groups.
The first group (questions 1-3) are described as the primary grounds of appeal. They are:
Ground 1
Whether the learned Magistrate erred failing to consider whether the applicant had sustained psychiatric injury arising out of or in the course of his employment generally, and instead separating her inquiry into two distinct time periods, denoted by the first claim and the second claim.
Ground 2
By reason of her Honour’s failure to consider whether the applicant had sustained psychiatric injury arising out of or in the course of his employment generally, her Honour also erred in the application of s 40(1)(a) of the WIRC Act by failing to apply it to the applicant’s employment generally and instead separating her inquiry into two distinct time periods, denoted by the first claim and the second claim.
Ground 3
Her Honour erred by confining her consideration of s 39(1) of the WIRC Act relevant to work events from 6 February 2021 onwards to the termination of employment only.
These grounds go to what the appellant says is an error by her Honour in the analysis of s 39 of the Act with a consequential error in her approach to s 40.
The secondary questions (4 and 5) are directed to the issue of whether Mr Rennie was disentitled to compensation because of the nature of the management action taken. Those grounds are:
Ground 4
Her Honour erred in determining that the truth or otherwise of the allegations of misconduct are not relevant to the consideration of reasonableness of the grounds of management action pursuant to s 40(1)(a) of the WIRC Act.
Ground 5
Her Honour erred in her consideration of s 40(1)(a) of the WIRC Act by reversing the onus of proof as to whether she was persuaded that the lapse of time between 18 December 2020 and the termination notice of 22 March 2021 was reasonable.
The sixth question, an error in failing to draw a Jones v Dunkel inference, was abandoned at hearing.
The hearing below and the Magistrate’s findings
The appellant makes no complaint in relation to the factual findings made by her Honour. The following summary of the factual circumstances is taken from the Magistrate’s very careful and detailed reasons:
5.In January 2014, Mr Rennie, who is aged 63 years, began full-time employment with the Department as a prison officer at the Langi Kal Kal prison (the prison).
…
February 2018 direction regarding conduct
7.In early February 2018, Mr Rennie attended a meeting with Ms Catherine Darbyshire, general manager of the prison. Mr Rennie was informed of a complaint about his conduct and given a letter headed ‘Direction in relation to your conduct’ (the February 2018 direction).
8.The complaint concerned a colleague feeling uncomfortable on a date in September 2017 due to Mr Rennie having reportedly moved into her ‘personal space’. He had also allegedly said they ‘should sit and have cocktails’, rather than return to another work area.
9.The February 2018 direction stated that the complaint followed incidents of ‘similar behaviour’, including:
•26 December 2016 – an incident of being asked to submit a report after walking in on a female colleague in the toilet.
•14 March 2017 – an incident of being spoken with about appropriate conduct after it was alleged he had slapped a female colleague’s buttocks.
10. Mr Rennie was advised the conduct was unacceptable…
…
12.Mr Rennie was further informed that the direction did not constitute formal disciplinary action and formal misconduct proceedings would not be initiated.
13.As for the alleged misconduct referred to in the February 2018 direction, according to Mr Rennie, none of the matters were true other than entering the toilet inadvertently as he had explained at the time.
…
November 2019 meetings and email regarding conduct
15.On 21 November 2019, Mr Rennie had a meeting with his direct manager, Mr Paul Bulger (the Bulger meeting). A support person, Mr Colin Block, also a union delegate and an HSR, was present. Mr Rennie was informed of further complaints against him by colleagues. He was told to be careful because, as an HSR, he could be targeted by prison management.
16.… [Mr Rennie] regarded the meeting as informal as no notes or minutes were taken.
17.Mr Rennie then received an email from Mr Bulger the same day with the subject-line ‘Points from our Meeting’ (the November 2019 email) in which the meeting was described as ‘an early intervention meeting’. The November 2019 email instructed him ‘to be mindful of his interactions with other staff’.
…
Suspension from duty
20.On 22 February 2020, Mr Rennie attended a meeting with Ms Darbyshire and another manager. Mr Rennie had a support person present (Ms Mary Wary). He was handed a notice headed ‘Suspension from duty’ and dated 19 February 2020, which was authored by Ms Melissa Westin, Deputy Commissioner, Custodial Services (the suspension notice).
21.The suspension notice informed him that he was immediately suspended from duty with full pay whilst there was an assessment of alleged misconduct.
22.The assessment, stated to be in accordance with the Victorian Public Service Enterprise Agreement 2016 (VPSEA 2016), would determine whether a formal misconduct investigation was to be authorised.
23.The alleged misconduct related to ‘failing to demonstrate respect for female colleagues within the [prison] and/or promote an environment that encourages respect and/or create an environment that is free of harassment, by invading their personal space and/or watching and staring at them causing them to feel uncomfortable’.
24.Additionally, it was alleged that Mr Rennie had failed to follow the November 2019 direction by Mr Bulger about behaving in an appropriate and respectful manner in the workplace.
25.The suspension notice nominated Ms Darbyshire as the contact person to provide support or, alternatively, he could nominate another person.
26.Mr Rennie left work after the meeting on 22 February 2020. That was his last day of work and he ultimately never returned.
Against this background the first claim identified the relevant period of time as commencing with the Department’s decision to suspend Mr Rennie.
Her Honour’s reasons thereafter detailed the chronology of events and contact between Mr Rennie and his employer following on from 22 February 2020.
Relevantly this included:
(a) Receipt of a ‘Notice of Investigation into Alleged Misconduct’ dated 7 April 2020 (the April 2020 notice) which set out six allegations of misconduct and informed Mr Rennie that an investigation of alleged misconduct had been authorised under the VPSEA 2016.
(b) Mr Rennie had requested two extensions of time to respond to the April 2020 notice. On 1 May 2020 he provided a response by email to the investigator, Mr Gascoyne in the Department’s Investigations Unit, denying all allegations.
(c) Mr Gascoyne requested an interview with Mr Rennie who agreed. However because of the imposition of COVID-19 restrictions at the time, the in-person interview could not proceed and ultimately the interview proceeded as questions in writing, which Mr Rennie answered. That process concluded on 1 July 2020.
(d) On 11 August 2020, Mr Gascoyne advised Mr Rennie that the investigation was ‘at the end stage’. By 7 September 2020, he advised that the matter was with a delegate.
(e) By September 2020 Mr Rennie said that his mood began going downhill and he felt he did not know what was going on. On 21 September 2020, Mr Rennie first attended his general practitioner, Dr Hays, about mental health and workplace issues. At this time he was still unaware of the investigation outcome. He attended Dr Hays again about these issues on 19 October and 2 November 2020. Mr Rennie accepted that at this time the Department was not aware that he was suffering from stress.
(f) In November 2020 a union delegate on behalf of Mr Rennie notified a complaint about the time taken to conduct the investigation.
The investigation concluded when the Department communicated the outcome to Mr Rennie. Her Honour’s reasons said:
48.Mr Rennie learned of the investigation outcome by letter dated 1 December 2020 from Ms Carly Edwards, Acting Deputy Secretary of the Department headed ‘Allegations of misconduct – findings and proposed disciplinary outcome’ (the December show cause notice). He thought he received this by mail.
49.Mr Rennie was informed that his conduct as alleged in Allegations 2 to 6 amounted to misconduct in accordance with the Management of Misconduct Policy and also constituted misconduct under the relevant clause of the VPSEA 2020. Allegations 2 through to 6 were found to be substantiated (although Allegation 1 was not substantiated).
50.The proposed disciplinary outcome was the termination of his employment with Mr Rennie having an opportunity to respond.
51.Mr Rennie’s lawyers responded on his behalf by letter dated 18 December 2020 to the Department denying all allegations and requesting reinstatement of his employment.
…
53.As of 24 March 2021, Mr Rennie’s employment was terminated by way of a notice dated 22 March 2021 (the termination notice).
54.Under cross-examination Mr Rennie denied feeling distressed by his termination, rather he was depressed by the whole process. Mr Rennie agreed he felt relief that a final outcome had been reached because it had been a long process…
Thereafter her Honour set out the other lay evidence. For present purposes it is only necessary to summarise the two witnesses called by the respondent in support of its s 40(1)(a) defence. Mr Gascoyne was called. His investigation reviewed information already gathered. He said that after receiving Mr Rennie’s response of 1 May 2020, it was reviewed and compared with the accounts of witnesses. He said that the next step would ordinarily have been an in-person interview but that the limitations at the time made that impossible. After Mr Rennie provided written responses to the questions, Mr Gascoyne drafted his final investigation report and he anticipated finalisation of the process as at 11 August 2020 to notify an outcome in ‘the coming weeks’.[3] His initial report was dated 7 August 2020.
[3]Reasons (n 1) [85].
Mr Gascoyne said he understood there was a delay at a higher level in making the decision because a need to obtain external legal advice was identified. That legal advice addressed the question of tendency evidence relevant in substantiating the complaints. Mr Gascoyne gave evidence that on receipt of that legal advice he reviewed his initial report and changed the findings in his report based upon that legal advice. His initial report had found the majority of allegations unsubstantiated, but those conclusions were changed so the majority of allegations were substantiated. The report was finalised in early October 2020 and Mr Gascoyne had no involvement after submitting his report to superiors on or about 7 October 2020.
Ms Katelyn Huffer also gave evidence. She was the manager of workplace relations at the Department. Her evidence addressed the complexity of decision making with the need for ‘input, authorisation and review’ further complicated by the requirement to work remotely at that time. She said she was contacted by Mr Rennie’s union representative by an email dated 24 November 2020 and was told that Mr Rennie wished to lodge a complaint about the length of time the investigation had taken. She described the steps she took in response to the complaint and the reasons explaining the length of time to that point. She said she conveyed a response on 10 December 2020. She had no knowledge of events after that time.
The defendant led no evidence explaining the passage of time between 18 December 2020 and 22 March 2021.
Her Honour then summarised the medical evidence in some detail.
The Magistrate’s consideration
Her Honour commenced the section of her reasons headed ‘Consideration’ by stating the legal and evidentiary onus of proof that rested with each party. Mr Rennie had to establish on the balance of probabilities that his injury arose out of or in the course of employment pursuant to s 39(1) of the Act. The Department had the onus of proof regarding its management action defence relied on under s 40(1)(a) of the Act. The reasons addressed the legal principles applicable to assessing reasonableness of management action, confirming that both the grounds for the management action and the manner in which it was taken must be established as reasonable.[4]
[4]The Magistrate discussed these principles at [104]-[109] of the Reasons and cited Krygsman-Yeates v State of Victoria [2011] VMC 57,[35] and Pulling vYarra Ranges Shire Council [2018] VSC 248.
The reasons set out the findings as to the diagnosis and the nature of the injury.
Critically the reasons turned next to what is headed ‘Jurisdiction and Causation Issue’, and set out the following:
117.It was accepted by Counsel for the Department that the evidence supported Mr Rennie’s psychological condition having arisen out of or in the course of his employment.
118.Beyond that threshold, however, the parties were at odds in relation to causation. Submissions were focussed on: the onset and timing of injury; the time-frame and aspects of employment that were causative of injury; and the scope of the respective claims.
119.The circumstances relied upon by Mr Rennie in his initial claim form of 6 January 2021 (the first claim) were as follows:
Stress and anxiety and depression caused by employer communications / lack of communication and investigation process, including the decision to suspend as opposed to some other measure which would have enabled me to work, which commenced on 19 February 2020 and his (sic) continuing. I’ve been suspended during investigation process with no opportunity given to work.
120.Mr Rennie’s later claim set out circumstances of injury in the claim form of 28 May 2021 (the second claim) as follows:
Failure to take on board my responses to the investigation process and then taking the decision to terminate my employment for events which I say did not occur and those that did occur, were not a breach of the code of conduct reasonably should not have resulted in the termination of my employment.
121.As matter of law, Counsel for the Department submitted, Mr Rennie’s first and second claims gave rise to separate causes of action and causes of injury. That principle, well-established in this jurisdiction, was enunciated in Robinson v SPI Electricity Pty Ltd.
122.Pursuant to s 266(1) of the Act, the Court has jurisdiction ‘to inquire into, hear and determine any question or matter’ arising out of ‘any decision’ of the Authority.
123.In this case, the Court’s jurisdiction arises out of the first notice of rejection and the second notice of rejection.
124.I agree, therefore, with Counsel for the Department that, on the issue of causation, the causes of action arising out of each claim must be considered separately and not conflated as a ‘continuation’ of each other.
The reasons then turned to the breadth of employment circumstances that arose for consideration, setting out all of the relevant events up until the lodging of the first claim. The Magistrate observed that the events and timeframes did overlap as between the first and second claims. Her Honour concluded that the first claim did not and could not extend to events and circumstances subsequent to its lodgement on or around 6 January 2021.[5] Her Honour then found that the second claim relies upon subsequent employment-related events specifically the termination of employment.[6]
[5]Reasons (n 1) [130]. The Reasons incorrectly state 6 February 2020. The first claim is dated 6 January 2021.
[6]Ibid [131].
As to causation her Honour concluded:
143.In summary, therefore, on causation, Mr Rennie must establish injury, to the requisite standard of proof, against the threshold test applicable to each, or either, of his respective claims.
144.I have already stated the threshold test for causation in respect of the first claim.
145.It followed that the further question was whether subsequent events and circumstances relied upon in the second claim were a ‘significant contributing factor’ to the recurrence, aggravation acceleration, exacerbation or deterioration of any existing psychological injury (caused by the first claim).
These conclusions, in particular at [145], are at the heart of the appellant’s primary grounds.
The Magistrate then analysed the medical evidence under the heading ‘Whether psychological injury arose out of or in the course of employment’. After summarising Mr Rennie’s evidence and the medical opinions in relation to injury for the period of time identified in the first claim, her Honour concluded:
160.Weighing the whole of the evidence, I am satisfied that that Mr Rennie’s psychological injury arose out of the matters and circumstances relied upon under the first claim.
The Magistrate then turned to whether there was a compensable injury arising out of the matters relied on in the second claim under a separate heading, ‘Whether a recurrence, aggravation, acceleration, exacerbation or deterioration was caused by reason of the termination of employment’. Her Honour concluded:
161.The primary submission on causation by Counsel for the Department was that Mr Rennie did not suffer any injury resulting from matters relied upon in the second claim (essentially the termination of employment).
162.In my view that submission is correct and is supported by Mr Rennie’s own evidence as well as the medical evidence.
The reasons set out Mr Rennie’s evidence on this question and said that his evidence accorded with the histories given to doctors, save for one exception, before concluding that:
165.Weighing the whole of the evidence, including Mr Rennie’s evidence, I find that the burden of proof has not been discharged by the plaintiff in relation to events post the first claim – the termination of employment – having been causative of an aggravation or worsening of his psychological injury.
The reasons address the defence of reasonable management action. There was no issue that the suspension of employment, the investigation of complaint, and dismissal amounted to management action nor that the injury was wholly or predominantly caused by the management action. The reasons then turned to whether the respondent had established that the management action was taken on reasonable grounds, and to whether the action was taken in a reasonable manner.
The grounds for taking management action was contested at trial. The appellant’s complaint before me as to her Honour’s approach in concluding that the grounds for management action were reasonable, was her Honour’s failure to inquire as to the truth of the allegations. Her Honour said:
182.I agree with Counsel for the Department that in assessing the reasonableness of the grounds of the management action, my task did not extend to deciding the truth or otherwise of the allegations themselves. My task was not to assess the reliability or otherwise of the co-workers’ complaints. My task was also not to weigh up the ‘primary evidence’ and assess the Department’s actions with the benefit of hindsight.
…
184. An objective assessment of the Department’s management action and to consider its reasonableness or otherwise in a global context. That did not extend, in my view, to assessing and making findings about the truthfulness of those who complained.
The reasons then turned to matters after 6 January 2021. Given the finding that there was no compensable injury in relation to the second claim, her Honour said it was not necessary to consider whether there were reasonable grounds for the termination. Her Honour nevertheless addressed that argument and concluded that Mr Rennie’s employment was terminated on the basis that at least some of the complaints were substantiated, demonstrating a ‘pattern of conduct’ amounting to misconduct under the VPSEA 2016 for which termination was a possible outcome. She therefore concluded that, assuming there been a compensable injury in relation to the period after 6 January 2021, the action of terminating employment was taken on reasonable grounds.
Turning then to whether the management action was reasonable in its manner, the Magistrate described two main issues arising: the time taken and the communication regarding the action being taken. Her Honour said:
246. I conclude that the communication was appropriate and fair in both what was communicated and the frequency and method of communication. I did not really understand this aspect of the management action to be seriously challenged as unreasonable by Mr Rennie’s Counsel.
…
250. A more significant matter for my consideration as regards reasonableness of the manner of the management action concerned time-frames and the question of delay.
251. The entire process between suspension from duty and termination of employment took some 13 months. Yet, within that overall time-frame, there were distinct phases and processes about which there was considerable evidence.
…
255. In my view, applying the guidance of Stichling, a protracted, but not excessive or unreasonable, period of time passed between Mr Rennie’s suspension and the issuing of the December 2020 show cause notice and then the termination notice.[7]
256. That is because I consider that the evidence of Mr Gascoyne and Ms Huffer was compelling regarding: the procedural steps and processes taken; the impact of the COVID-19 restrictions; the obtaining of legal advice; and the weightiness and complexity of issuing a show cause notice and then acting upon it.
[7]Citing State of Victoria v Stichling [2014] VSC 62.
Her Honour set out extensive reasons from Mr Gascoyne’s and Ms Huffer’s evidence explaining the time taken for steps up until December 2020 before finally observing that, Mr Rennie having provided a response to the show cause notice on 18 December 2020, the final outcome of this notice remained pending at the time of the first claim being lodged.
As to the period after that, the Magistrate’s reasons are expressed this way:
…yet I am not persuaded that was unreasonable in all the circumstances.[8]
[8]Reasons (n 1) [265].
Identifying compensable injury (Grounds 1-3)
Submissions
The appellant submits that by its proper application s 39(1) of the Act does not require, separately, consideration of two discrete periods within the employment as if they were discrete causes of action. He says that the Magistrate’s reliance on the principles in Robinson v SPI Electricity Ltd (‘Robinson’)[9] was misconceived and led to error as identified in Ground 1.
[9]Robinson v SPI Electricity (Workcover) [2012] VMC 30 (‘Robinson’).
He submits that there is no jurisdictional difficulty in having two claims considered under s 266 of the Act. The lodgement of two separate claims in respect of the same injury does not give rise to two separate causes of action and there is no prohibition in either fact or law in considering the totality of events relied on under the first and second claims to establish a single compensable injury. He says that the respondent’s concession that the appellant had sustained a psychological condition arising out of or in the course of his employment, properly made, should have meant that the defence raised by s 40(1)(a) was the only issue in dispute.
The appellant points to the absence of any definition in the Act of ‘pre-existing injury or disease’ and says that on a strict reading, any worsening of his injury could lead to a further claim. He refers to comment by the Court of Appeal in Ozbilgi v Bradnams Windows & Doors Pty Ltd (‘Ozbilgi’)[10] against a construction that any deterioration of a work-related injury amounts to a fresh compensable injury.
[10][2011] VSCA 210.
The appellant submits that because of this error in analysis the Magistrate also erred in bifurcating her consideration of the manner in which the management action was conducted. The appellant says that her Honour should have considered the entirety of the management action, from February 2020 to March 2021. Relatedly, the appellant says that her Honour’s separate consideration was too narrow in looking only at the impact of termination and disregarding the impact of a further period of uncertainty and delay for Mr Rennie after the lodgement of his first claim. The lack of any communication from the employer to Mr Rennie in this latter period, and the absence of any positive evidence to explain a further delay, combine to form the basis for grounds 2 and 3.
The respondent submits that before the Magistrate the first controversy was whether the two claims lodged concerned the same or separate injuries (with the second injury representing an aggravation of the first). In effect, the Magistrate found there to be one injury, caused by employment prior to 6 January 2021, with subsequent events not worsening the injury. The respondent submits that this finding on causation was a question of fact and not law and is clearly one open on the evidence.
The respondent also submits that Ozbilgi has no application, as that case concerned a claim made for a deterioration of an injury that had previously been the subject of consent orders terminating an entitlement to weekly payments.
Finally, the respondent submits that if the finding on compensable injury did involve an error of law, then the error did not vitiate the Magistrate’s ultimate decision.
The respondent submits that the factual finding that there was no change to the injury after 6 January 2021 makes the legal debate as to the nature of any further injury to be proved, immaterial. The Magistrate concluded:
237.As for the termination of Mr Rennie’s employment, it is not strictly necessary for me to consider the reasonableness of that management action. That is because my conclusion that the termination of employment was not causative nor a significant contributing factor to the production or aggravation of injury.
…
265.It is true that there was limited evidence regarding the lapse of time between 18 December 2020 and the termination notice of 22 March 2021, yet I am not persuaded that was unreasonable in all the circumstances. That is, when I consider the overall lengthy history of the matter and the weightiness of the step of termination of employment.
The respondent submits this demonstrates that, had her Honour treated the two claims as involving an injury and a management action spanning the entire period, her Honour would still have reached the same conclusion that Mr Rennie was disentitled to compensation.
Consideration
The Magistrate was referred to and purported to apply Robinson. That case involved a question of jurisdiction of the Magistrates’ Court under the predecessor of s 266 of the Act. The question there was whether a court could consider liability should be accepted for a back injury arising throughout Mr Robinson’s employment as a gas meter reader, when the only decision before the Court was the rejection of a claim for back injury arising from employment on 1 February 2011. Magistrate Garnett considered various Accident Compensation Tribunal cases and County Court decisions on the jurisdiction of a Court under s 39 of the Accident Compensation Act. Section 264(1) of the Act is in the same terms and provides generally for jurisdiction. It says:
Jurisdiction - general
(1) Subject to the County Court Act 1958, the County Court has exclusive jurisdiction to inquire into, hear and determine any question or matter arising under this Act or the Accident Compensation Act 1985 out of –
(a) any decision of the Authority, an employer or a self insurer; or
…
Section 266 of the Act gives the Magistrates’ Court a like jurisdiction unless expressly excluded.
I agree with the appellant that her Honour’s reference to Robinson, and the concept of two causes of action, was misconceived. The respondent accepted in oral submissions that Robinson was not directly on point.[11] Magistrate Garnett concluded that the jurisdiction of the Court was confined to a consideration of the decision or decisions on compensability before it. That is, it was confined to considering one aspect of employment, as this was the only aspect that Mr Robinson had claimed and on which the Insurer had made a decision.
[11]Transcript of Proceedings, Peter Rennie v State of Victoria (Supreme Court of Victoria, S ECI 2022 04029, Justice Forbes, 17 October 2023) 27.11.
Robinson says nothing about the analysis required where there is more than one aspect of employment implicated in a compensable injury before the Court.
Where two claims for the same injury arising from different aspects of the work duties are both before the Court, it does not compel an analysis that one claim must be considered as an aggravation of the other. Rather the claims may well identify two or more ways in which a single injury arises out of or occurs in the course of employment ensuring the court has jurisdiction to determine all aspects of compensability. The nature of any injury would no doubt be the subject of lay evidence and medical opinion.
Here, there was no issue of jurisdiction. There were two decisions covering the entire period in question. Indeed, it could be said that the decision on the first claim described the relevant employment as a period that ‘commenced on 19 February 2020 and his (sic) continuing’ was itself sufficient to establish jurisdiction. Clearly the question of jurisdiction was put beyond doubt by the second decision which set out the history relevant to the first claim and said it ‘considers the [first decision] is still relevant’.[12] The Magistrate held that, while there was overlap between the two claims, the first claim ‘did not and could not extend to events and circumstances subsequent to its lodgement’ on or around 6 January 2021.[13] It may well be that the second claim was lodged simply to guard against the possibility of such a finding. The two claims relevantly put before the Court the entire period of employment (or more accurately the entire period of management action) alleged to have resulted in compensable injury.
[12]Appellant, ‘Affidavit of Naomi Riggs in Support of an Application for Leave to Appeal’ sworn on 19 October 2022 in Peter Rennie v State of Victoria S ECI 2022 04029, exhibit NR-1, 38-42.
[13]The Reasons incorrectly state at [130] that the first claim was lodged on 6 February 2020. The first claim was lodged on 6 January 2021.
Mr Rennie’s Magistrate’s Court complaint pleaded a single injury being an adjustment disorder with depressed mood. The defence denied any injury and, in the alternative, said that if injury arose out of or in the course of employment, then employment was not a significant contributing factor to any such injury. The pleadings gave no assistance on the existence or identification of any pre-existing injury. It did not follow, as a matter of law, that the later events gave rise to a separate injury and therefore must be considered an injury in the extended sense. All that is required is for the plaintiff to establish on the balance of probabilities whether some or all of the overall period before the Court gave rise to compensable injury.
The Magistrate proceeded on the basis that, as was submitted to her, the two claims gave rise to two ‘causes of action’. The phrase was an unfortunate one, as it is not generally used to identify compensable injury, but to identify a basis in law for a liability to a person for injury; whether in tort or contract or otherwise. The concept of a ‘cause of action’ can be found in Part 7 of the Act dealing with proceedings for damages. It is not found in Part 2 – Workplace injuries – in which ss 39 and 40 are found and in which the criteria for eligibility for compensation are set out.
Compensability requires a worker to establish an injury that arises out of or occurs in the course of employment. For particular injuries, more is required, for example certain provisions in s 40(3) which address a pre-existing injury or disease. There may be more than one way that employment is a cause of injury within the definition of s 39. Classically an injury may arise because of the combination of a single incident and the nature of the work tasks more generally. Proof of an injury may be established by reference to different aspects of employment. This is not equated with any concept of separate causes of action for the purpose of s 39 of the Act.
The Magistrate erred in concluding that, because there were two claims, as a matter of law each claim must be considered separately and not conflated as a ‘continuation’ of each other. Further it was an error to conclude that, in law, the second claim must be considered on the basis that as the first claim was productive of an injury that itself is is a pre-existing injury for the purpose of assessing compensability of a second claim. This is particularly so where there was no return to employment after 6 January 2021, only an ongoing management action.
I agree that the case of Ozbilgi addressed a different point and is not directly relevant. It dealt with circumstances where a deterioration occurs and the only connection between employment and a later deterioration is that the original injury was work related. In that regard, Warren CJ said:
As the learned trial judge held, employment cannot be a significant contributing factor to the deterioration of an injury solely because the original injury arose in the course of the employment.[14]
[14]Ozbilgi v Bradnams Windows & Doors Pty Ltd (n 10) [38].
Mr Rennie was not seeking to prove a deterioration nor was he required to do so. He was simply seeking to prove an ongoing causal relationship between employment beyond 6 January 2021 and his continuing psychological condition. However, Ozbilgi is helpful because Warren CJ noted that the County Court only had jurisdiction to deal with matters arising out of a decision by the Workcover Authority.[15] Although not referred to in Robinson, which was decided the following year, the reasoning is consistent.
[15]Ibid [16].
I do not accept the respondent’s second contention – that the finding on causation was one of fact not law, for the simple reason that the error was one of application of law to the facts as found. Although the finding as to injury is one of fact addressing causation, the analysis undertaken is wrong in principle because it addressed the wrong test for compensability in respect of the second claim.
For these reasons I have concluded that the Magistrate was led into error in her analysis of what Mr Rennie had to prove to satisfy s 39. Mr Rennie was not required to prove that the employment had caused two distinct and sequential psychological injuries. He was required to prove compensable injury relating to some or all of the period between February 2020 and March 2021. As a result of bifurcating the time period and requiring proof of a deterioration or aggravation of his condition in relation to the second time period, the Magistrate asked herself the wrong question.
This error led to two consequential analytical errors. First, as can be seen from paragraph [145] of the reasons, it led to consideration of the second claim being confined to events after 6 January 2021. In light of the general concession made by the respondent that Mr Rennie’s psychological condition arose out of or in the course of his employment,[16] the separate consideration of events after lodgement of the first claim as causative of further injury in isolation was erroneous. Secondly, and relatedly, it also led to the Magistrate’s analysis of the management action in relation to the second claim by reference to a discrete (and not overlapping) period of time as encompassed by Ground 2.
[16]Reasons (n 1) [117].
The reasons comprehensively, and in my view unimpeachably, assess the reasonableness of the steps taken up until the show cause notice was issued and responded to – that is, in respect of the time period prior to lodgement of the first claim. The additional delay from 18 December 2020 should have been assessed cumulatively with the time taken prior. As was acknowledged by the claims agent’s response to the second claim, the decision in relation to the first claim was ‘still relevant to the determination of liability’ for the second claim.
Finally, I reject the argument that any error is not a vitiating error. Even if the conclusion as to compensable injury overall would not change if the whole period was considered, the bifurcation of that period also bore on the Magistrate’s assessment of the length and reasons for delay in concluding the management action.
Grounds 1 and 2 are made out.
It is not necessary to deal in any length with Ground 3, that consideration of the second claim dealt only with the termination of employment. The second claim clearly identified two aspects: the failure to consider the responses given by the appellant, and the termination which he characterised as unwarranted in light of those responses.
On one view, the only relevant employment event after 6 January 2021 was the receipt of termination letter. It is not surprising that it was given prominent attention. It was open on the evidence for her Honour to conclude that the termination itself was not causative of injury. However, the appellant was entitled to consideration of his response to the show cause notice and the further three month passage of time bearing on his injury. Having said that, I am not persuaded that the Magistrate did confine her consideration of the period after 6 January 2021 only to the termination.
Her Honour’s reasons included Mr Rennie’s evidence and that of his doctors as to his mental health between January and March 2021 and beyond, and the referral to a psychologist whom he attended five times between 30 November 2020 and 19 March 2021. Her Honour summarised the medical opinion of the psychologist. Her Honour recorded the persistence of symptoms from September 2020 until the present with ups and downs during that time and Mr Rennie’s own view that it was the lack of communication about the process and investigation, rather than the dismissal itself, that he found upsetting.
Her Honour did also consider the ‘weightiness of the step of termination of employment’.[17] This allowed (at least implicitly) for a period of time for the employer to consider the response and decide in light of that response to maintain termination of employment. But, for the reasons outlined earlier, her Honour did not consider the reasonableness of this three month period in the context of the overall time taken for the management action. The question as to reasonableness and the employer’s onus is highlighted and perhaps magnified by the complaint in late November as to the length of time taken thus far.
[17]Reasons (n 1) [265].
Questions of Law 4 and 5: Reasonable Management Action
Although the success of Grounds 1 and 2 are sufficient to grant the relief sought, it is desirable to say something about these remaining grounds.
There are two aspects to the approach to whether or not the management action was reasonable. First was the relevance of the truth or not of the allegations themselves. Second was whether the Magistrate incorrectly reversed the onus of proof, by placing an onus on the plaintiff to persuade her that the management action was unreasonable.
Submissions
The appellant submits that, while the Magistrate was not required to ‘conduct a surrogate external investigation’[18] into the allegations, her Honour was required, in determining whether the grounds were reasonable, to have regard to the context in which they were made. The appellant submits that context includes a consideration whether the complaints were frivolous or without substance or made for some ulterior purpose. Absent such consideration, the appellant says an employer could take management action of a serious nature on spurious grounds. The appellant identified evidence that emerged during the hearing and the absence of other evidence that raised the issue of the reasonableness of the grounds relied on.
[18]Appellant, ‘Applicant’s Updated Written Case’, Submissions in Peter Rennie v State of Victoria S ECI 2022 04029, 4 August 2023, [45].
On the question of onus, the appellant submits that there was limited evidence regarding the 13-week period between the response to the show cause notice and the subsequent termination. He submits that this period was found to be reasonable because the Magistrate reversed the relevant onus in saying she was ‘not persuaded that it was unreasonable’.[19]
[19]Reasons (n 1) [265].
Consideration
In my view, neither of these grounds are made out.
While the Magistrate expressly rejected an argument that she had to form a view about the truth of the allegations, her Honour did in fact consider and reject the arguments put on behalf of Mr Rennie as to the context of the allegations. Her Honour considered and rejected the submission that some complaints were insufficient to warrant investigation because they were trivial or baseless. Her Honour also considered and rejected a submission that they were motivated by an ulterior purpose. Her Honour concluded that the defendant:
reasonably held concerns regarding instances of conduct… that the Department regarded as being ‘a pattern of inappropriate behaviour’ on a background of two prior directions.[20]
[20]Reasons (n 1) [215].
The reasons did identify and deal with the ‘global context’ in which the allegations were made. The Magistrate accepted evidence that demonstrated a concern to balance obligation of fairness to Mr Rennie with the obligation to ensure it was providing a safe place of work to others. Mr Rennie strongly denied the allegations (save for one). The fact of this denial meant that uncovering ‘the truth’ meant inevitably accepting one person’s recollection of events over another person’s recollection.
To the extent that the Magistrate said it was not her task to decide the truth or otherwise of the complaints but to objectively assess the reasonableness of the Department’s grounds for taking action, her Honour was correct. Her Honour’s reasons reflect that she did undertake this assessment. No error lies in her Honour’s conclusion that the grounds for taking the management action to investigate the complaints were reasonable.
The relevant onus on the defendant to make out its defence was correctly stated in a number of places elsewhere in the reasons.[21] Reading the transcript of the trial, it is also clear from the Magistrate’s comments that this onus remained at the forefront of her Honour’s mind when hearing the evidence. For example, in considering an application to put documents to Mr Gascoyne during cross examination, her Honour said:
These cases are unusual in the sense that the plaintiff bears the onus certainly and the defendant bears the onus in terms of the management actions’ reasonableness…[22]
[21]See, for example, Reasons (n 1) [105], [108], [243].
[22]Transcript of Magistrate’s Court proceeding M11410069 which forms part of Exhibit NR-3 of ‘Affidavit of Naomi Riggs’ sworn on 21 July 2023 in Peter Rennie v State of Victoria S ECI 2022 04029, 247.28-31.
It is no doubt preferable to state a matter upon which a party bears the onus as a positive statement of what that party has established. On this occasion the reasons use a double negative – her Honour was not persuaded that it was unreasonable. However, given that the reasons elsewhere correctly state the relevant onus of proof I am not persuaded that this double negative, read in isolation, is anything other than an unfortunate grammatical or semantic error. It is not in itself demonstrative of an error of approach. The lack of weight placed by her Honour upon the last 13-week period in my view is a consequence of her conclusion that no further injury was established by the second claim, and not to any reversal of onus of proof. Her detailed consideration of the earlier period of time and the steps relied on by the defendant to show that its management action was reasonable clearly demonstrate her Honour correctly understood the defendant’s onus. In the context of otherwise detailed and carefully reasoned conclusions given in an extremely busy jurisdiction, it would be overzealous to ascribe this sentence as demonstrating legal error.
Grounds 4 and 5 are not made out.
I will hear the parties as to the form of orders.
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