Shrestha v William Inglis & Son Ltd
[2024] NSWPIC 550
•3 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Shrestha v William Inglis & Son Ltd [2024] NSWPIC 550 |
| APPLICANT: | Nitesh Kumar Shrestha |
| RESPONDENT: | William Inglis & Son Ltd |
| MEMBER: | Michael Wright |
| DATE OF DECISION: | 3 October 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; section 11A defence; claim for weekly benefits and medical expenses; factual issues considered; Held – respondent has not discharged its onus; award for applicant. |
| DETERMINATIONS MADE: | The Commission determines: 1. The respondent has not discharged its onus in respect of its defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act). 2. The applicant’s psychological injury, deemed to have happened on 28 March 2023, was not wholly or predominantly caused by reasonable action taken by the respondent pursuant to 3. The applicant has had since 28 March 2023, and continues to have, no current capacity for work. 4. Pre-injury average weekly earnings (PIAWE) is as follows: (a) 28 March 2023 - $1894.29 (b) 1 April 2023 - $1970 (c) 1 October 2023 - $2020 (d) 1 April 2024 - $2060 (e) 1 October 2024 and thereafter – as indexed 5. Respondent is to pay the applicant weekly benefits, pursuant to ss 36 and 37 of the 1987 Act: (a) 28.3.23 – 31.3.23 $1799.58 (s 36) (b) 1.4.23 – 26.9.23 $1871.50 (s 36) (c) 27.9.23 – 30.9.23 $1,576 (s 37) (d) 1.10.23 – 31.3.24 $1616 (s 37) (e) 1.4.24 – 30.9.24 $1648 (s 37) (f) 1.10.24 and continuing – as indexed (s 37) 6. General order as to s 60 expenses. |
STATEMENT OF REASONS
BACKGROUND
In an Application to Resolve a Dispute (ARD), Nitesh Kumar Shrestha (the applicant) claimed weekly compensation and past medical expenses in respect of psychological injury deemed to have happened on 28 March 2023 in the course of his employment with William Inglis & Son Ltd (the respondent). The respondent relied upon a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act) in respect of discipline, as well as disputing capacity for work.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (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.
At the conciliation/arbitration of this matter on 29 August 2024, the applicant was represented by Mr T Hickey, of counsel, instructed by Ms Panju, solicitor, and the respondent by
Ms Goodman, instructed by Ms Zeng, solicitor.
EVIDENCE
Documentary evidence
The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute and attached documents, and
(b) Reply and attached documents,
(c) Applications to admit late documents dated 27 June 2024 and 23 August 2024, and attached documents.
Oral evidence
There was no oral evidence.
Statements
Mr Nitesh Shrestha
The applicant provided statements dated 10 April 2024 and 18 June 2024.
In his statement dated 10 April 2024 the applicant said that he had been employed by the respondent as a head chef on a full-time basis. He stated that his role as a head chef involved responsibility for menu creation as well as management of 8 to 9 chefs and 3 to 4 kitchen hands. He said that he was also required to manage all rostering and report to an executive chef.
The applicant stated that prior to the events that are the subject of these proceedings, he had never had any performance related issues.
He said that he had commenced with the respondent on 11 January 2022.
The applicant said that about six months after he commenced with the respondent an apprentice chef named Aiden Phousigan commenced work with the respondent. The applicant stated that he was the one who brought Aiden from the Bankstown Sports Club to work with the applicant at the respondent. The applicant stated that Aiden came with a good attitude and he was a good listener.
The applicant stated that Aiden’s attitude changed when he started dating a waitress who was also employed by the respondent. Other people started making complaints about Aiden and the applicant was approached with those complaints. The applicant said that Aiden’s work performance changed and he stopped listening and was no longer as enthusiastic as he once was. The applicant stated that when he raised the complaints with Aiden, there was no change in his attitude or performance.
The applicant said that on one occasion he caught Aiden behaving inappropriately and kissing his girlfriend during work hours. The applicant stated this was inappropriate and highly unprofessional. He said that he raised this issue with Manoj, the executive chef, and Belinda, the general manager, but he thought this was not regarded as a serious issue. He said that Manoj suggested that the applicant transfer Aiden to a different kitchen, the banquet kitchen, which the applicant did. The applicant said that he was directed by Manoj not to tell Aiden that he was being transferred out of the applicant’s kitchen, but to stop including him in the roster.
The applicant stated that when Aiden found out about the transfer, he was quite upset and angry.
The applicant said that after Aiden was transferred, the applicant never saw Aiden on work shifts, as Aiden was in a completely different section and area.
The applicant stated that after Aiden was transferred, he never heard from Aiden, even outside of work, and they never spoke.
The applicant stated that on 17 March 2023, he was performing his usual duties, and the kitchen was busy as usual. He said that was taken to one side by the executive chef, Manoj, and by the general manager, Belinda. He said that he was given an immediate notice of suspension regarding an allegation of harassment of a colleague in a different department. He stated that the notice informed he was suspended for verbally and physically threatening a junior employee and consistent bullying of team in the kitchen and operations.
The applicant said he was in complete shock when he received the notice of an allegation of harassment towards Aiden, as he had never run into him or spoken to him since his transfer. The applicant said that he felt that he had been treated unfairly with false allegations made against him. The applicant said that he felt demoralised, questioned himself, and had used alcohol to cope. He also referred to the other effects on his feelings and life. Treatment was provided by Dr Khanom, general practitioner, Dr Cocker, psychiatrist, and Ms Parasher, counsellor.
In his statement dated 18 June 2024, the applicant said that he attended a meeting on
23 March 2024, arranged by his employer. He said that as well as his support person, present were Belinda, the general manager, and a person from human resources.The applicant stated that effectively he was told to admit the allegations. He said he did not want to do so, and he denied all allegations made against him. He said he was told to respond to the allegations in writing within 24 hours by email, which he did.
The applicant said that on 28 March 2023 he was issued with a warning letter and told to return to work the next day on performance improvement plan. He said he found this to be ridiculous and he could not understand why, as his performance had always been exceptional and he had never had complaints. He said that he became distressed and he psychologically deteriorated and his mental health has not been the same since. He said that he remains highly distressed.
Ms Belinda Thomson
Ms Belinda Thomson provided a statement dated 18 September 2023.
Ms Thomson stated she was currently employed by the respondent for the past six years. She said that she is employed as general manager, but she was not the general manager at the time that the applicant was first employed.
Ms Thomson stated that the applicant was initially employed by the respondent as a Sous Chef, and he had then been promoted to Chef De-cuisine. She said the applicant reported directly to the Executive Chef, Manoj Kumar.
Ms Thomson stated:
“It is not on record that he was performance managed. After the previous incident with the former general manager there were apparently discussions held with Nick. I have no notes so I am unable to comment as to the details of the incident.
It was a prior allegation of bullying and harassment from a former chef against Nick. I only know about this as have the previous general manager's inbox emails whereby there were accusation against Nick of bullying and harassment towards another staff member.
The allegations to my knowledge were given to the executive chef at the time to action. It was prior to my appointment and as there are no notes on record I am not sure of outcome.
I had received previous written complaints against Nick prior to this current complaint. He had an altercation with one of our stewards, who walked out of the workplace.
The four cases prior there were witnesses. These former complaints were not as serious as his recent altercation with an apprentice chef. The former complaints were more along the lines of his behaviour. I spoke to him about treating people with respect, advised him of our expectations, and that everybody is equal. This obviously did not sink in.”
Ms Thomson stated that:
“The incident occurred on the Thursday, he was stood down in the interim and then we requested he attend a meeting on Tuesday, 23 March 2023…
…We followed all procedures. I also engaged the Head of Talent and Culture for Accor, Christianne Neim and had advise so am very confident we covered all aspects by following the correct procedures in regard to the complaints and our actions.
The outcome of the internal investigation was the allegations against Nick were substantiated. The purpose of the meeting was to discuss the findings with Nick and to allow him an opportunity to response.
We discussed the allegations. He was provided with an opportunity to respond within the meeting. He outright denied the allegations, despite them being substantiated. As well as the reported and witnessed previous 4 occasions of him.
On 23 March 2023 during the meeting was when he denied the allegations…He definitely had a support person. We encouraged him to bring a support person.
He was found to be in breach of the hotel's code of conduct policy on the grounds of decency and respect for fellow colleagues. It was found in addition to the breach of the hotels code of conduct, he was in breach of the hotel's discrimination and harassment within the workplace policy.
On 28 March 2023 Nick was issued with a first and final warning. He was advised of his return-to-work date as being, Wednesday, 29 March 2023. We also advised him he would be placed on a performance plan, issued by the executive chef and myself, inclusive of opportunities for additional training and support for him.”
Other relevant documents
In an undated letter to the applicant, signed by Ms Thomson and headed “Notice of Suspension”, it was stated:
“On 17 March we met to discuss the allegations against you and explained that you will be suspended with pay while we complete our investigation on recent allegations of harassment and bullying.
The reasons for suspending your employment with pay are:
·Verbally and physically threatening junior employee
·Consistent bullying of team in kitchen and operations
We wish to reiterate that your suspension is not an indication that we have made a decision about the outcome of the investigation. We will not keep you suspended for longer than is necessary for us to carry out the investigation and decide on action to be taken, if appropriate. We can lift the suspension at any time…”
A note of a meeting dated 23 March 2023 recorded attendance by Ms Thomson (referred to as BT), the applicant (referred to as NS and Nick) and his support person, and Ms Kylie Paul (referred to as KP), Talent and Culture executive of the respondent. The meeting purpose was described as “Investigation Discussion, regarding multiple allegations of inappropriate conduct & behavior of Nick Shrestha whilst performing CDP duties over the period December 2022 thru March 2023”.
It was noted among things that the applicant said that he appreciated the opportunity to do his work and have the support of Belinda.
This document also recorded that:
“NS:…Regarding Aidan, I believed in his potential, I bought him to WI as an apprentice because he's a good guy. So, it's hard to believe the claims are coming from him, and it's really disappointing and stressful for me and my family…
BT: Nick, I can read you the allegation and we can discuss this if you like?...
… BT: Why do you think Aidan would make this up?
NS: I don't know, you'll need to ask him about that
BT: outside of Aidan's complaint, there have been other complaints bought up about you of a similar nature. One of these is before my time, so did David ever bring this up with you?
NS: this is all new, nobody ever bought this up with me. This is the first time I'm hearing of it
BT: as you know, we've had discussions with Manoj about a few things in the past. So, it's more around things like swearing, which you've definitely improved on. We know Kitchens can be a high stress area, so I just wanted to bring these up today so it's all documented…
…BT: the first complaint received was on 10th May 2022 and the others were received on 15th December 2022 & 17th December 2022 and the final one last Tuesday 14th March 2023…
…NS:…Can I ask for the 4 complaints to be read because nobody has actually gone through these?
BT: read through all 4 emails/complaints. Nick, what is your response to these?
NS: I'd like to explain the incident with Aidan. I can't even remember yelling about banning anyone from the kitchen. I didn't come to work with a helmet on when people would throw coffee cups at each other when if first started here. I want a Chef environment, and don't agree with the allegations, particularly from Aidan. I don't accept the allegations. Nobody should have to go through this, it shouldn't happen to anyone.
KP: Nick just so we are clear, in regards to the 4 allegations Belinda has just read out to you, what is your response to each of these? Do you have any further information you'd like to offer in response, or are you saying that you deny all of the allegations put forward?
NS: I didn't do it, so no, I'm denying all of them.
KP: again, Nick so we are clear, you are denying all 4 allegations?
NS: that's right.
KP: on that note I think we can wrap up today's meeting unless you have anything else to say.
NS: No
BT: ok, so moving forward, we'll pass this on to the Regional team and they will review all of the information and come back to us with an outcome. It usually takes about 48hrs for this, so given there is a weekend coming up, it will most likely be Monday or Tuesday at the latest that we will meet again…”
A letter 28 March 2023 signed by Ms Thomson, addressed to the applicant, was headed “Written Warning”. It relevantly stated:
“We refer to our letter to you dated 17 March 2023 and our meeting with you on 23rd March 2023, regarding allegations about your code of conduct within the Restaurant kitchen department of The William Inglis Hotel.
As you know, in summary, the investigation found substantiated that you breached the hotels code of conduct policy on the grounds of decency and respect for your fellow colleagues. This was reported and witnessed on 4 occasions.
These work practices are inconsistent with the Hotel's obligations as an employer and may have led to claims of harassment and bullying. These practices also breach the Hotel's policies including the Code of Conduct and Discrimination and Harassment in the workplace.
During our meeting on 23rd March 2023, you were given an opportunity to respond to the abovementioned findings as well as to provide any information you considered relevant to the decision about whether to take disciplinary action against you up to and including the termination of your employment. In response, you denied allegation against you.
After careful consideration of the investigation findings, your response, and the mitigating circumstances outlined above, the Hotel has decided to issue you with this written warning for a breach in our hotels Code of Conduct policy…”
Attached to the ARD was an email dated 25 March 2023 from the applicant to Ms Thomson. It stated in part:
“Thank you very much for your time on Thursday. I cannot thank you enough for the comfort zone you both created for me in an uncomfortable situation as such. I was very stressed not because I was wrong but it was something I never dreamt of and something I would never want to wake up with. To my dismay, it was such an unfair harsh reality to face for me to get escorted out of my workplace a like a criminal with false accusations and strings of allegations from a place I call my second home as a have mentioned during the meet. I am very thankful for easing the situation for me and at the same time I strongly refuse the allegations against me…”
The applicant continued in that email with a discussion of the complaints that had been made against him.
The respondent also provided copies of its policies, being its Code of Conduct; and its Discrimination, Harassment, Sexual Harassment, Bullying and Victimisation Policy, and also its Grievance Escalation Process.
There were also other witnesses’ statements attached to the ARD which in my view were in the nature of testimonials and not probative of the issues in dispute.
Dr Nagesh
Dr Nagesh, psychiatrist, provided a report to the applicant’s solicitors dated 16 April 2024.
Dr Nagesh took a history that the applicant
“…alleged he was suspended last year from work with allegations that he has bullied a junior colleague. He was suspended on 19 March 2023. Mr Shrestha states that the junior colleague was an apprentice and Mr Shrestha was the one who brought him from Bankstown Bowling Club. When the allegations of bullying were made against him, he and Mr Aiden, the junior colleague were not even working together. Mr Aiden was moved to another department six months earlier. The allegations of bullying came a as a shock to him. He was not given an opportunity to explain himself. He was not allowed even to collect his belongings and he was told to leave the workplace immediately. At the time of this incident, his wife was pregnant, he was the sole breadwinner for the family and he was distraught. "I did not know what to do." His whole world came collapsing down…”
Dr Nagesh was of the opinion that the applicant
“…while employed with The William Inglis Hotel, his employment was abruptly terminated and he was told to leave the workplace based on the allegation that he had bullied a junior colleague. Mr Shrestha vehemently denies this allegation. He alleged that he was not given an opportunity to explain his side of the story. He and the alleged victim of the bullying have not worked together for six months. The allegations of bullying came six months after he was away from the alleged victim. In the context of his employment being terminated abruptly without any notice, warning and not being given an opportunity to explain himself, he has developed the following symptoms which include depressed mood, anxiety, insomnia, loss of appetite, loss of weight, lack of energy and motivation, diminished ability to concentrate, and feelings of worthlessness. Based on his alleged symptoms, I am of the opinion Mr Shrestha has suffered from an episode of major depressive disorder of moderate degree with anxious distress…”
Dr Nagesh was of the opinion that the applicant remained symptomatic and is totally incapacitated for work as a result of the injury suffered at work. He was of the view that employment was the main contributing factor to the applicant’s psychology injury.
Dr Anwar
Dr Anwar, psychiatrist, provided a report to the respondent’s insurer dated 19 January 2024.
Dr Anwar noted a history that the applicant:
“…reported that a junior employee, Aiden, made bullying allegations against him because he attempted to manage Aiden's unprofessional workplace behavior. He reported that he helped Aiden in his previous employment at Bankstown Sports Club to start his apprenticeship. He trusted Aiden and treated him well. Aiden joined the current employer around a year ago. He alleged that Aiden was wasting time and having an affair at workplace. He tried to manage Aiden and he reported the incident to the general manager and head chef. Later, Aiden made allegations of bullying against him.
The allegations were made against him on 17 March 2023. After the allegations, he was suspended from employment for investigations made by Aiden. He met the management around early April 2023. After the meeting, he was informed that he could return to work; however, he would be given a formal warning because of his work colleagues making allegations of bullying against him.
He started experiencing psychological symptoms after he was informed about the allegations, and he was suspended from work on 17 March 2023. The psychological symptoms aggravated gradually after suspension from work. The investigation process into the bullying allegation and management informing him in April 2023 that he would be given formal warning letter after returning to work further aggravated the psychological symptoms. he could not return to work due to the aggravation of psychological symptoms…”
Dr Anwar diagnosed adjustment disorder with mixed anxiety symptoms and depressed mood.
Dr Anwar believed that
“…there was causal connection between the workplace stressors/incidents (mentioned in the section ‘Presenting complaints’) and the psychological injury sustained (AD). I believe work to be the main contributing factor for initiation and aggravation of psychological symptoms to constitute a diagnosable psychiatric disorder (AD). I believe Nitesh's psychiatric injury was predominantly a result of the disciplinary process after a work colleague made allegations against him.”
Dr Anwar was of the opinion that the applicant lacked capacity for work in any employment for a period of three months, and future work and restrictions can be assessed by the applicant’s psychiatrist after three months.
Dr Cocker
Dr Cocker, consultant psychiatrist, provided a number of reports, including a report dated
14 September 2023 which addressed a number of questions of a medico legal nature, although the report did not refer to an addressee.In his report of 14 September 2023, Dr Cocker noted his treatment consultations with the applicant on 6 July 2023 and 31 August 2023.
Dr Cocker diagnosed major depressive disorder. He stated:
“Mr Shrestha describes a more acute onset of his symptoms of a major depressive disorder. He recounts having a bullying allegation made against him from an apprentice chef he was mentoring, after he informally counselled the apprentice related to inappropriate displays of affection in the workplace. He reports that he was unexpectedly suspended for 10 days and escorted from the premises, which he describes as humiliating. Mr Shrestha reports that this incident has greatly affected his confidence in his abilities as a chef and his abilities in managing a kitchen. He has developed feelings of hopelessness relating to his future ability to work as a chef…
…Mr Shrestha currently has a low level of function as a result of his major depressive disorder. He is not currently able to work…
… Mr Shrestha has no current capacity to engage in any employment…
… Recovery from major depressive disorder is highly variable and difficult to predict. It is influenced by a number of factors, including response to various treatments and comorbidities. I would anticipate that Mr Shrestha may begin return to work program in 6-12 months, although this could this could occur earlier if he responds well to treatment…
…I believe there is good prognosis for Mr Shrestha in making a recovery and returning to work and social roles. A number of factors support this including his lack of previous psychiatric history and the absence of any personality disorder. It is concerning that he hasn't responded to first-line treatments (an anti-depressant medications and psychotherapy), however about half of patients do not. In saying this, it is impossible to accurately predict a prognosis and this will require ongoing assessment over time…”
Dr Cocker was of the opinion that the diagnosed condition was consistent with the history given.
Ms Parasher
Ms Parasher, counsellor, provided a report dated 5 October 2023. She noted a history not inconsistent with the applicant’s statements, and recorded symptoms described as generalised anxiety and adjustment disorder.
REASONS
There was no dispute as to injury. Pre-injury average weekly earnings (PIAWE) were agreed as per the respondent’s schedule, contained with the application to admit late documents dated 23 August 2024.
The issue in dispute at the hearing was the respondent’s defence pursuant to s 11A, in respect of discipline, as well as capacity for work. The respondent has the onus of proof in relation to its s 11A defence.
The respondent in submissions pointed to the context of the applicant being stood down on 17 March 2023, including noting that Ms Thomson in her statement said that she had spoken to the applicant previously about treating the applicant with respect.
It is convenient to consider this aspect of the context described by the respondent.
Ms Thomson in her statement said at paragraphs 17 and 18:“I had received previous written complaints against Nick prior to this current complaint. He had an altercation with one of our stewards, who walked out of the workplace.
The four cases prior there were witnesses. These former complaints were not as serious as his recent altercation with an apprentice chef. The former complaints were more along the lines of his behaviour. I spoke to him about treating people with respect, advised him of our expectations, and that everybody is equal. This obviously did not sink in.”
There are a number of difficulties with this evidence.
One of those difficulties is the lack of supporting evidence for the assertions contained within the statement of Ms Thomson, which will be discussed below, other than the meeting note and letters summarised above. This may or may not necessarily be fatal for the evidence of Ms Thomson, if there were no other difficulties for the respondent with the evidence. This was not the case, as will be seen below.
It is unclear from paragraph 17 of Ms Thomson’s statement as to whether the “previous written complaints” to which she referred were the complaints noted at paragraph 18, or some other “previous” complaints. There was no evidence before me of the previous written complaints, whether they were “the four cases” of paragraph 18, or some other complaints.
The altercation with a steward was not identified either as a previous written complaint, nor as one of the four cases, nor was context provided in that instance.
There was no identification of the witnesses in the four cases.
The nature and context of the behaviour in question was not explained.
Ms Thomson did not say when, and in relation to what complaint or complaints, she spoke to the applicant.
Indeed, in my view it was an implication of these paragraphs that Ms Thomson had spoken to the applicant at some time before 17 March 2023 about treating people with respect. The final sentence, “this obviously did not sink in”, implies a continuation of this behaviour at a time prior to 17 March 2023. There may be a weaker contention that this treatment with respect was not learnt in the meeting of 23 March 2023 or at some later time. This is a weaker contention which I do not accept in the context of paragraph 18.
The implication of prior discussions before 17 March 2023 is not borne out by the evidence. The meeting note outlined above demonstrated that the applicant said that he had never been told about any prior complaints of a similar nature. The meeting note did not record that the applicant was challenged on that point. The meeting note did refer to prior discussions with Manoj, “around things like swearing which you’ve definitely improved on”. The meeting note did not state whether prior discussions with Manoj involved the applicant.
Ms Thomson’s statement did not challenge the applicant, other than asserting that the allegations were substantiated, without providing evidence, or explaining which allegations were substantiated, or whether the prior complaints regarding behaviour were part of the allegations said to be “substantiated”.
The entirety of paragraph 18 points to the “prior discussions” as being in relation to the four written complaints, and yet the evidence available to me points to the four written complaints not being raised with the applicant until the meeting of 23 March 2023. I prefer the evidence of the applicant on this point. He was specific in that meeting and there is no evidence before me that he was challenged on that point, and there was no persuasive evidence to the contrary, with the vague evidence of Ms Thomson being the only evidence in this regard.
I do not accept the respondent’s submissions that these “prior discussions” form part of the context of the respondent’s actions in suspending the applicant from his employment. In my view, given the issues discussed above, the issues in relation to paragraphs 17 and 18 result in the statement of Ms Thomson being less than persuasive in this regard. Rather than considering possible reasons, it is only necessary to observe that by not accepting Ms Thomson’s statement in this regard, I have cause to place less weight on the statement of Ms Thomson, where it is contrary to the applicant.
I accept the applicant’s denials that the multiple matters referred to in the notice of suspension and the meeting of 23 March 2023 had been previously raised with him.
The respondent pointed to a number of matters which may indicate the reasonableness of its actions. These include the notice of suspension of 17 March 2023, in which it was stated that a decision as to an outcome had not been made; the speed of investigation and notice of outcome; the participation of the applicant in the meeting of 23 March 2023, together with his support person; the email of the applicant of 25 March 2023, in which the applicant referred to his comfort zone; and the letter of 28 March 2023, which did not terminate employment and instead provided for his return to work on immediately with performance management.
I do not accept that these matters support an objective finding reasonableness in all the circumstances. It is not a question of the respondent’s own belief as to reasonableness[1], as Ms Thomson indicated in her evidence, or as referred to in the circumstances in the preceding paragraph.
[1] Jeffery v Linitpal Pty Ltd [2008] NSWCA 138.
It is necessary to consider all the circumstances of this matter in considering whether the respondent’s actions were reasonable.[2]
[2] Northern NSW Local health Network v Heggie [2013] NSWCA 255.
The notice of suspension and the meeting of 23 March 2023 raised multiple matters for which there was no persuasive evidence of such matters having been raised with the applicant prior to 17 March 2023, other than an incident said to have happened on
17 March 2023, which was not explained or detailed by Ms Thomson. I have accepted the applicant’s evidence that these matters had not been raised with him prior to 17 March 2023.From the statement of Ms Thomson, it seems that an internal investigation had happened prior to the meeting of 23 March 2023, and that findings had been made and the allegations substantiated prior to that meeting. No explanation or details were provided of that internal investigation. There was no evidence from the respondent as to how the applicant was informed of the meeting of 23 March 2023, and what was communicated to the applicant as to the purpose of that meeting. There appeared to me to be an acceptance by the respondent of something said by Aiden, but the evidence does not disclose what he said, nor why the respondent chose to accept his allegation, prior to the meeting with the applicant.
The applicant said that in that meeting he felt that he was effectively told to admit the allegations. This is not inconsistent with the purpose of the meeting as stated by
Ms Thomson.Notwithstanding that view of the meeting, the applicant in his subsequent email of
25 March 2023 seemed to me to have the view that the outcome was still being considered. Although there was a conciliatory tone in that email, the applicant maintained his denial of the allegations.The letter of 28 March 2023 was a confirmation of the outcome of an investigation which had already concluded before the meeting of 23 March 2023. In my view, the provision in that letter for a return to work was in any event a disciplinary outcome, and it should be seen in the light of that adverse outcome following that investigation.
In my opinion, the respondent has not discharged its onus. The evidence was lacking or not persuasive as to the nature and details of the allegations made and the process of investigation. The respondent has also not established that it acted with fairness to the applicant in the course of the process of investigating, considering and deciding those allegations.
I find that the respondent has not discharged its onus and has not established a defence pursuant to s 11A of the 1987 Act.
In relation to capacity, the evidence before me is that the applicant has no capacity for work. Dr Nagesh was of the opinion that the applicant has no capacity for work. Dr Anwar was of the opinion that the applicant had no capacity for a further three months, but future employment could be assessed by a treating psychiatrist after three months, with a promising outcome and the response from treatment determining prognosis. Dr Anwar did not say the applicant had some capacity for work at that time. I prefer the opinion of
Dr Nagesh, which is any event was not contradicted by Dr Anwar.I find that the applicant had, and has, at all times for the period of the current claim, no capacity to perform his pre-injury duties. The applicant has not returned to work since
28 March 2023. I find that the applicant had and has no capacity to perform suitable duties, and accordingly he had and has no capacity for work.There will be an award in favour of the applicant for weekly compensation, and a general order as to s 60 expenses.
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