Smyth v Charles Sturt University
[2007] NSWWCCPD 184
•23 August 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Smyth v Charles Sturt University [2007] NSWWCCPD 184
APPELLANT: Thomas Raymond Smyth
RESPONDENT: Charles Sturt University
INSURER:Allianz Australia Workers Compensation
FILE NUMBER: WCC16434-06
DATE OF ARBITRATOR’S DECISION: 16 February 2007
DATE OF APPEAL DECISION: 23 August 2007
SUBJECT MATTER OF DECISION: Section 11A of the Workers Compensation Act 1987; error of fact; whether re-allocation of duties was a response to performance appraisal/management.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:On the papers
REPRESENTATION: Appellant: Maurice Blackburn Cashman
Respondent: Vardanega Roberts
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 16 February 2007 is revoked and the matter is remitted to another Arbitrator for determination, in accordance with these reasons, of the Appellant Worker’s entitlement, if any, to payment of compensation.
The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.
The costs of the proceedings before the first Arbitrator are to follow the event when the matter is determined.
BACKGROUND
Dr Thomas Raymond Smyth, the Appellant Worker, was born on 22 January 1942. He commenced employment as a Lecturer in Psychology at Charles Sturt University (‘the University’), the Respondent Employer, on 15 August 1994.
Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’) was the University’s insurer at all relevant times.
On 26 March 2004 Dr Smyth attended a meeting with his University supervisor, Associate Professor Michael Collingridge, to discuss issues concerning his work performance and the University’s expectations of its academic staff. On 13 April 2004 Dr Smyth visited his general practitioner, Dr Robert Cox and was diagnosed as suffering from stress. On 11 May 2004 Associate Professor Collingridge wrote to Dr Smyth as a follow up to the March meeting, providing a set of the University’s minimum requirements in relation to his teaching and research duties.
A meeting was held on 6 December 2005 to further discuss Dr Smyth’s work performance. In attendance were three of Dr Smyth’s supervisors, a representative from the University’s Human Resources section, Dr Smyth’s union representative and Dr Smyth. A summary of this meeting was sent to Dr Smyth on 14 December 2005. This correspondence set out the areas of performance, which were viewed as unsatisfactory, the process for managing these issues in the future and a timeframe in which Dr Smyth was to respond.
On 16 December 2005 the Deputy Vice-Chancellor of the University advised Dr Smyth that his application for Special Studies Program leave (sabbatical leave), for the purpose of writing a book and carrying out research, from 25 January 2006 to 25 July 2006, had been deferred until there was a resolution of the issues raised regarding his work performance.
On 21 December 2005 Dr Smyth submitted to the University his written response to the University’s correspondence dated 14 December 2005.
Dr Smyth was informed by email on 18 January 2006 that he had been re-allocated different teaching subjects for the first semester of 2006, because another University lecturer had agreed to teach Dr Smyth’s usual subjects during his ‘anticipated’ sabbatical leave.
On 6 February 2006 Dr Smyth submitted to the University a medical certificate issued by Dr Cox stating that he was suffering from an adjustment disorder and major depression, and indicated that the date of illness was “about April 2004.” He has not returned to work since.
On 15 February 2006 Dr Smyth lodged a workers compensation claim with the University. Allianz declined liability on 26 March 2006 on the basis of a factual investigation by Protocol Investigations, dated 10 March 2006, which found that “if the worker had a diagnostic psychiatric condition there would be evidence to suggest that the University acted reasonably in the performance reviews with Mr Smyth on 26 March 2004 and 14 December 2005” and that Dr Smyth’s claimed ‘injury’, based on Dr Synnott’s report dated 24 February 2006, did not constitute a psychological disorder within section 11A of the Workers Compensation Act 1987 (‘the 1987 Act’). Dr Synnott is a Consultant Psychiatrist qualified by the Insurer.
On 24 July 2006 Dr Smyth’s employment with the University was terminated.
An Application to Resolve a Dispute was registered with the Commission on 19 October 2006 seeking weekly compensation from 7 February 2006 and continuing, and payment of hospital and medical expenses pursuant to section 60 of the 1987 Act.
In its Reply filed on 9 November 2006 the University contended that:
·Dr Smyth’s employment was not a substantial contributing factor to the injury;
·Dr Smyth was not incapacitated as alleged;
·the weekly wage rate and earnings are disputed;
·the psychological injury claimed was caused by the reasonable action taken or proposed to be taken by the University, and
·the section 60 expenses claimed were not incurred as a result of the injury arising out of or in the course of employment with the University.
The dispute was not resolved at the teleconference held on 8 December 2006, and was listed for a conciliation/arbitration hearing before a Commission Arbitrator on 31 January 2007. The Arbitrator made an award on 16 February 2007 in favour of the University on the issue of weekly compensation and also in relation to the claim for medical expenses pursuant to section 60 of the 1987 Act.
Dr Smyth lodged with the Commission an ‘Application to Appeal Against Decision of Arbitrator’ on 9 March 2007.
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
It is not disputed that the amount in issue is in excess of $5,000.00 and that the total amount of compensation claimed comprises the whole of the amount in issue in the appeal, therefore both section 352(2)(a) and (b) of the 1998 Act are satisfied.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
PRELIMINARY MATTER
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties submit that the matter is suitable for determination ‘on the papers’. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions of the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The Arbitrator made the following conclusions in his ‘Statement of Reasons for Decision’ (‘Reasons’) dated 16 February 2007 at paragraph 97:
“In summary, the Applicant:
(a)Suffers from a “psychological or psychiatric disorder” in terms of Section 11A(3).
(b)The injury arises out of or in the course of the Applicant’s employment.
(c)It was a [sic] substantially contributed to by that employment (Section 9A).
(d)It was wholly or predominantly caused by reasonable action taken by the Applicant’s employment with respect to performance appraisal, discipline or the provision of employment benefits, to paraphrase the appropriate portion of Section 11A.”
The ‘Certificate of Determination’, dated 16 February 2007, records the Arbitrator’s orders as follows:
“1.Award for the Respondent with respect to the Applicant’s claim for weekly benefits.
3.Award for the Respondent with respect to the Applicant’s claim for reasonable medical expenses pursuant to Section 60 of the Act.
4.No Order as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator erred:
1.in his application of section 11A of the 1987 Act’, and in particular
2.in finding that “the re-allocation of duties fell within the category of performance appraisal/management”.
The University submits that the Arbitrator did not err as claimed.
APPEAL TO A PRESIDENTIAL MEMBER
A Presidential member has a specific and limited role in the review of a decision of an Arbitrator. The review is not a rehearing. The Presidential member is not dealing with the matter de novo and is not arriving at fresh decision based on all of the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616).
The powers of a Presidential member to revoke the decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, or to remit to the same Arbitrator or a different Arbitrator, for determination in accordance with a decision of or directions by, a Presidential member, are exercisable only where it is demonstrated that the decision is affected by some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172; Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). The general principle was highlighted by Gleeson CJ in Swain v Waverley Municipal Council (2005) 79 ALJR 249; 213 ALR 249 (Swain). His Honour said: “The question for an appellate court is whether it was reasonably open to the jury [sic] to make an assessment unfavourable to the respondent, not whether the appellate court agrees with it.” Moreover, the position must be such that but for the error, a different decision would have been made in its place (YG & GG v Minister for Community Services [2002] NSWCA 247).
SUBMISSIONS
Injury
Dr Smyth submits that the Arbitrator found that he suffered injury arising out of or in the course of his employment as a result of the withdrawal of the sabbatical leave on 16 December 2005 and the re-allocation of teaching duties on 18 January 2006. In agreeing with Dr Smyth that the significant event was the re-allocation of teaching duties (paragraph 87 of Reasons), Dr Smyth submits that the Arbitrator accepted his submission that the injury occurred on 18 January 2006 (paragraph 33 of Reasons).
The University submits in its ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ (‘Opposition’) that it is “clear from the balance of paragraph 33 and also from paragraphs 13, 23, 28, 29 and 35-40 inclusive that the injury was multifactorial” and cites the example of the meeting with Professor Collingridge, Associate Professor Thompson and Professor Bradley on 26 March 2004, as one of the factors creating Dr Smyth’s psychiatric condition. It was not disputed by Dr Smyth that section 11A applied to this meeting (at paragraph 28 of the Reasons) and the University submits that equally, there is no dispute that the letter of 14 December 2005, which is “inexorably linked” to the re-allocation of duties, was an action with regard to both performance appraisal and discipline.
The University further submits that the material cited by the Arbitrator in paragraph 33 of his Reasons supporting the view that 18 January 2006 is the appropriate date of the injury, demonstrates equally that the actions that caused Dr Smyth’s psychiatric injury were occurring in the second half of 2005. Furthermore the University submits that in his submissions on appeal, Dr Smyth has conceded that section 11A applies to the injuries sustained by him as a result of the withdrawal of sabbatical leave.
Section 11A of the 1987 Act
Dr Smyth states that the Arbitrator came to the view that both causative actions (removal of sabbatical leave and re-allocation of teaching duties) were caught by section 11A (paragraph 64 of Reasons). It is submitted that the question of what is “performance appraisal” has been considered by Geraghty J in Irwin v Director General of School Education NSWCC, No. 14068/97 (18 June 1998 unreported) (‘Irwin’) where his Honour said:
“Performance appraisal is more like a limited discreet process, with a recognised procedure to which the parties move in order to establish an employee’s efficiency and performance.”
In Bottle v Wieland Consumables Pty Limited (1999) 19 NSWCCR 135 (‘Bottle’) Neilson J took a narrower view of ‘performance appraisal’ at paragraph 30:
“ … leads me to the view that (performance appraisal) is putting a value or putting an estimated value (that is monetary value) upon the work being performed by the employee.”
Re-allocation of duties
Dr Smyth does not contest the Arbitrator’s finding to the extent that the withdrawal of the sabbatical leave was a result of what occurred in the performance appraisal process, but submits, “on the reading of both the narrower test in Bottle and the wider test in Irwin, it is clear that the re-allocation of subjects does not fall within either category”. Dr Smyth submits that for a finding that the re-allocation of subjects is caught by section 11A of the 1987 Act, there must be evidence that the re-allocation was caused or brought about in the performance appraisal. It is submitted that there is no evidence to support this and that the re-allocation of subjects was entirely due to a reason, not related to the performance appraisal, which he submits, was found in the email dated 18 January 2006:
“I have not assigned you PSY202 distance (which you usually teach) because at the October 28 meeting last year in Albury, Phil Chittleborough agreed to teach this subject during your anticipated CCP. Phil has been preparing for this for some time now and has been asked to make suggestions for subsequent revisions of the DE package in consultation with you and Ben Bradley.”
It is submitted that the Arbitrator therefore erred in coming to the view that, on the basis of the “relevant materials”, the action by the University in re-allocating the subjects was “caught by section 11A as the ‘whole purpose’ of those actions was to assist the university in managing/improving the Applicant’s performance” (paragraph 64 of the Reasons).
Dr Smyth argues that, following the criteria noted by the Arbitrator (at paragraph 61 of the Reasons), it is difficult to see how the re-allocation of the subjects could provide the outcomes that the University was seeking, particularly without any explanation as to how the re-allocation of subjects could achieve them. It is further submitted that there was no evidence that the subjects were re-allocated for reasons that may have benefited Dr Smyth or the University.
The Arbitrator found (paragraph 80 of the Reasons) that the sabbatical leave (and later the reallocation of teaching) were lesser alternatives to what “may have ultimately resulted in his dismissal from the University”. It is submitted that there was no evidence on which the Arbitrator could have formed this opinion, particularly in light of the specific reason provided in the email of 18 January 2006.
Dr Smyth submits, “it is an established principle that the Respondent bears the onus of proof in relation to section 11A. On this basis, as no evidence was provided germane to the issue of the allocation, s11A cannot apply” and that at the hearing of the matter, the University did not challenge Dr Smyth’s assertion that the re-allocation of subjects was not caught by section 11A of the 1987 Act.
In conclusion, Dr Smyth submits that should he be successful in establishing that section 11A of the 1987 Act cannot apply in respect to the finding of injury as a result of the re-allocation of subjects, then section 11A cannot be used to defeat the claim as Dr Smyth’s injuries have not been “wholly or predominately” caused by reasonable action by the University in respect of performance appraisal or any other category within the section.
The University submits that the Arbitrator clearly and correctly considered that the re-allocation of duties, communicated to Dr Smyth by email, resulted from and was part of the appraisal of Dr Smyth’s performance by the University. It is noted that in his Reasons the Arbitrator quoted from a letter as recent as 14 December 2005, including the following extract:
“It is the opinion of myself and your peers that as a result of your explanations and general discussion at the meeting on 6 December 2005, your performance is deemed to be unsatisfactory.”
Furthermore, it is submitted by the University that the letter of 14 December 2005 made it clear that the University had resolved to continue performance appraisal over the months following that letter:
“Whilst the guidelines state there should be a review period and then your performance should be reviewed again, it has been agreed that the university would allow you the right of reply to this letter. We will then convene another meeting to address expected improvements and outcomes for the autumn session of 2006 and beyond.”
The University submits that the Arbitrator was correct to say, as he did in paragraph 64 of his Reasons:
“I believe it is clear, if one reads the relevant materials carefully, that the whole purpose of those actions (and the Arbitrator is clearly referring, inter alia, to the re-allocation of subjects) was to assist the university in managing/improving the applicant’s performance.”
It is submitted that the University, in re-allocating duties in January 2006, was taking a step with respect to performance appraisal.
The University refers to Geraghty J in Irwin where he states:
“Performance appraisal in any work situation is a process, an established process involving various steps … it is a process in which parties are engaged, and knowingly engaged … performance appraisal is more like a limited, discreet process, with a recognized procedure through which the parties move in order to establish an employee’s efficiency and performance.”
The University submits that in this matter it had made it very clear to Dr Smyth that the parties were engaged in performance appraisal and states that the letter of 14 December 2005 confirms this. It is submitted that the Arbitrator concluded correctly that in January 2006 the University was taking measures to “establish the appellant’s efficiency and performance. The re-allocation of duties, in the context of the meetings and communications at the end of 2005, was a part of the appraisal process, as the Arbitrator found”.
The University also submits that its conduct up to and including 18 January 2006 was additionally and correctly categorised by the Arbitrator as “reasonable action taken or proposed to be taken by or on behalf of the employer with respect to discipline” (paragraph 97 of the Reasons). It submits that the Arbitrator found (at paragraph 58 of the Reasons) that the re-allocation of duties, communicated by the email of 18 January 2006 was consistent with the University’s concerns and the thrust of the letter of 14 December 2005, when the University made it clear that it was looking forward to the implementation of “expected improvement and outcomes”.
DISCUSSION AND FINDINGS
The issues in this appeal are confined to whether the Arbitrator erred in applying the provisions of section 11A of the 1987 Act and in particular, whether “the re-allocation of duties fell within the category of performance appraisal management.”
The onus of proof in terms of “reasonable action” and other matters under section 11A of the 1987 Act falls upon the Employer (see Department of Education & Training v Jeffrey Sinclair [2004] NSWWCCPD 90, per President Justice Sheahan at [23]).
The question as to whether an employer’s actions are reasonable under the section is one of fact involving an objective test: it is not a matter of law (Commissioner of Police v Minahan [2003] NSWCA 239 (‘Minahan’). In Director General, Department of Education and Training v Pembroke [2006] NSWWCCPD 182, Acting Deputy President Handley said at [26]:
“In determining whether the conduct was reasonable, all relevant factors must be taken into consideration including the rights of both employee and the employer (Aristocrat Technologies Australia Pty Ltd v Rashov [2005] NSWWCCPD 66 [‘Raskov’], at paragraph 82). If the employer can establish that its conduct was reasonable, then the employee cannot recover compensation.”
Whether the Employer’s actions were reasonable or not, depends upon the intrinsic reasonableness of its actions, taking into account relevant matters pertaining to the employee and known to the employer (Minahan); see also Abdul-Rahman v Allied Pickfords Pty Ltd [2005] NSWWCCPD 107; Pirie v Franklins Limited (2001) 22 NSWCCR 346 (‘Pirie’)). The test of reasonableness of the relevant conduct is objective. “Whether the action is reasonable should be attended in all the circumstances by a question of fairness.” (Minahan). The term “reasonable action” therefore, should be given a broad construction (Dunn v Firth [2003] NSWCA 280).
Consideration should be given to the circumstances surrounding the “action”, to the extent that what occurred before and after the “action” may be taken as a guide to its reasonableness or otherwise, but is not necessarily determinative of it (Buxton v Bi-Lo Pty Ltd (1998) 16 NSWCCR 234 at 249; Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454, at 458, and Pirie). Further, a psychological injury may arise out of a single “action” or a series of related steps in a process. Department of Education & Training v Sinclair [2005] NSWCA 465 was decided on the particular facts and circumstances of that case, where the whole or predominant cause of injury was the entirety of the disciplinary process. The whole of the process contained two specific blemishes identified by the Court of Appeal, however the Court said, in that case, what needed to be established was whether or not the whole process was reasonable, notwithstanding the blemishes. Spigelman CJ said, in these types of cases, “More often than not it will not be possible to isolate a single step.” However, he did not say or infer that it would never be possible to do so. The “whole or dominant cause” of the injury, can range from an isolated step, to a number of steps, up to an entire process, depending upon the facts and circumstances of the particular matter. Whatever the “whole or dominant cause”, in determining whether the conduct was reasonable, all relevant factors must be taken into account, including the rights of both parties (Raskov).
As previously stated, Dr Smyth does not contest the Arbitrator’s finding that the withdrawal of sabbatical leave occurred as a result of the performance appraisal. However, he submits that the re-allocation of subjects to another teacher “was entirely due to a reason which was not related to the performance appraisal”. He says, “As can be plainly seen, the uncontested evidence of the respondent is that the sole reason for the re-allocation of subjects was that another teacher had already agreed to the allocation. There was no reason related to performance.”
In Irwin, cited by both parties, Geraghty J said that performance appraisal in a work situation is a “process” involving various steps, and in which both parties are engaged. I think that there is no doubt that it is a process almost by definition, and it was certainly a process in the instant case, being described in sub-clause 2.2 of the ‘Charles Sturt University Policy on the Special Studies Program (SSP) for Academic Staff’, as a “performance management process”. As Spigelman CJ said in Sinclair, albeit in the context of quite different circumstances, more often than not it will not be possible to isolate a single step as being the whole or dominant cause of injury. It seems to me therefore, that the pertinent question is whether the re-allocation of duties to another teacher was part of that process.
Without canvassing in detail the whole of the factual situation, it is clear in summary, that Dr Smyth received approval on 19 September 2005 to participate in the Special Studies Program for the period 25 January 2006 to 25 July 2006. Later, he received a letter from Professor Chambers on behalf of the University stating that this arrangement was deferred “until there is a resolution to the current discussions being undertaken with your Head of School in relation to your performance.” Eligibility to participate in the Program was subject to satisfactory performance, as determined through the performance management process.
Dr Smyth was not required to teach for the duration of his participation in the Special Studies Program.
It is clear from the evidence that Dr Smyth was involved in a performance management process, which had begun some time before 18 January 2006, the date of injury as found by the Arbitrator. Equally, it is clear that the withdrawal of the sabbatical leave previously granted for the purposes of Dr Smyth’s participation in the Special Studies Program, was a result of his involvement in the performance management process. I agree with the Arbitrator’s observation at paragraph 57 of his Reasons, “The purpose of the withdrawal is made clear.”
The Arbitrator was correct in finding that the withdrawal of sabbatical leave was related to Dr Smyth’s performance. Indeed, Dr Smyth does not dispute this finding. He says at paragraph 9 of his submissions on appeal, “The Applicant does not contest the finding that the withdrawal of sabbatical leave was as a result of the performance appraisal.” It is clear on the evidence however, that this was by no means the whole or dominant cause of Dr Smyth’s injury, which the Arbitrator found to have occurred on 18 January 2006.
It remains to be determined whether the reallocation of subjects usually taught by Dr Smyth was part of the performance management process, and therefore caught by section 11A of the 1987 Act.
Dr Smyth maintains that the uncontested evidence is that the sole reason for the reallocation of subjects was that another teacher had already agreed to the allocation. It essence, Dr Smyth suggests that the reallocation of duties was to stand because administratively, it suited the University’s convenience.
The University submits, correctly in my view, that it had been made clear to Dr Smyth that the performance appraisal process would continue over a period of time following the letter of 14 December 2005. However, it submits further that the University, in reallocating duties in January 2006, was taking a step with respect to performance appraisal. I do not agree.
The Arbitrator made specific mention of the reallocation of duties, communicated in the email to Dr Smyth, dated 18 January 2007. He said at paragraph 58 of his Reasons, “… this reallocation, which however appears to be consistent with the University’s concerns and the thrust of the letter of 14 December 2005 when the Respondent made it clear that it was looking forward to the implementation of ‘expected improvement and outcomes’.” He further states at paragraph 64 of his Reasons, “I believe it is clear, if one reads the relevant materials carefully, that the whole purpose of those actions was to assist the University in managing/improving the Applicant’s performance.” The Arbitrator is referring here to the two critical actions, “being the withdrawal of Sabbatical Leave and the reallocation of subjects” (see paragraph 63 of the Arbitrator’s Reasons). He states at [66] that the allocation of subjects does not seem to be in any way extraordinary having regard to the Applicant’s own assessment of his capabilities and some views expressed by the University, in particular the requirement referred to in Professor Bradley’s letter of 8 December 2004 of the need for academics to “keep up to speed”. However, Professor Bradley’s letter was written well before any consideration was given to the need to defer Dr Smyth’s sabbatical leave and anything that might flow from that.
There is no evidence to support the inference drawn by the Arbitrator that the reallocation of duties was part of the management performance process. There is no doubt that the University did expect “improvement and outcomes”. Equally, there is no doubt that upon granting Dr Smyth’s sabbatical leave in the first instance, the University was required to find someone else to teach the subjects usually taught by him. However, there is no reference or indication in the evidence to indicate that reallocation of the subjects was anything more than an administrative arrangement that became necessary because Dr Smyth would not be available. When the subjects were reallocated, Dr Smyth was to proceed on leave. That is all there was to it. There was no hint of discipline or performance management involved. It was not until later that the decision was taken to cancel or at least defer the sabbatical leave. The only reason advanced at all for the continuation of the arrangement to reallocate duties is found in the email of 18 January 2006. It states, as I said at [32] above:
“I have not assigned you PSY202 distance (which you usually teach) because at the October 28 meeting last year in Albury, Phil Chittleborough agreed to teach this subject during your anticipated CCP. Phil has been preparing for this for some time now and has been asked to make suggestions for subsequent revision of the DE package in consultation with you and Ben Bradley.”
It is clear that the University had initially and for good reason, allocated the duties to someone else. It did not wish to change the arrangement subsequently, for the reasons advanced. There was no mention in the email of 18 January 2006 that the reallocation of duties had anything to do with the performance management process. Indeed, reallocation of these duties had never been suggested, nor had it ever emerged, as an issue over the entire course of the performance management discussions and process, notwithstanding all of the difficulties with which the University was confronted in dealing with Dr Smyth. The thrust of the University’s performance management action was aimed at improving Dr Smyth’s performance of his duties, not reallocating them to someone else. Moreover, there is no suggestion that Dr Smyth was incapable of teaching, as the University sought to allocate other subjects to him, in lieu of those it had reallocated.
Finally, I do not agree with the Arbitrator’s conclusion at paragraph 80 of his Reasons, “It is also clear that the sabbatical leave (and later the re-allocation of teaching) were lesser alternatives to what ‘may have ultimately resulted in his dismissal from University’.” It was the cancellation of the sabbatical leave and unsatisfactory performance that were the subject of Professor Collingridge’s statement about possible dismissal from the University. There is no mention or indeed any indication of reallocation of duties as an issue, in the Professor’s statement.
I find that the Arbitrator has erred in finding that the reallocation of duties fell within the scope of the management performance process. On the evidence, the reallocation of subjects occurred because Dr Smyth had been granted sabbatical leave of absence from the University. When he later became available by reason of performance issues, the reallocation was not reversed, for the largely administrative reasons specifically put forward by the University in the email of 18 January 2006 (being the date of injury found by the Arbitrator), and not because of any decision as to Dr Smyth’s performance.
It follows that the defence in section 11A of the 1987 Act is not available to defeat Dr Smyth’s claim, as the injury suffered is not wholly or predominantly caused by the reasonable action of the University in relation to the performance appraisal process, nor indeed, to any of the other categories in the section. The Arbitrator’s finding at paragraph 97 (d) of his Reasons is erroneous.
The Arbitrator’s findings that Mr Smyth suffers from a psychological or psychiatric disorder in terms of section 11A (3) of the 1987 Act; that the date of injury was 18 January 2006; that the injury arose out of or in the course of Dr Smyth’s employment, and that employment was a substantial contributing factor pursuant to section 9A of the 1987 Act are not appealed, and I find no reason to disturb them.
The appeal is successful.
DECISION
For the reasons set out above, the Arbitrator’s decision dated 16 February 2007 is revoked and the matter is remitted to another Arbitrator for determination, in accordance with these reasons, of Dr Smyth’s entitlement, if any, to payment of compensation.
COSTS
The Respondent Employer is to pay the Appellant Worker’s costs of this appeal.
The costs of the proceedings before the first Arbitrator are to follow the event when the matter is determined.
Gary Byron
Deputy President
23 August 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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