State of New South Wales (NSW Police Force) v Plant - [2024] NSWPICPD 11

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	State of New South Wales (NSW Police Force) v Plant [2024] NSWPICPD 11
APPELLANT:	State of New South Wales (NSW Police Force)
RESPONDENT:	John James Plant
INSURER:	Employers Mutual Limited – TMF
FILE NUMBER:	A1-W5632/22
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	19 February 2024
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination is confirmed. 2. The appellant is to pay the respondent’s costs.
CATCHWORDS:	WORKERS COMPENSATION – Section 11A of the Workers Compensation Act 1987 – reasonableness of actions of employer with respect to discipline/transfer – onus of proof – absence of statement evidence and policies before the Commission determining whether actions of the employer were reasonable – costs
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Baran, counsel
Rankin Ellison Lawyers
Respondent:
Mr S Hunt, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms J Peacock
DATE OF MEMBER’S DECISION:	6 April 2023

INTRODUCTION

This is an appeal by the State of New South Wales (NSW Police Force) against a determination in favour of Senior Constable John James Plant.
The Member issued a Certificate of Determination dated 6 April 2023 as follows:
“1.     The [appellant] pay the [respondent’s] s 60 expenses on production of accounts and/or receipts.
2.      Award for the [respondent] for weekly compensation based upon no current capacity for work for all periods of the claim from 10 December 2021 to date and continuing in accordance with the provisions of the Workers Compensation Act 1987 (the 1987 Act) as follows:
(a) from 10 December 2021 to 23 February 2022 at the rate of $1,895.84 per week;
(b) from 24 February 2022 to 31 March 2022 at the rate of $638 per week;
(c) from 1 April 2022 to 30 September 2022 at the rate of $647.90 per week,
(d) from 1 October 2022 to 31 March 2023 at the rate of $654.50 per week, and
(e) from 1 April 2023 at the rate of $669.50 date and continuing in accordance with the provisions of the 1987 Act
3.      Liberty to the parties to apply in respect of the quantum of weekly compensation within seven days.
4.      The [appellant] pay the [respondent’s] costs as agreed or assessed.
5.      On the application of the [respondent], the matter is declared complex and the costs of both parties be increased by 30%.”
The appeal challenges the whole of the Certificate of Determination.
The appeal raises three grounds, namely:
Ground 1: The Member erred in fact in concluding that the action with respect to discipline/transfer was with respect to a complaint from a police officer deemed by the appellant to constitute sexual harassment.
Ground 2: The Member committed a jurisdictional error by taking into account an irrelevant consideration, namely whether or not statements from the complainants, investigators and policies were in evidence being an irrelevant consideration for the purpose of determining reasonableness.
Ground 3: The Member erred in law in determining that the appellant had not discharged its onus of proof in proving that it acted reasonably pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act).
For the reasons that follow the appeal is dismissed, the Certificate of Determination of the Member is confirmed and the appellant is to pay the respondent’s costs.

THE MEMBER’S REASONS

The respondent’s Application to Resolve a Dispute (ARD) dated 5 September 2022 alleged psychological and/or psychiatric injury as a result of being the subject of bullying and harassment in the workplace. In addition, he alleged that he was exposed to traumatic events and incidents while in the service of the NSW Police Force.
There was no dispute that:
(a)    the respondent had sustained psychological injury in the course of or arising out of his employment with the appellant as a Police Officer;[1]
(b)    the respondent was totally incapacitated for employment and had no current capacity for work for all relevant periods of the claim,[2] and
(c)    in the event that the respondent was successful there would be an award for payment of medical or treatment expenses pursuant to s 60 of the 1987 Act.[3]
[1] Plant v State of New South Wales (NSW Police Force) [2023] NSWPIC 144 (reasons), [4].
[2] Reasons, [7].
[3] Reasons, [8].
The appellant relied on s 11A of the 1987 Act. The appellant’s case was that the psychological injury was wholly or predominantly caused by the reasonable action of the appellant taken or proposed to be taken in respect of discipline and/or transfer.[4]
[4] Reasons, [5].
Neither party sought leave to adduce oral evidence or to cross-examine any witness.
The Member observed the action taken by the appellant was in response to an allegation of sexual harassment by the respondent made by a female officer.[5]
[5] Reasons, [25].
The medical evidence before the Member was not extensive and was largely uncontroversial. Dr Potter, psychiatrist qualified by the appellant, reported on 24 November 2021 that the respondent was suffering an Adjustment Disorder caused by his workplace experience.[6]
[6] Reasons, [27].
The Member determined the psychological injury to be wholly or predominantly the result of the appellant’s action with respect to discipline and/or transfer of the respondent.[7] She was not satisfied the injury was the result of exposure to trauma or bullying or harassment.[8]
[7] Reasons, [38].
[8] Reasons, [36]–[37].
The Member directed herself that the question for determination was “whether the [appellant’s] actions taken in relation to the discipline and/or transfer of the [respondent] were reasonable.”[9]
[9] Reasons, [39].
Significantly for the appeal, the Member identified the “real issue” in the case as whether the action taken or proposed to be taken by the appellant was reasonable having regard to the complaint from a female officer. That complaint was deemed by the appellant to constitute sexual harassment.
The Member noted (correctly) that the question whether the action taken by an employer was reasonable was a matter of fact that must be determined on the evidence and that the appellant bore the onus of proof.[10]
[10] Reasons, [45].
The Member set out in summary the matters relied on by the appellant, identifying items (a) to (j) in support of the reasonableness of its action.[11]
[11] Reasons, [46].
She noted that the appellant relied upon statement evidence from three witnesses, Sergeant Leigh Smith dated 29 September 2021, Superintendent Danielle Emerton dated 18 October 2021, and Superintendent Peter Glynn dated 18 October 2021.
Importantly, the Member noted the following:
“The [appellant] has not put into evidence a statement from the complainant and has not put into evidence the written complaint which was deemed by the [appellant] to constitute sexual harassment and to warrant the action taken by the employer in commencing an investigation process, and pending the results of the investigation immediately transferring the [respondent] to another police station and placing him under an interim risk management plan.”[12]
[12] Reasons, [49].
The Member on a large number of occasions (by my count 14) either directly or indirectly adverted to the fact that she was not assisted by evidence from the complainant or the investigating officers.[13]
[13] See, for example, reasons, [51].
The Member noted that following receipt of the complaint, the respondent was put on an interim risk management plan (IRMP) because Superintendent Emerton came to the conclusion that the complaint represented a “pattern of behaviour”. The Member noted that this conclusion was based upon two previous complaints and the third complaint by Ms Laird which was the subject of the investigation. These three complaints appear to have occurred between 1 and 3 August 2020.
The Member said:
“… There is no other evidence before me about these prior complaints concerning the conduct of the [respondent], who previously had an unblemished record. Notwithstanding the concern that Superintendent Emerton considered that the receipt of the third complaint represented a ‘pattern of behaviour’ and that such concern influenced the disciplinary action undertaken against the [respondent], including the transfer to Gladesville and the stringent terms of the interim risk management plan, I have no other evidence about the prior complaints that would allow me to [take] them into account in determining whether the action commenced against the [respondent] was reasonable. Counsel for the [respondent] points out that the prior complaints which were resolved by the [appellant] do not form part of the dispute notices about the subject injury.”[14]
[14] Reasons, [58].
Superintendent Emerton said she had received advice from the Workplace Relations and Equity Unit (WREU) who convened a panel on 6 August 2020. The advice was that the respondent’s reported behaviour met the threshold for a breach of the NSW Police Force Respectful Workplace Behaviour Guidelines classifying the breach as sexual harassment.
The Member said the appellant did not put into evidence any documentation or email communication from WREU in support of the decision to classify the alleged behaviour as sexual harassment. It did not put into evidence the guidelines that the respondent was considered to have breached, namely, the NSW Police Force Respectful Workplace Behaviour Guidelines.[15]
[15] Reasons, [61].
Superintendent Emerton’s evidence included advice that she had Acting Inspector Walters (Ryde Police Area Command Professional Standards Duty Officer) and Detective Sergeant Teeling from the WREU devise an investigation plan. The investigation was allocated to Acting Inspector Blacker and Detective Senior Constable Bartlett. These officers were assigned to interview a number of witnesses.
The Member said:
“The [appellant] has not put into evidence any statements from any of the officers referred to above. The [appellant] has not put into evidence any record of interview of the complainant or statement from her or any record of interview or statements from the persons identified by the [appellant] as witnesses.”[16]
[16] Reasons, [65].
The Member noted that there was no statement from Inspector Element; the Guidelines from WREU were not in evidence; and the Interim Risk Management Guidelines for Police were not in evidence. Similarly, the appellant had not put into evidence any statement from any officer of the Professional Standards Command or any document emanating from the Professional Standards Command that Superintendent Emerton said guided her in her handling of the complaint.
The Member observed that the appellant had not put into evidence any documentation that supported Superintendent Emerton’s conclusion that there were identified risks to the complainant, internal police complainants and other witnesses, nor the nature of any such risks.[17]
[17] Reasons, [72].
The IRMP imposed by Superintendent Emerton provided:
“●     For the duration of the interim risk management plan, perform duties in the intelligence office at Gladesville Police station.
●      Perform duties as tasked by the supervisor, duty officer or commander, Ryde Police Area Command.
●      Seek authorisation from the supervisor, duty officer or commander, Ryde police area command prior to undertaking any duties other than those you have been tasked
●      Not to work directly with female staff/officers
●      Not to change his roster without express permission of the commander
●      Not to have one on one conversations with female staff (sworn and unsworn) who are lower than Sargent rank, unless you are in the company of and being supervised by another person.”
Superintendent Emerton said that the respondent was informed of the complaint on 11 August 2020. The respondent’s uncontradicted evidence was that he was told that there was a complaint but he was not given any particulars of the complaint.
Later the Member notes and appears to accept the following evidence:
“The [respondent] says that he was not provided with any more detail about the complaint until some two months later on when he was given a direction to attend an interview on 13 October 2020 with Detective Sergeant Hampstead. The [respondent] submits that the delay in providing him with particulars of the complaint was unreasonable.
There is no evidence before me from the [appellant] which explains the delay in providing the [respondent] with particulars of the complaint. Upon receipt of the complaint, the [appellant] almost immediately transferred the [respondent] from Eastwood to Gladesville and subjected the [respondent] to the stringent conditions of an interim risk management plan as set out above. In these circumstances, the delay in providing the [respondent] with particulars of the behaviours he is alleged to have engaged in towards the complainant is not explained by the [appellant] and is one of the matters I have to weigh in the balance in determining whether the action taken or proposed to be taken by the [appellant] was reasonable.”[18]
[18] Reasons, [80]–[81].
The Member said this with respect to the 13 August 2020 IRMP:
“In my view it is stringent in its terms, particularly as it required the [respondent] to work at a police station that had a staff ratio of 65% female but he was precluded from speaking to a female in the absence of another person. The [respondent] has given evidence about the difficulties this caused him particularly trying to eat in the meal room. It must be remembered that these restrictions were imposed on the [respondent] as interim measures in response to allegations, the actual particulars of which were not put to the [respondent] and which were untested and unproven at this point in time. I am asked to determine that the actions of the employer were reasonable in the absence of evidence, such as the complaint or a statement from the complainant, or any evidence about the Guidelines or policies and procedures that were followed, which would support such drastic measures being taken against the [respondent] in the first instance and measures which the [respondent] says caused him distress and anxiety, particularly as he was not given particulars of the complaint.”[19]
[19] Reasons, [84].
The Member observed that the respondent was interviewed by Detective Sergeant Hampstead and Detective Sergeant Parmeter on 21 October 2020. A Detective Sergeant Dixon was also present. The Member said:
“The [appellant] has not put into evidence the record of interview from 21 October 2020 or any statement of evidence from Detective Sergeant Hampstead or Detective Sergeant Parmenter or Detective Sergeant Dixon about the interview on 21 October 2020.
The only account of the interview in evidence is the [respondent’s] statement about what occurred.”[20]
[20] Reasons, [91]–[92].
The Member then set out the respondent’s account of the interview which raised among other things an allegation that the appellant had failed to comply with its own policies and procedures for conducting an investigation as part of the disciplinary process.
The Member says that the respondent heard nothing until 9 December 2020 at which time he was served with a report entitled “Investigators Report and Supporting Evidence for Service on the Subject Officer”. Again, the Member noted that the investigator’s report was not in evidence.[21]
[21] Reasons, [94]–[95].
Superintendent Glynn served the respondent with a Commander’s Direction prohibiting him from approaching or having contact with twelve specific witnesses. The Member again observed that, with the exception of Chief Inspector Emerton, none of the identified witnesses provided any evidence, and then she made the following unchallenged observation:
“98. There was no claim for privilege made in these proceedings. The [appellant] did not address the absence of this evidence in submissions and did not take the opportunity to make any submissions in reply to the issues about the absence of this evidence raised by the [respondent].
99. The investigators report has not been put into evidence.
100. The [respondent] was upset by the investigators report. He was given the opportunity to respond to the report. He had a conversation with Inspector Thompson who provided direction as to how he should respond to the Notice. The [respondent] says he saw the opportunity to respond as his first opportunity to respond to the complaint.
101. On the 22 December 2020, the [respondent] had a conversation with Inspector Donald regarding the complaint and investigation. He gave evidence that Inspector Donald said to him:
‘None of this would have happened if you didn’t say anything’,
‘You’ll find nobody likes you here and you will either quit or get over this’,
‘[The complainant] needs to be able to come to work in a safe environment.’
102. There is no statement of evidence from Inspector Donald.”
The Member set out at length the submissions in the letter provided by the respondent’s solicitors in answer to the investigation report. Following that, on 2 February 2021 the respondent gave evidence that Superintendent Glynn said to him words to the effect: “You’ve made my job so hard, you’re blaming everybody else, not taking responsibility and it’s full of conspiracy theories.”[22]
[22] Reasons, [107].
The respondent was informed on 18 March 2021 of the outcome of the investigation. Superintendent Glynn identified that four issues had been sustained and three issues were not sustained.
The Member made the following dispositive conclusions:
“The [respondent] went off work on 24 June 2021. It is not in dispute that he has a psychological injury that totally incapacitates him for employment for all relevant periods of the claim which commences from 10 December 2021.
The question of whether an employer’s actions were reasonable is a matter for factual determination. I have to make a determination on the balance of probabilities. I have to weigh all of the evidence in the balance. I have done that here and whilst the instigation of the investigation may be considered reasonable in response to allegations which may be considered to potentially constitute sexual harassment, the process must be fair to all parties. Fairness forms the basis of reasonable action taken in relation to discipline in response to what are only allegations, until they are found, after proper investigation, to be true and to constitute sexual harassment. When I weigh all of the evidence in the balance, I cannot be satisfied that the disciplinary action taken by the [appellant] was reasonable because the [appellant] has not put in evidence the material which would support such a finding. I have highlighted throughout these reasons the evidence that is missing. In view of the absence of evidence that has been identified, the [appellant] has not discharged the onus of proof to establish their defence that the actions taken or proposed to be taken by them in relation to discipline and/or transfer were reasonable. The defence fails and the [respondent] is not precluded from the recovery of compensation.”[23]
[23] Reasons, [116]–[117].
Thereafter the Member made the orders noted in the Certificate of Determination.

THRESHOLD MATTERS

There is no dispute that the appeal was brought within 28 days of the making of the decision and that s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is satisfied.
Plainly the amount in issue is more than $5,000 and s 352(3) of the 1998 Act is met.

NATURE OF THE APPEAL

The jurisdiction provided by s 352(5) of the 1998 Act is one limited to a determination of whether the decision appealed against was or was not affected by error of fact, law or discretion and to the correction of such error. “The appeal is not a review or new hearing.”

ON THE PAPERS

The appellant has submitted that the matter can be dealt with on the papers but that it would be preferable that an oral hearing be conducted.
The respondent does not appear to have made any submissions with respect to this issue but has ticked “yes” in its Notice of Opposition to the question: “Can the appeal be decided solely on the basis of the written application and any written notice of opposition lodged?”.
Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am so satisfied in this matter and propose to determine the matter “on the papers” without holding any conference or formal hearing.

DISCUSSION

Ground 1 – The Member erred in fact in concluding that the action with respect to discipline/transfer was with respect to a complaint from a police officer deemed by the appellant to constitute sexual harassment

Appellant’s submissions Ground 1

The appellant submits that the Member did not consider the full range of “comments” the respondent was alleged to have uttered, and that the respondent’s behaviour extended to making comments as follows:
“(a)    ‘I bet you’re the sort of person who would be bashed by her boyfriend’;
(b)     also ‘if her boyfriend was to bash her she was the type of girl that would flog him back’;
(c)     having conversations with a female employee questioning her as to how she was going in her personal life and whether or not she had been on any dates or meeting people and if she’s been using any applications like Tinder to meet people;
(d)     speaking to a female employee and saying ‘Hi, how are you, have you been on any dates lately?’;
(e)     going up to a male employee and asking ‘do you go down on your wife?’”[24]
[24] Appellant’s submissions, [9].
The submission is that in a work context such comments were unacceptable. The Member was required to consider these in her determination of reasonableness.
The appellant submits:
“The respondent was well aware of the nature of the allegations against him and indeed conceded that changes ought to be made and made certain admissions against his interests, for example; changing an allegation of sexual harassment to harassment.”[25]
[25] Appellant’s submissions, [26].
The appellant says:
“The respondent did not dispute that those matters referred to in the concluding document of the investigator’s report and supporting evidence were correct, namely that the respondent had the ability to have the allegations made fairly and squarely to him, to provide a written response to the evidence, participate in an interview or decline to do so. Additionally, he was given a further opportunity to respond to take into account or consider prior to any decision being made any further matters and also to raise any mitigating or extenuating circumstances that he would like the Commissioner or the Commander to take into account.
Contrary to the allegations of criminal behaviour, corruption and conspiracy that are advanced by the respondent against the appellant and in particular senior police officers, the appellant set out with supporting documentation all of the action that was implemented with respect of the complaints that had been made, the breaches of interim management plans by the respondent and how they were dealt with as well as the final and concluding action with respect to discipline.”[26]
[26] Appellant’s submissions, [28]–[29].
The appellant submits that the Member factually directed herself to the wrong enquiry. She incorrectly assumed the basis of the dispute before her. The evidence disclosed a number of complaints made about the respondent, not just one complaint of sexual harassment from a female police officer alone.
The appellant submits that so much is accepted by the respondent in his numerous statements. It is submitted that an error of fact caused the Member to make the wrong enquiry in terms of assessing the reasonableness of the appellant’s actions.

Respondent’s submissions Ground 1

The respondent submits that liability was disputed by way of a notice issued pursuant to s 78 of the 1998 Act (the s 78 Notice) dated 17 November 2021. As a consequence of objection taken to the s 78 Notice, the appellant confined its defence to the categories of transfer and discipline.
At the conciliation/arbitration, the appellant relied upon events which “occurred on or about 2020 through to the 23rd of August 2021” with the “origin” being a complaint received by Superintendent Emerton on 3 August 2020.[27]
[27] Respondent’s submissions, [16], citing transcript of proceedings, 30 November 2022 (T), T4.25;
The respondent’s submission is that in so far as the discipline and actions taken in relation to that process were concerned, the Member’s focus on the complaint made on 3 August 2020 was in keeping with the dispute which was before her as particularised by the appellant in the s 78 Notice and again at the conciliation/arbitration.
It follows, so the respondent submits, that any disciplinary or transfer action taken or proposed to be taken in relation to the alleged earlier or other events did not form part of the s 11A defence. The Member was correct to focus on the handling of the complaint received by the appellant on 3 August 2020.

Submissions in reply

The appellant did not file submissions in reply. In particular, there is no reply to the respondent’s submission at paragraph [16] (see [54] above).

Consideration

In Northern New South Wales Local Health Network v Heggie[28] Sackville AJA (Basten and Ward JJA (as her Honour then was) agreeing) said:
“Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.” (emphasis in original)
[28] [2013] NSWCA 255; 12 DDCR 95 (Heggie), [59].
The Member formulated her enquiry to accord with this statement of principle when she said:
“The action taken or proposed to be taken by the [appellant] in relation to the discipline of or transfer of the [respondent] was in response to allegations of sexual harassment against him by a female police officer.”[29]
[29] Reasons, [34].
She correctly focused on the action giving rise to the psychiatric injury. Thus she noted that Dr Potter said “the workplace experience” was causative of the adjustment disorder and thereafter set out in full the history taken by Dr Potter. She referred to treating psychologist Dr Wilson’s report of 31March 2022, quoting therefrom: “Mr Plant’s workplace injury was developed due to evidenced typical investigative procedures not being actioned according to due processes to thoroughly investigate allegations from another co-worker.” Likewise, she quoted treating general practitioner Dr Moajjema’s history that the respondent had been “accused from 2020 with much evidence and no proper explanation from work which caused severe mental anxiety and trauma”.[30]
[30] Reasons, [31]–[32].
The appellant did not in the oral or the written submissions refine the precise disciplinary action and/or transfer which it said was causative of the accepted psychological injury and which the Member was required to determine was reasonable.
The s 78 Notice identifies the causative action as:
“Following receipt of a complaint against you on 3 August 2020 in regard to sexual harassment at [the] workplace, Superintendent Danielle Emerton of Ryde Police Area Command (PAC) contacted the Workplace Relations and Equity Unit of the NSW Police Force and referred the complaint for internal investigations as it was considered to amount to breach of the NSW Police Force Respectful Workplace Behaviour Guidelines.”[31]
[31] ARD, p 182.
The Member plainly focused on the reasonableness of the action taken by the appellant to that complaint against the respondent.
Whether or not there was one complaint or a number of complaints made against the respondent may not matter. It is not disputed that the appellant’s actions were a response to the complaint of sexual harassment made by a female officer, namely, Ms Laird. The Member plainly found that the action of the appellant in relation to that complaint by way of discipline and transfer was not reasonable.
It follows that, even if the Member did not have regard to the other matters, the fact that she found that the action with respect to the particular complaint that she did address was not reasonable meant that the defence under s 11A could not succeed.
I am not persuaded that the Member committed the error alleged by the appellant. Ground 1 of the appeal is dismissed.

Ground 2 – The Member committed a jurisdictional error by taking into account an irrelevant consideration, namely whether or not statements from the complainants, investigators and policies were in evidence being an irrelevant consideration for the purpose of determining reasonableness

Appellant’s submissions Ground 2

The appellant makes the submission that whether or not the relevant action in respect of transfer/discipline or proposed action was reasonable required the Member to direct herself to the statutory language and assess the appellant’s actions by reference to the circumstances known to the appellant at the time.
The appellant submits that it was not required to produce multiple statements from numerous witnesses to flesh out the merits of the complaints that had been made against the respondent.
Having referred to seven specific references by the Member to material not adduced into evidence, the appellant submits:
“None of these matters form part of the dispute. The respondent in his numerous statements was well aware of the nature of the complaints made against him. They were in the nature of harassment and sexual harassment or inappropriate conduct in the workplace. He addressees them extensively as [do] his lawyers. What the Member was doing by making the numerous criticisms that she did was to go into the merits of whether or not there was a basis for the complaints in the first place and the process that was then followed. Axiomatically whether they were correctly established.”[32]
[32] Appellant’s submissions, [38].
The appellant says that the Member committed jurisdictional error because she did not correctly address the issue of whether or not on the materials (all of them) the appellant had discharged its onus of proving that it treated the respondent reasonably when it came to the allegations made against him.
The appellant’s submission is that the Member should not have been concerned with the merits but rather with whether or not the process was fair.
The appellant submits:
“It is the action or process and only the action or process that is relevant.
By insisting on all the evidence of and concerning the actual complaints themselves the Member was, with great respect, descending into the merits of whether or not the complaints themselves were valid and thereafter the validity of the process judged against the policies, practices and procedures of the appellant.”[33]
[33] Appellant’s submissions, [45]–[46].
The Member’s conclusion should, according to the appellant, have been that the respondent was treated fairly and that “the process was objectively reasonable because the appellant [sic, respondent] had a full opportunity to explain his position in answers to questions by investigating officers and resist action taken against him.”[34]
[34] Appellant’s submissions, [47].

Respondent’s submissions Ground 2

The respondent in his background submissions refers to paragraphs [18]–[114] of his written submissions provided to the Member. In my view that is an unsatisfactory way of addressing the issues on appeal because it fails to focus the submissions on matters relevant to the appeal.
The respondent refers to the requirements of s 11A and says that he accepts the Member’s findings that the psychological injury was predominantly the result of action taken or proposed to be taken by the appellant in relation to transfer and/or discipline and, further, that the allegation of sexual harassment having been received, it was not unreasonable to commence an investigative process. However, the respondent disputes that the disciplinary process, including the transfer under the IRMP, was carried out in a reasonable fashion or that it was reasonable to continue the process.
The respondent adverts to his previous submissions at paragraphs [50] to [114]. For the reason previously indicated, I do not find that a satisfactory way to address the appeal submissions.
The respondent quotes from Rail Corporation NSW v Aravanopules;[35] Heggie; Commissioner of Police v Minahan,[36] and Ivanisevic v Laudet Pty Limited.[37]
[35] [2019] NSWWCCPD 65.
[36] [2003] NSWCA 239, [27]–[28].
[37] Unreported, 24 November 1998.
Having cited those authorities, the respondent notes that it is relevant that the employer failed to consider its own policies and procedures when considering the reasonableness of the action.
The respondent submits:
“While the Respondent had been advised on the 11 August 2020, that a complaint had been made against him (ARD 16, Para 69) and in non-specific terms on the 13 August 2020, that the allegation was of sexual harassment (ARD 17, Para 75), he was not provided with details of the allegation until the 13 October 2020, when over two months after the complaint, he was directed by Detective Sergeant Hampstead to attend an interview. (ARD 78 and 80).”[38]
[38] Respondent’s submissions, [33].
The respondent submits that being transferred to Gladesville where the station had the highest ratio of female staff made compliance with the IRMP more difficult and onerous. Furthermore, it was contrary to the appellant’s usual practice.
The appellant did not adduce any evidence as to how the matter was considered once it was in receipt of the respondent’s denial of the matters alleged.
The respondent submits:
“The Respondent does not submit that there needed to be a full investigation of the alleged discussions and comments at the time the Appellant commenced its investigation as part of the disciplinary process. However, it is submitted that the alleged comments which were the subject of the complaint on the 3 August 2020, were of such little consequence that there should have been some initial investigation of the veracity of the complaints within a timely fashion before any form of disciplinary action (including a position of the IRMP) was imposed or allowed to continue.”[39]
[39] Respondent’s submissions, [42].

Consideration

The Member raised squarely the proposition that the appellant had failed to adduce evidence as to the absence of the material relied upon to support the discipline and transfer, as is made clear from the passage at reasons [117], quoted at [38] above.
The argument advanced by the appellant is that the Member has not engaged in a merits review but is only concerned with the process. The appellant does not cite any authority for that proposition.
In Heggie Basten JA said this:
“The Deputy President took into account the fact that the general manager was not called to give evidence. (She was no longer employed by the appellant at the time of the proceedings in the Commission). However, her evidence would, in broad terms, have potentially covered two areas. She could have spoken to the material available to her when she made her decision and she could have spoken of her reasons for making the decision. The available material was an important factor, but it was largely documentary (in the form of statements from witnesses to the incident) and was otherwise available. Her reasons for making the decision could have been relevant in a negative sense, if, for example, it were established that she was actuated by malice or other irrelevant factors. There was, however, no suggestion to that effect. Given the need to assess the reasonableness of the action objectively, her actual reasons for the decision were of little significance.
The second issue concerned the material upon which such an assessment was to be undertaken and was the more complex. There is no doubt that the principal material on which the reasonableness of the employer’s action was to be assessed was the information available to the general manager at the time the action was taken. One important consideration was that serious allegations had been made, which needed to be investigated. If established to be sound, some form of disciplinary action was likely to be taken against the respondent. …”[40]
[40] Heggie, [11]–[12].
Similarly, in Heggie, Sackville AJA under the heading “Background” set out in detail what happened leading to Mr Heggie’s suspension.
The Member could not discharge the task of determining the reasonableness of the appellant’s action with respect to the respondent without a consideration by her of the material that led the appellant to act as it did during the period 3 August 2020 to October 2021.
There is no authority cited by the appellant for its approach which in my view is more consistent with an administrative law assessment. Reasonableness is an objective standard dependent upon consideration of the facts as established by the evidence.
The statutory interrogation required the Member to determine whether the injury was caused by “reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, … discipline … .”
The employer’s action with respect to the respondent was motivated by the outcome of its investigation into the complaints and the application of the guidelines to those investigations. It is difficult to conceive how the Member could be expected to form an objective view as to reasonableness in circumstances where that which motivated the appellant’s actions is not before the Commission.
If it is said that the material was privileged and not therefore available to the Commission, then, with respect, the appellant was required to deal with the Member’s conclusion at [98] of the reasons (see [35] above). The respondent made a key submission, recorded by the Member at [97] and plainly accepted by the Member, that was neither addressed nor rebutted by the appellant, that being that there was no statement evidence from any of the witnesses, with the exception of Chief Inspector Emerton, in evidence.
The Member was entitled to conclude adversely to the appellant that the absence of evidence from the complainant and the other witnesses, together with the results of the investigation reports, meant that the defence of reasonableness could not be sustained.
Finally, the appellant submits that paragraph [78] of the reasons shows that the Member wrongly concluded the respondent had been left in the dark to speculate as to the precise nature of the allegations.[41] This is to misread paragraph [78] of the reasons.
[41] Appellant’s submissions, [39].
I am not persuaded the Member was in error in her approach. Ground 2 of the appeal is dismissed.

Ground 3 – The Member erred in law in determining that the appellant had not discharged its onus of proof in proving that it acted reasonably pursuant to s 11A of the 1987 Act

Appellant’s submissions Ground 3

The appellant submits:
“With great respect the Member was tasked with looking at two events. Firstly, the making of the allegations themselves and then secondly, the investigation leading to the disciplinary process that took place after those allegations had been made leading up to an outcome. She had to direct herself to the evidence of those who were tasked with issuing the complaint on behalf of the complainants and thereafter the processes that were put in place and the opportunities given to the respondent regarding the allegations made against him. Even if evidence is missing, the evidence before the Member demonstrated each step in the complaint process and the complaint handling process leading up to the final outcome which was a non-disciplinary transfer.”[42]
[42] Appellant’s submissions, [51].

The appellant submits that the respondent had all of the relevant information, even if the Member did not. It submits that the process was transparent, objective and open.
The Member was required to ask herself whether or not the actions as the evidence disclosed were reasonable, not what hypothetical evidence may or may not show.
The appellant submits:
“It is respectfully submitted that the evidence of Ms Emerton and Mr Glynn and the annexures to their statements together with preserving the integrity of the investigation by ensuring that the respondent did not come into contact by himself with females and also ensuring that he had stayed away from material witnesses in the investigation together with providing him with support packages, guidance, advice and mentoring as well as ultimately keeping him in close contact with Mr Glynn, all pointed towards a finding of reasonableness. Indeed, the appellant submits that no other finding could have been made.
What [the Member] did not find was that anything done or not done by the appellant was unreasonable.”[43]
[43] Appellant’s submissions, [56]–[57].

Respondent’s submissions Ground 3

The respondent points out that this ground overlaps with Ground 2 and that the appellant’s submissions reverse the onus of proof. The respondent submits that it was not for the respondent to establish that the disciplinary and/or transfer process was unreasonable, rather it was a matter for the appellant to establish that it was reasonable. The respondent otherwise relies on its submissions in respect to Ground 2.

Consideration

I agree with the respondent’s submissions that there is in fact no real difference between this ground of the appeal as developed by the appellant in the submission and Ground 2 of the appeal.
It fails for the same reason. The appellant’s primary proposition, that it was not required to adduce into evidence before the Member details of the substantive evidence that motivated the action of the appellant’s officers, is incorrect.
Section 11A is an enquiry into reasonableness as a matter of fact. It is not an enquiry exclusively into the reasonableness of the “process” undertaken divorced from an enquiry into the merits of the matter being investigated. Reasonableness extends to the action taken as a consequence of the complaint, the investigations and the process.
In so far as the Member was not provided with evidence as to the veracity of the complaint and the investigations into the merits of the complaint, she was right to conclude no matter how reasonable the process may have been she was not in a position to determine that the disciplinary action and transfer were reasonable. Given the state of the evidence advanced by the appellant, the Member’s conclusion adverse to it was inevitable.
Ground 3 of the appeal is dismissed.

COSTS

The respondent is an exempt worker so as I understand it costs are governed by s 341 of the 1998 Act as it was before the 2012 amendments.
Section 341(1) provided that costs are determined in the discretion of the Commission. Section 341(2) provided that the Commission had full power to determine by whom, to whom and to what extent costs are to be paid.
That type or provision bespeaks of the usual order that costs should follow the event. The appeal is unsuccessful and in my view the respondent should have his costs. I order that the costs of the appeal be paid by the appellant.

DECISION

The Member’s Certificate of Determination is confirmed.
The appellant is to pay the respondent’s costs.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

19 February 2024

T 5.11–14.