State of New South Wales v Phelan

[2017] NSWWCCPD 29

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	State of New South Wales v Phelan [2017] NSWWCCPD 29
APPELLANT:	State of New South Wales
RESPONDENT:	Colin Phelan
INSURER:	QBE Insurance Australia Limited as Agent for NSW Self Insurance Corporation
FILE NUMBER:	A1-4380/16 A2-4380/16
ARBITRATOR:	Mr G Edwards
DATE OF ARBITRATOR’S DECISION:	13 March 2017 (amended 14 March 2017)
DATE OF APPEAL DECISION:	13 July 2017
SUBJECT MATTER OF DECISION:	Extension of time to appeal; Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011; alleged factual error – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied; s 11A(1) of the Workers Compensation Act 1987 – appeal going to ‘reasonableness’ of employer’s actions – evaluative decision – Northern NSW Local Health Network v Heggie [2013] NSWCA 255 applied
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	HWL Ebsworth Lawyers
Respondent:	NEW Law Pty Ltd
ORDERS MADE ON APPEAL:	1.   The employer’s name is amended to “State of New South Wales”.
2. Time to appeal in A2-4380/16 is extended, pursuant to Pt 16, r 16.2(12) of the Workers Compensation Commission Rules 2011, to 18 April 2017.
3.   The Arbitrator’s amended decision dated 14 March 2017 is confirmed.

INTRODUCTION

1. This matter involves two allegations of psychological injury by Colin Phelan (the worker) in respect of his employment as a registered nurse at the Lismore Adult Mental Health Unit (the unit), which was conducted by the Northern NSW Local Health District (the employer). Each party appealed in respect of a different ‘injury’ finding. For convenience, I will refer to the parties as the ‘worker’ and the ‘employer’, regardless of which of the two appeals is being discussed. In respect of injury deemed to have occurred on 15 April 2013, the worker’s claim failed due to s 11A(1) of the 1987 Act. In respect of injury on 20 March 2014, the worker succeeded in establishing ‘injury’ and recovered compensation. The employer appeals in respect of the finding of injury on 20 March 2014. The worker appeals against the finding that a defence on the basis of s 11A(1) was made out in respect of the injury deemed to have occurred on 15 April 2013. The issues raised are essentially factual.

2. The employer’s Application to Appeal (A1-4380/16) was lodged first, on 13 April 2017. The worker’s Application to Appeal (A2-4380/16) was lodged on 18 April 2017. Each of the appeals raises discrete issues, and they are dealt with below separately, in the order in which they were lodged.

BACKGROUND

1. The worker was a registered nurse from about 1981, and was employed by the employer at the unit, as a registered nurse in psychiatric care, from about 2005. A complaint was made about the worker’s level of care of a patient by two other employees at the unit. The allegedly deficient care occurred on 29 January 2013. The worker was notified of the complaint in correspondence dated 8 February 2013, to which he responded. In a letter dated 10 April 2013 (received by the worker on 15 April 2013), the employer informed the worker that the complaint was substantiated, and he was issued with a formal caution. He had some months off work, and was diagnosed with an Adjustment Disorder (the first injury). The worker resumed work as a nurse educator at the Lismore Base Hospital, and from January 2014 resumed psychiatric nursing at the unit. The employer paid compensation on a voluntary basis until 26 September 2013, when it issued a s 74 notice disputing liability on the basis that there was a defence under s 11A(1) of the 1987 Act, based on reasonable action with respect to discipline.

2. The worker was allegedly assaulted whilst working at the unit, on 20 March 2014. He was diagnosed with Post Traumatic Stress Disorder (the second injury). He ceased work, and resumed on a part-time basis in the nurse education section from 10 August 2014, ultimately working three days per week. The employer initially accepted liability for this injury, until it issued a s 74 notice dated 24 April 2014. It then denied the occurrence of ‘injury’, referring to CCTV footage which was said to show that there was “no altercation in the A1 corridor involving yourself and a patient”. The worker stated that he was dismissed on 5 June 2015.

THE ARBITRAL PROCEEDINGS

1. The proceedings were commenced by an Application to Resolve a Dispute registered on 24 August 2016, claiming weekly benefits and medical expenses in respect of the above injuries. The arbitration hearing proceeded over three days, 26 October 2016 and 2 December 2016 (both in Ballina) and 19 January 2017 (in Sydney). On the last of these occasions, the worker was connected to the hearing by telephone. Ms Wood, instructed by Mr Dawson, appeared for the worker, and Mr Doak appeared for the employer.

2. On 26 October 2016 the employer unsuccessfully sought leave to rely on a CCTV recording taken by an automated camera installed in the unit, on the evening of 20 March 2014 (the CCTV). Ms Wood then made submissions on the worker’s behalf, and the matter was stood over part-heard. On 2 December 2016 the employer renewed its application to rely on the CCTV, and on this occasion leave was granted. There were then difficulties in showing the CCTV on that date, given the need for the worker’s counsel to view lengthy video and take instructions from the worker (T29.1–30.27). The matter was stood over for hearing in Sydney on 19 January 2017, when it concluded. Relevant passages from the CCTV were shown, counsel for both parties addressed, and the Arbitrator’s decision was reserved. No oral evidence was called. The Arbitrator issued an Amended Certificate of Determination on 14 March 2017, accompanied by 31 pages of reasons (the reasons).   

3. The Arbitrator set out the factual and medical background in detail, and the parties’ submissions, going to the two alleged injuries. He summarised a number of the principles applicable to s 11A(1) of the 1987 Act. He noted the worker had not submitted that the first injury was other than “wholly or predominantly caused by action with respect to discipline” (reasons at [107]). He referred to the evidence dealing with the complaint by two other employees about the worker’s care of a patient on 29 January 2013, and the employer’s investigation of the complaint. He rejected the worker’s argument that he “was denied procedural fairness by the [employer] not providing him with the name or names of the complainants” (reasons at [137]). The Arbitrator accepted the employer’s submission that it “weighed up the evidence before finding the allegations were substantiated” (reasons at [152]). He said that it was “open to the [employer] to make the findings it did based upon the evidence” (reasons at [153]). He concluded that the employer had discharged its onus of establishing a defence based on s 11A(1), and made an award in the employer’s favour, in respect of the first injury.

4. The Arbitrator referred to the worker’s claim form, and other reports and notifications relating to the circumstances of the second injury. He referred at length to the worker’s statement dealing with that injury. He referred to the clinical notes of Dr Johnson, the worker’s general practitioner, following the injury.

5. The Arbitrator referred at some length to statements of Anthony Nolan (a nurse at the unit), Laurence Wheaton (team leader of the High Dependency Unit on 20 March 2014) and Paule Diprose (the manager in charge of the relevant unit on 20 March 2014), taken by investigators and attached to the employer’s Reply. Mr Nolan said that he saw a patient (referred to as “GW”) poke the worker in the chest “a number” of times on 20 March 2014. Mr Wheaton said that on the night of 20 March 2014, the worker was “ranting on” about a patient, and prodded him (Mr Wheaton) in the chest saying “What I am doing to you is what he did to me”. Ms Diprose said that GW had been “screaming and threatening other patients”. She said that the worker had been “very vicious in his poking” of Mr Wheaton in the chest, and she “formed the opinion that [the worker] was commenting about the transfer of patient GW” (reasons at [169]–[182]).

6. The Arbitrator then referred to the CCTV, and a statement of Stuart Rollans (the employer’s acting senior security officer) reviewing and analysing the footage. Mr Rollans said that he “thoroughly checked the footage on a number of occasions and saw no physical contact between the patient GW and [the worker]” (reasons at [189]). The Arbitrator referred to his viewing of the CCTV at the arbitration hearing. He said that the view of a hand basin and its partitioning wall was “blocked” by a “Patient WC/Shower” door when it was open (reasons at [192]–[194]). Mr Nolan’s statement put the incident which he witnessed as “near the basin” (at [12]). He said that a person standing at the “Nurses Station” (where Mr Nolan was) “would be able to view the eastern corridor including the hand basin” (reasons at [196]). The Arbitrator said that the employer’s denial of liability failed to consider “that the camera would not capture movement between the open ‘Patient WC/Shower’ door and the hand basin where the incident between patient GW and [the worker] occurred” (reasons at [197]). The Arbitrator accepted the worker’s evidence of the assault by GW, “corroborated by Mr Nolan’s evidence” (reasons at [198]).

7. The Arbitrator then made other findings dealing with the medical evidence going to the injury suffered due to the events of 20 March 2014, and incapacity, which are not the subject of challenge on this appeal.

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”

2. Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties that the appeals can proceed to be determined on the basis of these documents, 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.

THRESHOLD MATTERS

1. There is no dispute between the parties that the threshold requirements as to quantum in s 352(3) are satisfied. There is no dispute that the first of the appeals (no A1-4380/16) was lodged in time. The second of the appeals (no A2-4380/16) was registered on 18 April 2017, outside the period prescribed in s 352(4) of the 1998 Act. It requires an extension of time if it is to proceed.

The Application to Extend Time in No A2-4380/16

1. Part 16, r 16.2(12) of the Workers Compensation Commission Rules 2011 (the Rules) provides:

   “The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”

2. In Bryce v Department of Corrective Services [2009] NSWCA 188 (Bryce) Allsop P (Beazley and Giles JJA agreeing) dealt with the then equivalent provision in Pt 16, r 16.2(11) of the Rules. His Honour at [8] said:

   “In my view, the phrase ‘in exceptional circumstances’ finding its place in the middle of the rule is to be dealt with as a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction.”

3. In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 (Yacoub) Campbell JA (Tobias JA and Handley AJA agreeing) dealt with the phrase ‘exceptional circumstances’, in the Uniform Civil Procedure Rules 2005. His Honour at [66]–[67] said:

   “66.   In San v Rumble (No 2) (2007) NSWCA 259 at [59]–[69], I gave consideration to the expression ‘exceptional circumstances’ in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).

   (a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).

   (b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912–913).

   (c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).

   (d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912–913).

   (e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).

   67.    In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56–59 Civil Procedure Act 2005.” (emphasis in original)

4. I applied the above passage in Rockhard Products Pty Ltd v Economidis [2009] NSWWCCPD 159; 11 DDCR 310, subject to saying that, in the context of the Commission, it is appropriate to have regard to ss 3 and 354 of the 1998 Act, when considering the application of the provision.

5. The Commission, in dealing with applications to extend time for bringing Presidential appeals, has frequently applied the following passage from the judgment of McHugh J in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at [2] (excluding references):

   “The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. … This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. … When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. … It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted. … It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.”

Appellant Worker’s Submissions on the Extension in A2-4380/16

1. The worker submits that he suffers from a significant psychological condition. The prosecution of his claim was “protracted”. Although he was “aggrieved by the decision in respect of the first injury”, he instructed his solicitors not to proceed with an appeal “in the interests of achieving a final outcome”. This is submitted to have been “contingent” on the employer not appealing in respect of the second injury. The employer’s appeal in A1-4380/16 was served at 3.16 pm on the last day allowed for an appeal. This is described as “enlivening the instructions from the Appellant Worker to proceed with an appeal in respect of the first injury”.

2. The worker submits that his appeal has real prospects of success. If he is not granted leave, the only appeal to be considered is that of the employer, and there is a potential to deprive the worker of “all compensation claimed by him”. He acted promptly after he had notice of the employer’s appeal. There is no real prejudice to the employer. The “unusually protracted nature of the proceedings, the Appellant’s psychological condition and his understandable desire to have finality, taken together constitute exceptional circumstances”: Bryce.

Respondent Employer’s Submissions on the Extension in A2-4380/16

1. The two allegations of injury were “separate” and “unrelated in all material aspects”. The decisions on ‘liability’ for the injuries were not dependent on each other. The worker made a “forensic decision to delay lodging his appeal”. The history does “not disclose any exceptional circumstances as required by Rule 16(12)”. The employer submits that the appeal lacks reasonable prospects of success.

Consideration

1. The submissions of the parties proceeded on the basis of an acceptance of the factual assertions underlying the worker’s submissions dealing with the extension. The factors which favour extension are:

   (a)     The employer does not suggest that there is prejudice.

   (b)     The period by which the appeal was out of time was relatively short; it was lodged on 18 April 2017, only five days after the employer’s appeal, which was in time. These days included a weekend.

   (c)     In Hume v CSR Ltd [2015] NSWWCCPD 7 (Hume) Roche DP discussed the absence of a procedure in the Commission for the filing of a cross-appeal. The Deputy President contrasted this with the procedure under r 51.17 of the Uniform Civil Procedure Rules 2005, which allows a respondent to an appeal 14 days in which to lodge a cross-appeal. If only the employer’s appeal is dealt with, there is the prospect of injustice, if the employer’s appeal succeeds, and that of the worker is not considered.

   (d)     The arbitration hearings in this matter extended over a little less than three months, and the decision post-dated the first arbitration hearing by four and one half months. There were various factors that contributed to this, the employer’s application on the first date to rely on the CCTV, the further argument and decision in that regard during the second arbitration hearing, the difficulties in showing the CCTV on that date, and the relatively complex factual nature of the matter. Given the relative success of the worker, and his psychological difficulties, his initial decision not to appeal, subject to the approach taken by the employer, was “not unreasonable” (to use the language in Hume at [26]).

   (e)     The confluence of matters identified by the worker (see [20]–[21] above) constitutes ‘exceptional circumstances’ (see Yacoub at [66(c)]). This is not determinative, but is a matter to be considered (Bryce at [8]).

   (f)      The matter is before a Presidential member for determination of an appeal pursuant to s 352 of the 1998 Act in any event.

   (g)     The worker’s appeal has arguable prospects of success.

2. The factors militating against extension are:

   (a)     The worker made a decision not to appeal (see generally Itek Graphix Pty Limited v Elliott [2002] NSWCA 104; 54 NSWLR 207). However, this matter may be contrasted with that decision, as in the current matter the worker did not make an informed decision to allow the statutory period to expire.

1. On balance, the circumstances favour extension of time to appeal. Time to appeal by the worker is extended to 18 April 2017.

THE NATURE OF THE APPEAL

1. These appeals are governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):

   “An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”

2. The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):

   “On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

   Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

THE EMPLOYER’S APPEAL – NO A1-4380/16

THE GROUNDS OF APPEAL

1. The employer’s grounds of appeal essentially recite a number of the Arbitrator’s factual findings, relevant to his ultimate finding of fact that the worker suffered injury on 20 March 2014. The employer submits these factual findings were made “without any or any sufficient evidence”, and constitute legal and factual error. The alleged errors largely relate to how the Arbitrator dealt with the CCTV, and are:

   (a)     finding that activity between the “Patient WC/Shower door in the open position and the hand basin would not be captured [on CCTV] because movement is blocked by this door” (reasons at [194]) (Ground No 1);

   (b)     finding that the patient GW assaulted and was abusive towards the worker, on the background of being considered by Ms Diprose and Mr Nolan to be unwell, psychotic, delusional and paranoid (reasons at [198]) (Ground No 2);

   (c)     finding that the employer declined liability on the basis of Mr Rollans’ viewing of the CCTV, without considering that the CCTV would “not catch movement between the open Patient WC/Shower door and hand basin where the incident between the patient GW and Mr Phelan occurred” (reasons at [197]) (Ground No 3);

   (d)     finding that injury occurred on 20 March 2014 and that the worker was entitled to weekly compensation and medical expenses arising from it (Ground No 4), and

   (e) failing to give “proper reasons” for the above findings (Ground No 5).

THE LAY EVIDENCE

1. An undated statement of the worker, attached to the factual investigation report dated 17 April 2014, dealt with the incident on 20 March 2014. He said that on 20 March 2014 he was rostered to work in ward A1, which had 16 patients. There were four nurses allocated to work in each ward. It continued:

   “15. Early in the shift we had to transfer one of the patients from my ward into A1 and take one of their patients. We had to accept the aggressive patient because Emergency needed the bed. We were given the best of a bad bunch from HDU [High Dependency Unit].

   16. Only the day before this patient came in HDU. I had to give the patient an injection (antipsychotic) which the patient had been admitted for not taking. He was so aggressive that they called three security guards and the nurse who was allocated to give the injection was too frightened and I had to do it. He would not lie down for the injection, so I gave it to him standing up and was abused and threatened by the patient. The medication I gave him does not take affect for one week, so I was very surprised when he was transferred out the next day. There is a normal requirement to use another quick acting drug as well, but they decided not to and gave him oral medication. The oral medication did not work at all.

   17. From the time I received the patient that night, he was aggressive and dismissive (verbally). I thought he was a risk and complained to Wendy DALY (Nurse Educator) that there was no clinical reasoning for the transfer and it was purely for the bed. Wendy told me that Michael MARTIN (NUM One –Morning Shift) had agreed to accommodate him.

   18. The patient was an addicted smoker and could not have leave to smoke. He refused NRT (nicotine replacement therapy). He was an angry man simmering away. I wrote as much in my notes. He was unpredictable and dangerous and I thought he had a potential for aggression. Wendy told me that she would speak to Michael about [sic]. However, Michael had already gone home for the day.

   19. I was walking through the unit doing the half hourly round at about 9:00PM. Meantime, there had been a fire alarm that lasted about forty minutes and we evacuated them to the courtyard, where we experienced anger from the patients. It was a false alarm. This meant that the nurse in charge (Ray Cook) was off the ward for a considerable time.

   20. An hour or so had passed since we got the patients back to the ward and it was then I was doing the final round. I was walking down the corridor in A1 and I had a checklist in my hand. I was ticking patients off as I walked around.

   21. All of a sudden, while I was doing the rounds, this patient leapt out from behind the sink hob in the long corridor. He appeared from nowhere and started verbally abusing me and poking me in the chest. He was highly abusive using very strong language. I cannot relate to everything he said, but he was abusing me for giving him the medication.

   22. I was so frightened by the incident. This was the fourth and was minor compared to the other incidents, but it brought back all of the previous assaults and I lost it. I thought I must have been bleeding, which I wasn’t and I was looking for blood that was not there.

   23. I ran back into the office and when I got in there, I told everyone there what had occurred. I was not myself and I felt desperate. I walked up to Anthony NOLAN (Nurse) and started poking towards his chest. Anthony just jumped out of the way. I said ‘That guy just assaulted me (patient), he is off his head’. Laurie WHEATON was on the HDU and he came into our office and he said ‘No he is not, he is fine’. I then told Laurie what he had done and said to me. I think this what happened [sic]; I poked Laurie in the chest. I had not intent [sic] to hurt anyone and I don’t know if I did but I lost it.

   24. All the staff members were present in the office, at least six or seven people. Not long after that Paule DIPROSE asked me to go to her office. I told her that I had been assaulted and I badly needed a cigarette and I started to cry. Meantime, the shift was finishing and they walked past the open office door where I was with Paule. I am not in the habit of breaking down and crying like that.”

   And:

   “50. The only person who would have been in the general area where the incident occurred in the corridor that night was Anthony NOLAN, who was in the office/nurses station. I haven’t spoken to him about his possible observations.”

2. The worker gave a later statement dated 11 August 2016, in which he said in part:

   “3. In relation to the incident of March 20, 2014 I would say that when I encountered the patient in the corridor I was very on edge I was verbally abused by him in a manner which I felt to be sinister and threatening. I genuinely believed that I was physically threatened. At the time I felt I had been poked in the chest. On reflection I believe that the chest discomfort I felt was perhaps a tightness or burning like sensation in my chest. I was genuinely frightened for myself but also of myself as I felt an uncontrollable anger. I felt a rage which at the time I didn’t fully understand but now see that it was just the cumulative effect of the number of times I had been assaulted.”

3. In that later statement the worker also said that the reason he was given for the termination of his employment on 5 June 2015 was “making a fraudulent workers compensation claim”, and he received correspondence stating that he had been placed on the “Do Not Employ Register”.

4. The material includes a document headed “IIMS Notification Form”. It is to be used to notify incidents. It is dated 21 March 2014. The “Notifier” is the worker, notification being given to Ms Diprose. The incident was described:

   “Walking through Unit conducting regular patient checks – Pt G.W. appeared and began to verbally abuse me and poking me in the chest: I have had previous assaults and this brought them flooding back.”

5. The worker stated that 25 March 2014 was the first available appointment he was able to arrange with his general practitioner, Dr Johnson (his undated statement at [27]). Dr Johnson’s notes for 25 March 2014 record:

   “Says patient assaulted him at work on 20/03/2014..appeared out of nowhere … suddenly and was very verbally abusive to him. And started pushing him in the chest.. said had flashbacks to prior assaults…and now cannot face going back to work in mental health… will need psychological treatment for this… says is not problem with management like before… felt patient should not have been released to unit…says he just can’t face work… says was not helped by fire alarm going off for an hour…

   Says is a work cover incident…will need to have psychiatric advice. Actions:

   Letter created – re. NSW – WorkCover to .

   Mentions 4 previous assaults… fracture of nose, concussion,, scrape across eye.. this time no physical signs but appears quite upset…”

6. There is also a claim form dated 1 April 2014, signed by the worker. It describes the worker’s tasks when injured as “normal ward task of checking patient whereabouts in ward”, and the description of how he was injured as “I was assaulted by a patient – he prodded me in the chest whilst verbally abusing me – this brought previous assaults flooding back.”

7. A statement of Laurence Wheaton (a psychiatric nurse in the unit) dated 14 April 2014 was attached to the same factual report. He was the team leader in the HDU on the night of 20 March 2014. He described the patient GW being transferred out of the HDU to A1, as HDU was “over numbers”. He described GW as “very thought disordered and psychotic”, but “not exhibiting any significant management issues”. Mr Wheaton said:

   “16. At about 9.15 pm I was in the Nurses Station preparing for changeover. When I heard Colin [the worker] going off in a loud voice. He was going of [sic] about how GW should not have been transferred from HDU. Colin was in the A1 Nursing Station at the time and I was in the joining part between the two stations.

   17. I then commented ‘At the time, he was the most settled of the patients that we had’. Colin then stormed over to me. I was standing against a wall and Colin was really going off and he was pushing a finger into my chest. I am not sure which finger or hand, but he did this with enough force that I was still tender in the chest area the next day. It was continuous prods and pushing in. It only occurred for about a minute or less (it was only a short time).

   18. During this assault, Colin was ranting on about the patient. He said ‘When I say the patient is not alright, he is not alright’. He then said ‘What I am doing to you is what he did to me’. He then stormed off to the treatment room. I looked around and saw that all the other staff in the room with me were looking shocked and stunned.” 

8. There was a statement of Karen Taylor, another psychiatric nurse at the Unit, dated 14 April 2014. She worked in the HDU on the evening of 20 March 2014. Her statement, dealing with events “towards the end of shift that night”, included:

   “16. At this time Laurie WHEATON (CNS) was standing near the office partition/divider within my view. He was in conversation with Colin [the worker], but I just got the tone and not content. I noted that Colin’s tone was aggressive.

   17. I was only a couple of metres away at the time and I saw Colin poking at Laurie’s chest with two finger [sic] on one of his hands (not sure which hand). It happened very quickly but there were a number of contacts (fingers to chest) while I was watching.”

9. There is a statement of Paule Diprose dated 28 April 2014. She was the Nurse Unit Manager of “all Adult Mental Health Wards” on 20 March 2014. Her statement included:

   “17. As it happened, I walked into the A1 staff office as an incident involving Colin PHELAN and Laurie WHEATON occurred. I saw Colin poking very roughly at Laurie’s chest. I heard Colin say ‘If I say a patient is not suitable, he is not suitable’. The situation was highly emotional. Colin appeared very vicious in his poking.”

10. Anthony Nolan, also a psychiatric nurse, was working on ward A1 with the worker on 20 March 2014. He said:

    “11. I recall a patient (GW) being transferred to A1 from the High Dependency Ward that evening. This patient was very unwell; he was delusional and paranoid. I personally was of the view that he was not ready to leave the High Dependency Unit. He noted he would raise his voice as he became delusional.

    12. I recall being in the Nurses Station at A1 at about 9:00PM or 9:30PM when an incident occurred in the eastern corridor which was within my view. The incident occurred near the basin and involved Colin PHELAN and the patient GW. From my observations, Colin had been doing the thirty minute rounds and appeared to be checking a sheet in the area, when GW suddenly appeared in front of him and I saw that GW was poking at Colin in the chest. Colin appeared startled at the time. I could tell that GW was saying something, but I couldn’t hear the words. His actions towards Colin appeared to be accusatory. The incident did not continue very long, but there were a number of pokes to the chest involved.

    13. I saw Colin back away and he then came to the Nurses Station where I was. Laurie WHEATON was also in the Nurses Station at the time. Colin seemed very flustered, anxious; (he was in fight or flight mode). There was a conversation between them, but I am now unsure of what was actually said at this point in time. Colin then poked Laurie in the chest at the time, which appeared to be mimicking what GW had just done to [sic] in the corridor. He also mentioned that this was what GW just done to him [sic]. The NUM became involved at this time and I continued with my duties.”

11. There is a later factual report dated 3 June 2014. The investigator again interviewed Mr Nolan. It is recorded that Mr Nolan made one change to his statement at [13], saying that he was “now unsure what was said at the time, and has removed his verbatim quote and simply referred to there being a conversation between the parties”. The investigator continued, saying “Mr NOLAN remains adamant that he witnessed the alleged assault by patient GW on the claimant”. The investigator referred on this occasion to the CCTV and the statement of Mr Rollans dealing with it. The investigator noted Mr Rollans’ assertion that “CCTV footage does not show any physical contact between the claimant and patient GW”. It referred to “verbal interaction which occurred at about 20.14 on the subject date”, and said that it “did not show any physical contact between the claimant and patient GW”.

12. There is a document headed “Excerpt from Clinical Notes for Patient GW relevant to Phelan’s Claim Prepared Heather Thomson”. It contains two entries which are attributed to the worker:

    “20.3.142000          Nursing. Very untidy man looking older than stated age, delusional + + and a bit agitated PRN Olanzapine offered, and taken ./c (with) good calming effect, diet (tick) evening meds as Rx (C Phelan RN)

    2100Addit- (G) deteriorated, agitated + + has had evening meds, hostile, has just held it together till now, very angry muttering abusive to me ‘when you give me antipsychotics you make me sick’ poking me in the chest gritting teeth etc PRN Olanzapine taken (Phelan RN)”

13. Ms Diprose, in her statement dated 28 April 2014 at [35], postulated that the last entry at 2100 was made “between 9.30pm and 9.40pm”, after the incident involving the worker and Mr Wheaton in the nurse’s station, and before Ms Diprose called the worker into her office.

THE APPELLANT’S SUBMISSIONS

1. The employer states that it “repeats and relies” on relevant submissions made by its counsel at the arbitration hearing. It then sets out references to the worker’s statements (undated at [19]–[23] and 11 August 2016) dealing with the incident, and also the claim form dated 1 April 2014 and IIMS Notification Form completed on 21 March 2014. It refers to Mr Nolan’s statement dated 2 June 2014, and the sketch plan which was attached to his statement. It refers to the CCTV, and the statement of Mr Rollans dealing with the CCTV.

2. The employer’s submissions refer to the decision of Roche DP in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston), quoted and applied by the President Keating DCJ in Davis v Ryco Hydraulics Pty Ltd [2017] NSWWCCPD 5 (to which the employer refers). Roche DP in Raulston at [19]–[20] said:

   “19.   First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):

   (a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.

   (b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.

   (c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.

   20.    The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):

   ‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”

3. The Amended Application to Appeal does not indicate which submissions relate to which grounds. The grounds themselves are framed as submissions. This causes difficulty in marrying up the grounds with submissions in support of them.

Grounds Nos 1, 3 and 4

1. These grounds effectively raise the same issue, whether it was open to the Arbitrator to make the finding of injury on 20 March 2014. The grounds I have described as 1 and 3 more specifically deal with the Arbitrator’s conclusion, going to the extent to which the view of the relevant corridor in the CCTV was obscured. This is relevant to whether events (particularly the assault) could have occurred, without being visible on the CCTV. The submissions do not indicate which specific ground they relate to, and in the circumstances, it is convenient to deal with these grounds together. The Arbitrator’s reasons on this issue are found at [191]–[202]:

   “191. Patient GW had been allocated room 103, which is on the left-hand side of the corridor looking from the direction of the camera towards the Nurses’ Station. Situate[d] adjacent or next to room 103 is an access door described as ‘Patient WC/Shower’, which appears larger than the standard size door but is the width of doors seen in hospitals. This door opens outwards into the corridor and at 90 degrees to the wall of the corridor as shown in the photographs tendered by Ms Wood.

   192. Adjacent to or next to the ‘Patient WC/Shower’ door is a hand basin and taps enclosed within a small area partitioned by floor to ceiling walls at an angle of 90 degrees to the corridor wall extending into the corridor but not appear to be as far as the ‘Patient WC/Shower’ when opened at 90 degrees. The hand basin walls are painted the same colour as the corridor walls.

   193. Viewing the CCTV footage at the arbitration hearing on 19 January 2017 with Ms Wood and Mr Doak established that the partitioning wall of the hand basin could not be seen when the ‘Patient WC/Shower’ door was in the open position. It was also difficult to distinguish the partitioning walls of the hand basin because of the identical paint colour matching the corridor wall paint.

   194. View of the hand basin partitioning wall is blocked by the ‘Patient WC/Shower’ door when open, and any activity, in my view, between the ‘Patient WC/Shower’ door in the open position and the hand basin would not be captured because movement is blocked by this door.

   195. The CCTV footage and the photographs show the Nurses’ Station.

   196. Persons standing or sitting in the position in the Nurses’ Station, which is partitioned by glass windows, where Mr Nolan was on the evening as indicated by his sketch plan, would be able to view the eastern corridor including the hand basin.

   197. It appears the respondent’s declinature of liability was based upon Mr Rollans’ viewing of the CCTV footage without considering that the camera would not capture movement between the open ‘Patient WC/Shower’ door and the hand basin where the incident between patient GW and Mr Phelan occurred.

   198. I accept Mr Phelan’s evidence, corroborated by Mr Nolan’s evidence, that patient GW assaulted him and was abusive towards him on the background of a patient considered by NUM Diprose and Registered Nurse Nolan to be unwell, psychotic, delusional and paranoid.

   199. Mr Phelan immediately after the assault presented to the Nurses’ Station in an emotional and agitated state saying he had been assaulted, demonstrating the manner of the assault by poking Mr Wheaton in the chest.

   200. Mr Nolan said that Mr Phelan seemed very anxious and was in ‘fight or flight mode’, this opinion being offered by a very experienced registered nurse specialising in the field of psychiatry.

   201. NUM Diprose came to the Nurses’ Station at the time Mr Phelan was poking Mr Wheaton in the chest. She said the situation was highly emotional.

   202. I find that Mr Phelan was assaulted in the course of his employment by patient GW on 20 March 2014.”

1. The employer submits that the Arbitrator’s findings about the CCTV are so outweighed by the lack of evidence in support of them and by the other evidence that they cannot stand. The employer refers to photographs. Numbered photographs are attached to the supplementary factual report dated 3 June 2014. There are larger black and white copies of these attached to the file. The employer refers to photograph numbered ‘2’. It submits that “the area in the vicinity of the sink that might have been obscured behind the Patient WC/Shower door (if any) would have been fairly small”.

2. The employer refers to the photograph numbered ‘1’. It submits that the Arbitrator “assumed the motion sensor would have been prevented from ‘seeing’ the alleged incident”, if it occurred behind the cover of the door, “based on photographs taken at a lower height” than the camera and sensor (which in the photograph numbered ‘1’ are mounted on the ceiling). It submits that, “without direct evidence of the area covered by the motion sensor and camera”, it was not “open to the Arbitrator to speculate about those matters based solely on his viewing of the copy photographs”.

3. The employer submits that the worker did not, in his statements, claim form or IIMS Notification Form, refer to the Patient WC/shower door being open at the time of the incident. Mr Nolan’s statements did not refer to this. It was “not open to the Arbitrator to find that the door was open and that the alleged incident took place wholly obscured” behind it.

4. The employer submits that, if the Patient WC/shower door was wholly or partly open, there was no evidence “about the extent of any area that might have been obscured”. Therefore, it was not open “to find that the alleged incident was completely hidden from the camera”.

5. The employer submits that Mr Rollans’ unchallenged evidence was that “any breaks in the footage in the corridor were due to there being no movement in the corridor at the time”. If the incident occurred behind the open door, this does not explain how the worker and GW came to be there, “without their movement into that area being recorded”. Similarly, the footage does not show the worker running back to the Nurse’s Station after the incident (the worker’s undated statement at [23]).

6. The employer submits that the only interaction on the footage, involving the worker and GW, was at about 20.14 (21.14 daylight saving time). It shows the worker approaching GW, having a brief conversation, and slowly walking after GW, towards the Nurse’s station. This is inconsistent with the allegations.

7. The employer submits that the Arbitrator’s finding, that the evidence of Mr Nolan was corroborative of the worker’s version of the incident, was erroneous. Mr Nolan’s version was inconsistent with the version given in the worker’s second statement, dated 11 August 2016. This raised issues about the reliability of Mr Nolan’s evidence.

Ground No 2

1. The employer makes no submissions relevant to this ground.

Ground No 5

1. The employer’s submissions on the adequacy of the reasons is described as relating to the reasons for the findings referred to at [11], [12] and [13] of its appeal document. These findings went to the evidence about the extent to which activity depicted in the CCTV coverage was restricted, in the vicinity of the Patient WC/shower door and the hand basin. It additionally went to the finding that GW assaulted the worker, on a background of being “unwell, psychotic, delusional and paranoid”. The only two specific submissions by the employer, going to the adequacy of the reasons, deal with different matters.

2. The employer makes a general submission that “the Arbitrator did not provide any, or any proper reasons for making the findings that he did, either expressly or implicitly”. The employer submits in respect of two specific alleged deficiencies. Firstly, at [46] it submits:

   “Other than to assume that the alleged incident must have occurred at some time other than 20.14 (as time recorded in the footage), the Arbitrator did not give any reason for not accepting the [employer’s] submission that the only possible interaction shown on the footage between the [worker] and patient GW was wholly inconsistent with the incident alleged by the [worker] and did not support a finding of psychological injury.”

3. Secondly, at [47] the employer, after referring to Mr Nolan’s evidence, submits:

   “The failure of the Arbitrator to give any reasons why he accepted Nolan’s evidence without reservation and then used that evidence to support the [worker’s] evidence (despite the fact that the [worker] had changed his evidence) constituted an error.”

THE WORKER’S SUBMISSIONS

Grounds Nos 1, 3 and 4

1. The worker refers to multiple matters which he submits support the proposition that not all movement in the relevant corridor was caught by the CCTV camera:

   (a)     The movement sensor does not pick up movement coming from the nurse’s station to a significant part of the way down the corridor, towards the camera. There are unexplained gaps in the footage, for example just before and after 20.14 (9.14 pm Daylight Saving Time).

   (b)     The sink hob is clearly recessed, and its surrounds cannot be observed from the camera.

   (c)     The hospital sized Patient WC/shower door “is in a wide open position almost completely throughout the video footage”. It further obscures the area of the sink hob.

   (d)     The evidence of lay witnesses on duty confirms that the worker “approached the nurses’ station in an extremely agitated state and reported what had happened, re-enacting what had occurred”. There is no evidence of this in the CCTV footage.

   (e)     There is no evidence of the dimensions of the recessed wall. The footage clearly discloses that the “recessed area together with the open shower door are sufficient to obscure the area covered by the CCTV camera, including the entrance to patient GW’s room which is adjacent to the sink hob”. At one point in the footage, after 20.14 (9.14 pm NSW time):

   “… the witness RN Nolan is seen standing in the corridor and is clearly seen to take a step back while observing something occurring either in the vicinity of the door to the patient’s room or the sink hob. Whatever was occurring in the area is not caught by the footage, confirming that the area was not able to be caught by the camera but visible by Mr Nolan.”

   (f)      Liability “was clearly declined on the basis of the evidence of Mr Rollans”. His observations “did not take into account the absence of CCTV coverage of the whole of the area”. Mr Rollans does not explain the width or depth of the recessed area. He does not explain the gaps in the coverage.

2. The worker submits that the different version of the incident in his later statement dated 11 August 2016 should be viewed in the context of “an extremely psychologically unwell witness” attempting to “rationalise the absence of CCTV footage of that event”. The worker did “not resile from his allegation that at the time he believed he had been ‘poked in the chest’.”

3. The worker submits that he gave a “consistent account to his general practitioner” on 25 March 2014.

4. The employer is critical of the evidence of Mr Nolan. Mr Nolan clearly stated that he witnessed the event, the employer adduced no evidence to the contrary. The evidence of Mr Nolan “was not challenged”. The employer arranged for Mr Nolan to attend the third day of the hearing in Sydney, but did not call him (19.1.17 T43.4–10, 82.3–8). Mr Nolan’s sketch (to which the employer referred) is a rough drawing, not to scale and “not intended to give an exactly fixed location of the incident”.

5. The worker submits that there was “compelling evidence that the event relied upon occurred”. The allegation was supported by Mr Nolan, who witnessed it; there was contemporaneous reporting to others. The evidence supporting the allegation outweighs the evidence relied on by the employer, the CCTV, which “is incomplete and such absence of evidence can on a common sense view be explained”. The worker submits that it was “open to the Arbitrator to accept on the evidence available that on the balance of probabilities the event occurred and no error of law or of fact or law is established”.

Ground No 2

1. Ms Diprose described the patient GW as “a bit psychotic” and said that “he went into a delusional speech which did not make a lot of sense”. Mr Nolan described the patient as “unwell, delusional and paranoid”. The worker argues that it was open to the Arbitrator to accept that this was “the clinical disposition of the patient”. The contemporaneous accounts given to Mr Wheaton and Ms Diprose, and the evidence of Mr Nolan, provide “compelling supportive evidence” of the incident. The “finding of fact that on the balance of probabilities the incident occurred was open to the Arbitrator”.

Ground No 5

1. The worker submits that the Arbitrator “clearly identified the difficulties in accepting the CCTV footage as evidence that the incident did not occur”. He “clearly and succinctly summarised the evidence” supporting the worker’s case. He gave reasons why the employer’s evidence was “unsatisfactory”, and decided that the worker had discharged the onus of proof. His reasons were “adequate and compelling”.

2. The employer on appeal challenges the lack of reasons for the Arbitrator’s acceptance of the evidence of Mr Nolan. The worker submits that Mr Nolan’s evidence was not the subject of challenge.

CONSIDERATION

Grounds Nos 1, 3 and 4

1. There was a plethora of evidence which supported the allegation of injury on 20 March 2014. There was the worker’s original statement. The worker’s second statement post-dated the employer’s insurer having disputed the allegation of injury, on the basis that it was disproved by the CCTV. The way in which the second statement at [3] dealt with the injury was consistent with the submission on the worker’s behalf, that it was a rationalisation. In the second statement the worker continued to say that “[a]t the time I felt I had been poked in the chest”.

2. The worker’s original description of the incident was consistent with the statement of Mr Nolan. The employer did challenge the acceptability of Mr Nolan’s evidence (19.1.17 T59.33–62.29), essentially on the basis that it was inconsistent with the CCTV (19.1.17 T62.11–16). He was also criticised for having the positions of the worker and GW the wrong way around in a sketch plan (19.1.17 T61.26–62.27). It was also suggested that Mr Nolan’s view of any event may have been obscured by the toilet door (19.1.17 T62.17–21). According to the investigator, Mr Nolan remained “adamant” that he had witnessed the assault.

3. The multiple lay statements, attached to the factual investigation report, are consistent with the contemporaneous reporting of the incident to various people at the nurses’ station. They are consistent with the worker’s original statement, and Mr Nolan’s statement. Mr Wheaton’s statement described the worker as “ranting on about the patient”, while pushing his finger into Mr Wheaton’s chest saying “What I am doing to you is what he did to me.” The statements of Ms Taylor and Ms Diprose corroborate the incident involving the worker and Mr Wheaton. It was not suggested that the evidence of Mr Wheaton, Ms Diprose and Ms Taylor was unreliable or should not be accepted. The IIMS Notification Form, which describes the worker as the “Notifier” and is dated 21 March 2014, is consistent with the description in the worker’s original statement and the statement of Mr Nolan. The entry in Dr Johnson’s records on 25 March 2014 is consistent, as is the claim form dated 1 April 2014. 

4. The employer’s submissions on appeal concern themselves primarily with whether it was possible that the incident occurred, given the CCTV footage. The Arbitrator was required to consider the evidence overall, the lay evidence, the documentary evidence and the CCTV, in determining whether the worker had discharged his onus, on the probabilities, of proving ‘injury’. I have viewed the CCTV footage. The Patient WC/Shower door was open for much of the time. As a matter of common sense, it had the capacity to impede the view of things on the other side of it.

5. The basin area, which was near the entrance to room 103 where GW was housed that evening, was recessed. The worker’s submission that “the recessed area together with the open shower door are sufficient to obscure the area covered by the CCTV camera, including the entrance to patient GW’s room which is adjacent to the sink hob”, is correct. At about 20.26 on the CCTV (9.26 pm Daylight Saving Time) Mr Nolan can be seen standing in the corridor looking towards the sink area and the entrance to room 103. He appears, as the worker submits, to be observing something which cannot be seen on the footage. I accept the worker’s submission that whatever was occurring was “not able to be caught by the camera but visible by Mr Nolan”. This passage of the footage was discussed by the Arbitrator and counsel (19.1.17 T36.8–37.15).

6. The employer submits that there was “unchallenged” evidence from Mr Rollans that “any breaks in the footage of the corridor were due to there being no movement in the corridor at the time the footage was not being recorded”. There were passages in the submissions which suggested that there was an issue raised regarding whether the camera was invariably recording if there was no movement in the corridor (see 19.1.17 T78.28–81.11). Reference was made to the absence of footage of the worker “in a very agitated state”, going to the nurse’s station, although this was consistent with the evidence of not only the worker, but also Mr Nolan and Mr Wheaton (19.1.17 T80.16–81.6). The Arbitrator did not, in his reasons, rely on this alleged deficiency in the CCTV coverage.

7. The evidence about the CCTV indicated that it does not record everything which happens in the corridor. There is a recessed area (in the vicinity of the entrance to GW’s room and the sink area) which it does not record. The coverage of the CCTV could be further impeded when the Patient WC/shower door was open. The Arbitrator’s reasons at [191]–[202] described the layout of the relevant area, and the difficulties with CCTV coverage not extending to all areas of the corridor, all the time.

8. The Arbitrator at [159]–[182] of his reasons set out, at length, the lay evidence from the worker, Mr Nolan, Mr Wheaton and Ms Diprose. He referred to the employer’s reasons for disputing the claim, set out in its s 74 notice. He referred to Mr Rollans’ analysis of the CCTV footage.

9. The Arbitrator’s reasoning is quoted at [45] above. His finding that the CCTV footage would not capture movement between the open Patient WC/Shower door and the hand basin was open on the evidence. It was consistent with the contents of the CCTV footage. The effect of this factual finding was that the CCTV footage did not disprove that the injury occurred. The worker’s undated statement at [21] indicated that the incident occurred when GW “lept [sic] out from behind the sink hob”. The lay evidence accepted by the Arbitrator, not only of the worker but also of other nursing and managerial staff of the employer, was consistent with the occurrence of the injury.

10. In Shellharbour City Council v Rhiannon Rigby [2006] NSWCA 308 Beazley JA (Ipp JA agreeing, and Basten JA agreeing subject to certain remarks) said at [144]:

    “Questions of the weight of evidence are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of evidence that some error must have been involved.”

11. In Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 (Heggie) Basten JA (Ward JA agreeing) at [31], dealing with the role of a Presidential member on an appeal said:

    “The criticisms made by the Deputy President of the Arbitrator’s reasons were restricted to questions of fact and, in particular, factors which he said should have been taken into account but were not. For reasons given above, these matters did not constitute relevant ‘errors’ for the purpose of s 352(5). Accordingly, there was no basis for the Deputy President to intervene. That he may have taken a different view of some facts to that of the Arbitrator did not relevantly demonstrate ‘error’ for the purposes of s 352(5). The Deputy President therefore took an unduly expansive view of the scope of the appeal and in that respect erred in point of law.”

12. Sackville AJA, in the same case at [178], said:

    “The Deputy President preferred a different approach, but his preference did not establish that the Arbitrator’s decision was affected by an error of fact.”

13. The approach taken by the Arbitrator, on all of the evidence, was available to him. The employer has not succeeded in demonstrating ‘error’ as described by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whiteley Muir) and applied in Raulston. Other probabilities do not so outweigh the Arbitrator’s conclusion, that it can be said that his conclusion was wrong. Even if I had a preference for a conclusion different to that arrived at by the Arbitrator, this would not represent a basis for overturning the decision. It follows that grounds nos 1, 3 and 4 are rejected.

Ground No 2

1. This ground alleges error by the Arbitrator in finding that the patient GW assaulted and was abusive towards the worker, on the background of being considered by Ms Diprose and Mr Nolan to be unwell, psychotic, delusional and paranoid (reasons at [198]). There are no specific submissions by the employer which deal with this ground. It may be that the ground is intended to relate to the finding of the assault, in which case it is largely dealt with above. The worker’s submissions, relating to Ms Diprose’s and Mr Nolan’s impressions of GW’s mental state, are referred to at [62] above.

2. The Arbitrator’s acceptance of the incident involved acceptance of the evidence of the worker, particularly in his initial statement, and of Mr Nolan, supported as it was by the other lay evidence of Mr Wheaton, Ms Diprose and Ms Taylor. The Arbitrator’s description of GW’s mental state was clearly based on acceptance of the evidence of Mr Nolan and Ms Diprose, two long term mental health professionals in the employer’s employ, who had contact with GW on the night in question. There is no basis for concluding that this aspect of the Arbitrator’s findings involved error. The finding challenged by this ground was open on the evidence. Ground No 2 is rejected.

Ground No 5

1. The grounds challenging the adequacy of the Arbitrator’s reasons, described at [15] of the employer’s submissions, go to the findings referred to at [11]–[13] of the submissions. These are grounds dealt with as grounds nos 1, 2 and 3 above. These findings are:

   (a)     that activity between the open Patient WC/shower door and the hand basin would not be captured on CCTV because movement is blocked by this door;

   (b)     that GW assaulted and was abusive towards the worker on the background of a patient that Ms Diprose and Mr Nolan considered to be unwell, psychotic, delusional and paranoid, and

   (c)     that the respondent’s declinature of liability was based on Mr Rollans’ viewing of the CCTV footage without considering that the camera would not catch movement between the open Patient WC shower door and hand basin where the incident occurred.

2. There is then a general submission at [37] of the employer’s submissions, that the Arbitrator did not provide any, or any proper reasons for making the findings that he did, either expressly or implicitly.

3. There are further submissions at [46]–[47] of the employer’s submissions, that the reasons were inadequate in that they:

   (a)     “did not give any reason for not accepting the [employer’s] submission that the only possible interaction shown on the footage between the [worker] and the patient GW was wholly inconsistent with the circumstances of the incident alleged”, and

   (b)     “failed to give any reasons why [the Arbitrator] found that Nolan’s evidence was corroborative”.

1. The Commission’s obligation to give reasons has a statutory basis: s 294(2) of the 1998 Act, Pt 15 r 15.6 of the Rules. The President Keating DCJ, in NSW Police Force v Newby [2009] NSWWCCPD 75 (Newby) at [149]–[151] dealt with the content of the duty:

   “149. To succeed in having the Arbitrator’s decision set aside on this ground, the Police Force must demonstrate not only that the reasons are inadequate, but that their inadequacy discloses that the Arbitrator failed to exercise his statutory duty to fairly and lawfully determine the application (YG & GG v Minister for Community Services [2002] NSWCA 247). Reasons must set out the judge’s (Arbitrator’s) reasoning process and merely incorporating counsel’s submissions is not appropriate (Sourlos v Luv a Coffee Lismore Pty limited & anor [2007] NSWCA 203 at [30]).

   150. The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker (Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSWWCCPD 6). It is not necessary for an Arbitrator to refer to every piece of evidence (Yates Property Corporation Pty Limited (in Liq) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424).

   151. When considering the adequacy of the reasons the decision must be read as a whole (Beale v GIO (NSW) (1997) 48 NSWLR 430 at 443–444 (‘Beale’)). A Presidential member on review is not required to comb through the Arbitrator’s findings and reasons in search of error (Minister for Immigration and Multicultural Affairs v Wu Shu Liang [1996] HCA 6; (1996) 185 CLR 259). In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (‘Soulemezis’) McHugh JA (as he then was) stated at 280:

   ‘If an obligation to give reasons for a decision exists its discharge does not require lengthy or elaborate reasons: Ex parte Powter; Re Powter (1945) 46 SR (NSW) 1 at 5: 63 WN 34 at 36.’”

2. The challenge described at [80(a) and (c)] above goes to the finding that activity between the open Patient WC/shower door and the hand basin would not be captured on CCTV, because movement is blocked by this door. This topic, and how Mr Rollans described the CCTV footage, is dealt with in the Arbitrator’s reasons at [186]–[197]. The Arbitrator, at [191]–[194], describes the area in some detail. It is not submitted that the description is inaccurate. The Arbitrator’s conclusion, on the extent to which the view of the relevant area was obscured, is stated to be based on viewing the CCTV footage with counsel at the arbitration hearing. The transcript records various discussions between counsel and the Arbitrator about what is revealed on the footage (19.1.17 T77.1–80.7, 81.31–83.10, 87.8–89.7). At one point the following exchange between the Arbitrator and the employer’s counsel occurs:

   “ARBITRATOR: … The real issue in this case is this sink. The door open and the sink being in line – which is at 90 degrees to the wall, and that clearly is protected by the - - -

   MR DOAK: It’s not shown by the camera, Arbitrator.

   ARBITRATOR: Even when there’s movement in the area, it’s not shown.

   MR DOAK: What is it - - -

   ARBITRATOR: Obviously it wouldn’t be depicted.” (19.1.17 T88.4–16)

3. The above is consistent with the CCTV footage. For reasons given above, the extent to which the area, in the vicinity of the sink and the Patient WC/shower door, is obscured is largely a matter of common sense and observation of the footage. Grounds nos 1 and 2, and the Arbitrator’s stated reasons for the findings he made, are discussed above. The Arbitrator’s reasons are sufficient, consistent with authority.

4. What was considered in the employer’s denial of liability, and Mr Rollans’ description of what the CCTV footage showed, are essentially apparent from the s 74 notice itself, and Mr Rollans’ statement. The Arbitrator’s observation regarding what Mr Rollans considered, when viewing the CCTV footage, was not determinative of the matter. The CCTV footage spoke for itself, and had to be considered with the other evidence, which is what the Arbitrator did. The Arbitrator’s reasons, for the finding that he made regarding the utility of the CCTV footage, are referred to above. The Arbitrator’s observation, about what Mr Rollans considered, could not affect the result of the matter, and could not constitute appealable error (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141). The challenge to the Arbitrator’s reasons on this point is without merit.

5. The challenges to the Arbitrator’s reasons, described at [82] above, also cannot be sustained. That at sub-paragraph (a) to some extent misses the point. It was inherent in the Arbitrator’s findings, regarding the CCTV, that there could have been interaction between the worker and GW, which was not shown on the footage. The worker did not concede that the incident on which he relied was that depicted, at least in part, at about 8.14 pm (9.14 pm Daylight Saving Time) on the CCTV (19.1.17 T7.22–9). This required consideration by the Arbitrator of the evidence as a whole, to determine whether the worker had discharged his onus of establishing the occurrence of the injury. This the Arbitrator did, and he gave reasons for his conclusions.

6. The challenge at sub-paragraph (b) is difficult to understand. The employer submits that the Arbitrator failed to give “any reasons” for finding that the evidence of Mr Nolan was “corroborative” of the worker. The evidence of the worker, in his first statement, was that from the time he received GW that night, GW “was aggressive and dismissive (verbally)” (at [17]). The worker’s evidence was that GW “lept [sic] out from behind the sink hob … and started verbally abusing me and poking me in the chest” (at [21]).

7. The evidence in Mr Nolan’s statement dated 2 June 2014 was that, from the time of his transfer on 20 March 2014, GW “was very unwell … delusional and paranoid” (at [11]). Mr Nolan stated at [12]:

   “… GW suddenly appeared in front of [the worker] and I saw that GW was poking at [the worker] in the chest … I could tell that GW was saying something but I couldn’t hear the words … His actions towards [the worker] appeared to be accusatory. The incident did not continue very long, but there were a number of pokes to the chest involved.”   

8. It is not apparent what further reasons were required, for describing Mr Nolan’s evidence as “corroborative”. If this submission is seeking to allude to the worker’s statement dated 11 August 2016 at [3], that statement has already been referred to above. As is noted, both in the worker’s submissions and above, the worker in that statement continued to say that, at the time of the incident, he felt he “had been poked in the chest”. The Arbitrator’s description of Mr Nolan’s evidence as “corroborative” was self-explanatory.

9. Overall, the Arbitrator’s reasons set out the relevant evidence fully, and adequately explained why he arrived at his conclusions. The challenge, in ground no 5, to the adequacy of the Arbitrator’s reasons fails.

10. It follows that the employer’s appeal in matter no A1-4380/16 fails.

THE WORKER’S APPEAL – NO A2-4380/16

THE GROUNDS OF APPEAL

1. The worker notes that there was no issue that he “suffered injury deemed to have occurred as a consequence of the investigation and determination of alleged complaints made against him by two un-identified co-workers”. The submissions state that the only issue was that the employer’s actions were reasonable actions “with respect to discipline within the meaning of S 11A and that the [worker] was thereby disentitled to compensation”. “The complaints were said to be in respect of the [worker’s] care of a particular patient on 29 January 2013.”

2. On this appeal the worker accepts that there is no issue that the relevant actions of the employer were in respect of ‘discipline’, and that such actions were the whole or predominant cause of the psychological injury deemed to have occurred on 15 April 2013. The sole issue pursuant to s 11A(1) is whether the employer’s actions were ‘reasonable’.

3. The worker raises a single ground of appeal:

   “The decision of the Arbitrator is affected by error of fact in determining that the injury resulted from reasonable action taken by the Employer in respect of discipline and pursuant to S 11A no compensation was payable.”

THE WORKER’S SUBMISSIONS

1. The worker submits that the employer bore the onus of establishing that its conduct was ‘reasonable’. The employer’s entire conduct, from receipt of the first allegation to determination of the investigation, was causative of the relevant injury, and “therefore to be under scrutiny in respect of the reasonableness of the actions”. The worker’s submissions set out a number of alleged deficiencies in the employer’s conduct:

   (a)     The letter from Mr Shaw (Network Manager Mental Health Richmond Clarence Network) to the worker dated 8 February 2013 set out the conduct the subject of the complaint, said to have occurred on “the evening shift of 29 January 2013”. The only letter of complaint in evidence, addressed to Mr Shaw, was dated 29 February 2013. It is apparent that a verbal account was the “only first hand account of the conduct that the Employer had” when the letter dated 8 February 2013 was sent.

   (b)     There were allegedly two written complaints but only one is in evidence.

   (c)     The worker was not made aware why the matter was “escalated to Mr Shaw, instead of being dealt with by NUM 3” (nursing unit manager 3).

   (d)     “The investigation was referred to as a ‘fact finding process’ and ‘preliminary investigation’ and as such the names of the complainants were not disclosed ‘at this time’.”

   (e)     No witnesses were interviewed prior to the decision. This included “at least one co-worker who would have witnessed the conduct and could have verified the [worker’s] version of events”.

   (f)      The worker was not interviewed. This was “contrary to the requirements of the Area Policy and Procedure Plan-Disciplinary process”.  

   (g)     The worker was not provided with the written complaints, and could not address them for any inconsistency.

   (h)     The employer’s failure to identify the complainants limited the worker’s ability to adequately address whether those people were in a position to accurately report the worker’s conduct.

   (i)      The employer’s reference to several complainants was “misleading”.

   (j)      An investigator was not appointed.

   (k)     The appellant’s explanation of an allegation that a patient had urinated on her bed, and that he failed to act, was “plausible and with proper investigation ought to have been dismissed”.

   (l)      Leaving the final result of the investigation in an unsealed letter in a public place was improper, and resulted in a lack of confidentiality.

   (m)   There was no evidence of how the investigation was conducted. “It appears from the statement of Ms Bernard that the ‘fact finding’ consisted of merely considering the [worker’s] response to the allegations and the two letters of complaint, without any further steps to establish the veracity or otherwise of those complaints.”

2. The worker refers to Irwin v Director-General of School Education (unreported, Compensation Court of NSW, Geraghty J, No 14068 of 1997, 18 June 1998) (Irwin) and Heggie at [59]. The worker submits that the “entire conduct” of the employer, from dealing with the first complaint to the end result, was not reasonable. There was an absence of documentation that “ought to have been adduced” to support the defence maintained by the worker. The worker was “not afforded due process”. On “all the evidence, the compelling conclusion is that the Employer has failed to discharge the onus of proof in establishing its actions were reasonable”.

THE EMPLOYER’S SUBMISSIONS

1. The employer submits that the Arbitrator’s finding on reasonableness was “open”. The employer submits that the worker does not identify grounds of appeal, but rather sets out a number of factual matters (those summarised at [96] above) and matters referred to in the submissions (the matters referred to in the preceding paragraph). The employer submits that the worker seeks a re-determination on the evidence, which is “impermissible”.

2. The employer responds to the various matters set out in [96] above as follows (using the same numbering):

   (a)     Error is not identified. The Arbitrator observed that the only complaint was oral at the time. The subject matter made a response necessary. The Arbitrator noted that there was no submission that the letter to the worker did not accurately set out the allegations.

   (b)     Error is not identified.

   (c)     The worker’s submissions do not identify a ground which identifies error based on this.

   (d) This matter was addressed in the Arbitrator’s reasons at [137]. The worker does not identify error in the Arbitrator’s finding.

   (e)     This matter was addressed at [143]–[145] of the Arbitrator’s reasons. The Arbitrator’s alleged factual error is not identified.

   (f)      It was not submitted at the arbitration that the letter to the worker dated 8 February 2013 did not accurately set out the complaint allegations, or that there was insufficient information in it for the worker to respond (reasons at [138] and [145]). Error is not properly identified.

   (g)     This does not identify error.

   (h)     The submissions do not identify how failure to identify the complainants limited the worker’s ability to respond to the allegations. There was no submission that he had insufficient information to address the complaints (reasons at [146]).

   (i)      The Arbitrator dealt with this matter at [153] of the reasons. The worker does not identify how this matter affected the reasonableness of the employer’s actions, nor identify the Arbitrator’s factual error in this regard.

   (j)      The worker’s submissions do not identify the Arbitrator’s error in this regard, nor whether this matter was raised at first instance.

   (k)     The allegation that a patient had urinated in her bed was only one part of this complaint. The Arbitrator’s finding was open.

   (l) This matter was addressed in the reasons at [139]. The Arbitrator found that the manner of delivery of the letter did not affect the outcome of the investigation, or the reasonableness of the employer’s actions. The worker has not identified error in this regard.

   (m)   The evidence of Mr Shaw and Ms Bernard (Service Development Coordinator (Operations)) regarding the investigation process was referred to at length at [147]–[151] of the reasons. The meaning of being “afforded due process” is unclear. The Arbitrator clearly found that the two staff complaints and the IIMS report were considered in detail, and there was sufficient evidence for the finding which was made.

3. The employer submits that there was a finding that the worker was given sufficient information to respond, he was granted an extension of time to respond. There was sufficient evidence to support the Arbitrator’s finding that the employer’s conduct in considering and dealing with the complaints was reasonable. The worker’s submissions do not establish error in the making of this finding.

4. The worker lodged submissions in reply on 28 June 2017. It is submitted on his behalf that the matters identified at [96] above are matters which, if taken into account, establish that the employer’s conduct was not ‘reasonable’. The worker submits that the Arbitrator erred in failing to take such matters into account. Whilst the worker does not concede that the outcome of the employer’s investigation was correct, “the outcome is irrelevant to an examination of the employer’s conduct throughout the investigation process”.

CONSIDERATION

1. The worker essentially alleges that, having regard to the matters summarised at [96] above, the Arbitrator erred in finding that the employer had satisfied its onus of establishing that its relevant conduct was reasonable. The worker submits that the employer’s actions from receipt of the first allegation, to determination of the investigation, were causative of the injury deemed to have occurred on 15 April 2013, and therefore “under scrutiny” in respect of reasonableness: Heggie at [123] per Sackville AJA (Basten and Ward JJA agreeing). The employer does not submit to the contrary.

2. Sackville AJA in Heggie, after referring to a number of authorities dealing with ‘reasonableness’ in the context of s 11A(1), at [59] said:

   “The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:

   (i) A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.

   (ii) Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.

   (iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.

   (iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.

   (v) 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.

   (vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.

   (vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.” (emphasis in original)

3. The worker does not submit that the Arbitrator applied a wrong test; the decision being challenged is one of fact. The test is an objective one. Dealing with the nature of an appeal pursuant to s 352(5) of the 1998 Act in such circumstances, Sackville AJA in Heggie at [71]–[72] said:

   “71.   It is not necessary in this case to explore the precise limits of an appeal under s 352(5) of the WIM Act seeking to challenge findings of fact. However, as Roche DP pointed out in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, at [20], the observations of Allsop J in Branir Pty Ltd v Owston Nominees (No 2) need to be borne in mind, particularly (I would add) where the challenge is to an evaluative judgment such as the reasonableness of actions by an employer with respect to discipline. Allsop J said, in relation to the application of the principle in Warren v Coombes, (at [28]) that:

   ‘in [the] process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’

   72.    A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518–519, per Mason and Deane JJ.”

   And at [171]:

   “171. Thus, as the Deputy President recognised, he could conclude that the Arbitrator’s finding was wrong only if the latter had committed an error in making the evaluative judgment as to reasonableness. The Deputy President accepted that it was necessary to identify a factual error of the kind described by Barwick CJ in Whiteley Muir v Kerr …”

1. Deputy President Roche in St George Leagues Club Ltd v Wretowska [2013] NSWWCCPD 64, after referring to the discussion in Heggie of the “evaluative judgment” required in assessing ‘reasonableness’, quoted and applied the following statement from Spigelman CJ in Vines v Australian Securities and Investment Commission [2007] NSWCA 126 at [8] (excluding citations):

   “Where, as here, the relevant statutory test turns on whether or not the Court is ‘satisfied’ of a matter involving a broad evaluative judgment, then the case law indicates that the degree of restraint which an appellate court should manifest is of the same order as that applicable to a discretion, in the strict sense of that word. … A statutory provision expressed in terms of whether a decision maker is ‘satisfied’ of a particular matter is accurately characterised as conferring ‘a very wide discretion’.”

2. Many of the matters summarised at [96] above were specifically taken into account by the Arbitrator. The worker refers to the fact that only a verbal account of the alleged conduct was available to the employer, when the letter dated 8 February 2013 was sent. The Arbitrator referred to this at [124] and [145] of the reasons. The Arbitrator considered this matter, in light of the fact that there was no submission by the worker that the allegations summarised in that letter “did not accurately accord with the letter of complaint and the IIMS report”. He additionally referred to the fact that there was no submission on the worker’s part that the letter dated 8 February 2013 “was insufficient to allow [the worker] to address or respond to the allegations” (reasons at [145]–[146]).

3. The worker refers to the fact that only one of the two written complaints was in evidence. The Arbitrator accepted this as a factor in his assessment of reasonableness (reasons at [133]). The employer submits that the worker does not identify how the Arbitrator erred in this regard.

4. The worker submits that he was not made aware why the matter was escalated to Mr Shaw, rather than being dealt with by “NUM 3”. The worker’s counsel averted to this in her submissions (26.10.16 T36.27–37.1), and said that she would “come to that a little later”. She does not appear to have returned to the topic. The employer submits that the worker fails to identify error by the Arbitrator based on this matter.

5. The worker’s submissions refer, on multiple occasions, to the failure by the employer to furnish him with the complainants’ names, and written complaints, so that he could address them for any inconsistency, and address whether these people were in a position to accurately report on his conduct. The Arbitrator considered this at [137]–[138] of the reasons. The allegations were summarised in the letter dated 8 February 2013, and it was not submitted that the summary was inaccurate. It was not submitted that the summary was insufficient to enable the worker to address the allegations (reasons at [146]).

6. The worker referred to the fact that no witnesses were interviewed prior to the decision. The Arbitrator referred to this at [143] of his reasons. It was a factor of which he was cognisant in forming his conclusion on ‘reasonableness’.

7. Mr Shaw’s letter to the worker dated 10 April 2013, advising him of the result of the investigation, referred to the review of “accounts of several staff members who were present during the above incidents” (the evening shift of 29 January 2013). This appears to be the reference to “several” complainants in the worker’s submissions on this appeal at [8 xi]. The Arbitrator at [153] of his reasons accurately described this statement in Mr Shaw’s letter as “incorrect”. However, the Arbitrator went on to say that the evidence of the “two nurses” was “consistent”, and it was open to the respondent to make the findings which it did.

8. The worker submits that the employer failed to appoint an investigator. The employer submits that the worker does not identify error by the Arbitrator in this regard, “nor whether this matter was raised at first instance”. It does not appear that it was.

9. The worker submits that his response to an allegation that he failed to act in respect of the patient’s urinating on her bed was “plausible”, and that allegation ought to have been dismissed with proper investigation. The employer submits that this was only one part of the complaint.

10. The worker refers to how the letter dated 10 April 2013, setting out the employer’s decision dealing with the complaint, was delivered to him, unsealed in a public place. The employer submits that the Arbitrator dealt with this at [139] of his reasons, saying that “any breach of protocol would not have affected the outcome”. It is unclear whether [139] refers to the letter dated 10 April 2013, in addition to the letter dated 8 February 2013. The worker does not, in his submissions in reply, take issue with the employer’s factual assertion that it does.

11. The worker submits that there was no evidence of how the investigation was conducted. The worker refers to Ms Bernard’s statement, and says the fact finding apparently consisted of considering the two letters of complaint and the worker’s response. The worker submits there were no steps to establish the veracity of the complaints. The Arbitrator’s reasons at [153] noted that the evidence of the two nurses about the worker’s conduct was consistent, “and it was open to the [employer] to make the findings it did based upon the evidence”.

12. Warren Shaw’s undated statement dealt with the complaints about the worker’s care of a patient, on the night of 29 January 2013. Mr Shaw was the “Network Manager Mental Health Richmond Clarence Network”. He said that he “perused two written complaints and an IIMS report prepared by staff members”. He engaged the assistance of Helena Bernard, a “person with expertise in Workforce matters”. The two of them “looked at the matter and determined what the concerns were”. Mr Marsh wrote to the worker asking “him to give an account of his actions”. He said there was a tendency for staff to “compensate for or cover up poor care rather than report them, often for fear of retribution being ostracized their peers [sic]”. He decided not to supply the complainants’ names, but to “provide full details of the complaints”. This was a “judgment call”. He was “concerned about the potential for retribution within the ward”. He sought advice on this point, and ascertained “there was not a clear guideline”.

13. Mr Shaw said that the worker “denied the full extent of the allegations”. Mr Shaw “sought CCTV footage”, but was informed that there was “no adequate vision of the subject location”. Mr Shaw stated that he “looked at the evidence as a whole with Helena [Bernard] and decided that on the balance of probability, incidents as alleged occurred”. He issued a caution.

14. Helena Bernard gave a statement dated 24(?) May 2013. She was “Service Development Coordinator Operations”. Mr Shaw showed her the two letters of complaint. They assessed the severity of the complaint, it related to substandard nursing care of a patient, and was assessed as being “of a cautionary nature”. The nature of the complaint determined the approach, for example an independent investigator would be used if an allegation was of sexual assault. The worker “refuted all allegations”. Considering the detail in the two complaints and the IIMS report, she and Mr Shaw “felt satisfied that on the balance of probability that the incidents in fact occurred [sic]”.

15. The worker’s submissions identify difficulties with the process undertaken by the employer. The worker submits that the failure to interview him was contrary to the requirements of the Area Policy and Procedure Plan – Disciplinary Process (the Disciplinary Plan). Compliance with a policy directive is not determinative of objective reasonableness, but may be a highly material consideration: Heggie at [162]. The Disciplinary Plan provides:

    “Investigations should include an interview with the employee who is the subject of the allegation. The purpose of the interview is to give the employee an opportunity to put forward their version of facts, an explanation or mitigating circumstances.”

16. The document goes on to set out specific provisions about conducting such an interview.

17. It was accepted by the Arbitrator that Mr Shaw’s reference to the accounts of “several staff members”, in his letter dated 10 April 2013, was misleading. There are a number of other matters referred to at [96] above, which the worker submits represented deficiencies in the disciplinary process. Many of these were dealt with by the Arbitrator, in forming his view regarding the reasonableness of the employer’s relevant actions. The Arbitrator’s “evaluative judgment” was set out at [154] of the reasons, that the employer had “discharged its onus that the action taken or proposed to be taken by it against Mr Phelan was reasonable within the meaning of s 11A(1)”.

18. The Arbitrator gave reasons described at [106]–[115] above, for his view regarding a number of the matters raised by the worker, and why the employer’s actions were on balance reasonable, notwithstanding these matters. Whilst the employer did not take a statement from the worker after the complaint was made, the Arbitrator found that he was given an opportunity to respond (time for which was extended) to a description of the allegations, which was not submitted to be other than accurate. The reference to “several staff members” was misleading, but the Arbitrator considered that matter, and concluded that there was consistent evidence from two nurses, and the employer’s finding was open. A number of the matters raised by the worker are of a relatively minor nature, such as the failure to appoint an investigator (which was not required under the Disciplinary Plan), and the escalation of the matter to Mr Shaw without explanation to the worker. How the worker’s relevant correspondence was delivered to him, particularly the letter dated 10 April 2013, was unfortunate, but not of great significance in the context of the disciplinary process.

19. In Department of Education & Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 at [97] Spigelman CJ (Hodgson and Bryson JJA agreeing) at [97] said:

    “His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’.”

20. There may well be some matters in the disciplinary process that could have been dealt with differently. The Arbitrator considered the evidence as a whole, including acknowledging and dealing with various criticisms, made on the worker’s behalf, of the process. He considered the process overall, whilst acknowledging certain “blemishes”. The Arbitrator’s finding that the employer’s actions were ‘reasonable’ involved an evaluative judgment. It is a finding of fact which, consistent with Heggie at [171], should only be set aside on appeal pursuant to s 352 of the 1998 Act, on the basis of error within the principles stated by Barwick CJ in Whiteley Muir at 506 (see also Raulston at [19]–[20]). It would not be a basis to interfere with the decision, if I thought that a different outcome was preferable: Heggie at [72]. The Arbitrator’s factual finding on this issue was open to him on the evidence, considering the entirety of the disciplinary process. I am not persuaded that the worker has established relevant error.

21. For the above reasons, the worker’s appeal in matter no A2-4380/16 fails.

22. Consistent with the decision in State of New South Wales v Bishop [2014] NSWCA 354; 14 DDCR 1 per Basten JA at [26]–[28], the employer’s name is amended to “State of New South Wales”.

DECISION

1. The employer’s name is amended to “State of New South Wales”.

2. Time to appeal in A2-4380/16 is extended, pursuant to Pt 16, r 16.2(12) of the Rules, to 18 April 2017.

3. The Arbitrator’s amended decision dated 14 March 2017 is confirmed.

Michael Snell

Deputy President

13 July 2017