Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad
[2008] NSWWCCPD 139
•24 November 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| STATUS: Reported Decision: Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad (2008) 7 DDCR 193 | ||||||
| CITATION: | Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad [2008] NSWWCCPD 139 | |||||
| APPELLANT: | Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle | |||||
| RESPONDENT: | Kevin Broad | |||||
| INSURER: | Catholic Church Insurances Limited | |||||
| FILE NUMBER: | WCC3839-08 | |||||
| DATE OF ARBITRATOR’S DECISION: | 7 August 2008 | |||||
| DATE OF APPEAL DECISION: | 24 November 2008 | |||||
| SUBJECT MATTER OF DECISION: | Section 11A of the Workers Compensation Act 1987 – reasonable action by the employer. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Snell | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Astridge & Murray | ||||
| Respondent: | Maurice Blackburn Lawyers | |||||
| ORDERS MADE ON APPEAL: | 1. Paragraph 1 of the Arbitrator’s decision dated 7 August 2008 is revoked and the following order is made in its place: | |||||
| “1. The Respondent is to pay the Applicant weekly payments of compensation: (a) from 26 January 2007 to 25 March 2007 at the rate of $1,389.53 per week; (b) from 26 March 2007 to 31 March 2007 at the rate of $354.40 per week; (c) from 1 April 2007 to 30 September 2007 at the rate of $361.30 per week; (d) from 1 October 2007 to 31 March 2008 at the rate of $367.70 per week, and (e) from 1 April 2008 to date at the rate of $374.90 and continuing at the maximum statutory rate for a single worker with no dependants.” | ||||||
| 2. Paragraphs 2,3 and 4 of the Arbitrator’s decision dated 7 August 2008 are confirmed. | ||||||
| 3. The Appellant Employer is to pay the Respondent Worker’s costs of this appeal. | ||||||
BACKGROUND TO THE APPEAL
On 3 September 2008 the Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 August 2008.
The Respondent to the Appeal is Kevin Broad (‘the Respondent Worker’).
The Respondent Worker is now 59 years of age. He is married with four adult children. His wife is in employment, and there is no claim for dependants. Save for two years working as a trainee surveyor immediately after leaving school, the whole of the Respondent Worker’s working life has been spent in the teaching profession. He obtained a Teaching Certificate (Junior Secondary) from Newcastle Teachers College, and started teaching in 1970. He subsequently upgraded his qualifications to ‘four year trained’. He worked variously in both the Catholic and public school systems over the years, largely in the Upper Hunter region. He was also an accomplished tennis player, and operated a business as a self-employed tennis coach (in addition to teaching), until about 2001.
At the commencement of the school year in 2006, he commenced in the employ of the Appellant Employer, as a full-time science teacher at All Saints College, St Josephs Campus, Lochinvar. He was “contracted for one year with the opportunity of work the following year within the Diocese”. One of his classes was 8S5, described as the lowest class of year 8. There appear to have been some discipline issues with various members of this class, in particular one group of girls. He said all his “other classes were fine”, and he was “really enjoying the teaching”.
The Respondent Worker has, since 1976, lived with his family on a twenty-seven acre property in the Patterson Valley, keeping a small number of horses and cattle. As he had some experience in stock, rural fencing and agricultural plot management, he would from time to time help, before and after normal school hours, and on weekends, in building cattle yards and working on an agricultural plot being set up at St Josephs.
On 12 September 2006 two of the girls who represented a discipline problem, in two separate incidents, made remarks to the Respondent Worker, one saying to friends “don’t leave me here, he will probably rape me”, and the other “why don’t you go and be a paedophile in another school?”. The Respondent Worker reported these remarks to the principal, Mr Greaves. The first such girl apologised on the following day, the second did not. The Respondent Worker told Mr Greaves he did not want the second girl in his class, “until the issue had been resolved”. During the following week Mr Greaves told the Respondent Worker (who asked what was happening), that there had been difficulties contacting the girl’s parent.
Unbeknown to the Respondent Worker, the matter had been reported by the principal to the Diocesan Child Protection and Professional Conduct Unit (‘DCPPCU’) on 12 September 2006. A document headed “Final Report” is attached to the Reply. It reveals school personnel interviewed three female students on 18 and 19 September 2006. The matter was reported by DCPPCU to the DoCS Helpline on 20 September 2006. A number of interviews (predominantly with students) were carried out by the DCPPCU from 21 September 2006. By 25 September 2006 there had been seven such interviews.
On 25 September 2006 the Respondent Worker was teaching science to year 9 (not the problem class), when the assistant principal came in, and told the Respondent Worker he needed to go and see Ray Collins (the Assistant Director of Schools in the Diocese), in the principal’s office. The Respondent Worker was previously unacquainted with Mr Collins. The Respondent Worker withdrew from his class and went to the principal’s office, where Mr Collins gave him a letter dated 22 September 2006, signed by Wayne Tinsey (the Director of Schools in the diocese). It stated inter alia:
(i)information had been provided that contained an allegation of “reportable conduct”;
(ii)the allegation “is of a serious nature”, and therefore the Respondent Worker was to be placed on “Director’s Approved Leave for the duration of the investigation”;
(iii)Renee Tyczynski would make enquiries into the matter, and would contact the Respondent Worker “within the next week to inform (him) of details of an initial meeting with her”. Full details of the behaviour alleged would be given at the meeting. There would be an opportunity to respond to the allegations. A support person could be present at the interview;
(iv)confidentiality is an essential requirement of the process, an assurance of confidentiality would be sought from all concerned, and the Respondent Worker should “keep these matters confidential”, and
(v)access to “confidential counselling and support” could be arranged by contacting Mr Collins.
The Respondent Worker said he asked Mr Collins, after being handed the letter, what the issues were, and Mr Collins replied “I can’t tell you”, and “they are just allegations”. Mr Collins disputes this, stating he talked to the Respondent Worker for about half an hour, and told him the allegation “was of a sexual nature”. He said the Respondent Worker appeared to be in a state of shock. The Respondent Worker asked whether he had to leave immediately, and was told he did. Mr Collins confirms he told the Respondent Worker he “would need to leave the school”, and “it was best if he did not resume his classes”, although said he did not recall saying he should leave immediately. The Respondent Worker stated he found being told to leave the school “humiliating and traumatic”. He said he got his gear, went to the car park, and Mr Collins put his arm around his shoulder and walked him to his car. There were students looking out, and the Respondent Worker said “the kids assumed I was being taken away by the police”. Mr Collins’ statement disputes he led the Respondent Worker to his car with his arm around his shoulders, although says “I would have patted him on the shoulder in an offer of support”.
The Respondent Worker consulted his general practitioner Dr Holley of Dungog, on 26 September 2006, and was prescribed anti-depressants. He said he felt “total disbelief”, intense despair”, and was “totally destroyed”. There is a short report from Dr Holley dated 9 October 2007, which appears to confirm the consultation on 26 September 2006, and refers to a diagnosis of “reactive depression”.
The Respondent Worker did not resume duties at St Josephs. DCPPCU reported the allegations to the Ombudsman on 27 September 2006. The officer investigating the matter was Renee Tyczynski of the DCPPCU. There is a “Statement of Allegation” dated 28 September 2006. The allegations go to whether the Respondent Worker treated one female student (‘the student’) differently to others (for example allowing her to wear her hair down in the laboratory, allowing her to talk in class), and whether he engaged in inappropriate physical conduct in respect of the same student (for example touching her bottom and lower back area, pushing against her whilst demonstrating a science experiment). It also made allegations that on more than one occasion the Respondent Worker had had an erection while standing at that student’s desk, and that he once put his hand down his pants for twenty to thirty seconds while standing near the student’s desk. The Respondent Worker felt too unwell to travel to Newcastle to collect this document, and a representative of his Union collected it and read it to him on 28 September 2006. The DCPPCU gave some particulars of the allegations in writing on 7 November 2006.
Ms Tyczynski, and Helen Keevers (manager, DCPPCU) interviewed the Respondent Worker on 16 November 2006. The Respondent Worker was accompanied by his wife, together with Mr O’Donohue, a support person.
On 20 December 2006 the DCPPCU made a ‘preliminary finding’. None of the various allegations were sustained; two were “not sustained/ insufficient evidence”, the balance were described as “misconceived”. The Respondent Worker was dissatisfied with the preliminary findings. His support person, Mr O’Donohue, telephoned Ms Keevers on 4 January 2008 seeking access to the investigation file, prior to responding to the preliminary findings. The Respondent Worker accessed the DCPPCU file (some of it had been removed) on 26 February 2007. The delay in accessing the file appears to have been a source of frustration and aggravation to the Respondent Worker, who corresponded with the DCPPCU about this.
On 5 February 2007 Dr Wayne Tinsey, the Director of Schools of the Appellant Employer, wrote to the Respondent Worker informing him that as his contract of employment ceased on 22 December 2006, he was only to be paid Director approved leave until 26 January 2007. He was no longer eligible to receive ongoing leave. The Respondent Worker complained about this, as he had initially been informed such leave payments would continue for the duration of the investigation. It does not appear such payments were reinstated.
The ‘Final Report’ of Ms Tyczynski described the investigation as finalising on 30 April 2007. On that date Dr Tinsey wrote to the Respondent Worker informing him “the final finding for all the allegations made against you, arising from this investigation is ‘misconceived’ and therefore not reportable conduct i.e. there was a misinterpretation of what actually occurred in the complaint”. Such a finding was “not reportable to the Commission for Children and Young People (CCYP) for the purposes of employment screening”. The letter advised that, according to its legal obligations, the Appellant Employer would forward “a confidential report and a copy of the investigation file” to the Office of the NSW Ombudsman.
An investigation officer from the Office of the Ombudsman wrote to Ms Keevers of the DCPPCU on 24 August 2007. The letter recommended that, in respect of those allegations described as “grooming” (broadly, the allegations of treating one student differently), the suggested findings of “misconceived” were inappropriate, there was no evidence of “grooming”, and the finding should be “not reportable conduct”. In respect of the alleged incidents of “indecent assault” (those described as “inappropriate physical conduct” at [11] above), there should be a finding of “false”. Ms Keevers wrote to the Office of the Ombudsman on 26 September 2006, arguing in favour of maintaining a finding of “misconceived” in respect of making “special allowances” for the relevant child, but accepting a finding of “false” was to be made in respect of the allegations of indecent assault. By letter dated 15 October 2007 the Office of the Ombudsman advised Ms Keevers it accepted “the CSO’s rationale for its findings”, and was closing its file.
Ms Keevers wrote to the Respondent Worker on 8 November 2007. She advised the reviewed findings were:
(i)that you made special allowance and gave special consideration to (the student) is found to be misconceived;
(ii)that you pressed against the student when demonstrating an experiment is found to be false, and
(iii)that you put your hand on (the student’s) bottom is found to be misconceived.
There is an apparent inconsistency between the treatment of the allegation of putting a hand on the student’s bottom, when [(iii)] in the preceding paragraph is compared with the treatment of that allegation described in [16] above. Ms Keevers wrote to the Office of the Ombudsman on 7 December 2007, on this occasion noting the DCPPCU had elected to retain a finding of “misconceived” in respect of the allegation of touching the student’s bottom, and saying “The wording of our letter to you on this aspect of the findings may have been ambiguous.”
The Respondent Worker wrote to Ms Keevers on 23 November 2007, noting he had been advised of findings in respect of three allegations, when originally twelve allegations had been made. He wanted to know what had happened to the others. She advised a finding of “false” had been made in respect of the allegation of pressing against the student when demonstrating an experiment, in respect of all other allegations there had been a finding of “misconceived”. The meaning of such a finding is described as being that the allegations “were made in good faith but based on a misinterpretation of what occurred”.
The Respondent Worker had, throughout, maintained a complete denial of the behaviour alleged, and claimed the allegations were both false and malicious. He frequently wrote complaining about how the investigation was being conducted, to both the DCPPCU and to Bishop Michael Malone, the Bishop of Maitland–Newcastle. On 18 December 2007 Bishop Malone advised the Respondent Worker he would “subject the entire matter to an independent review”.
Consequently, a report was prepared by Claire Pirola Legal dated 15 February 2008. Ms Pirola reviewed the evidence relating to the complaints, and concluded the evidence from students, whilst “incorrect and/or misconceived”, was “made in good faith”. She concluded “no professional misconduct occurred”, and “no reportable conduct”. She said that to “find an allegation vexatious there would need to be evidence that the students had made the allegation falsely with the intention of harming Mr Broad”. She said there was “no such evidence present”, and accordingly “it would be erroneous to make a finding of vexatious in this matter”. Ms Pirola also said that although she had “not undertaken an assessment of the procedures in any detail”, her “scrutiny of the file did not identify any procedural flaws that would have affected the outcome of the matter”.
Bishop Malone wrote to the Respondent Worker on 20 May 2008. Bishop Malone summarised some of the outcomes of the review, and went on:
“Having considered the report and its recommendations, Helen Keevers has recommended that the appropriate finding is ‘false’ on each complaint. I concur with Ms Keevers and will be advising the NSW Ombudsman that we have determined the complaint to be false on all counts.
It is critical to understand that the term ‘false’ in this process does not equate with ‘vexatious’ or ‘malicious’. Nor does the term ‘false’ raise any issue of credibility upon any person interviewed in this particular matter.”
The letter also included the following passage:
“I would like to communicate to you that I am concerned about the impact that this matter has had upon you and your family and the time that the matter has taken to be finalised. As a result I will be engaging in discussions with the manager of the DPCCPU, and the NSW Ombudsman Office, with the intention that (in) future the complexities of a matter such as this are progressed in a more timely and efficient manner.”
The Respondent Worker lodged a claim form dated 27 April 2007. The date of injury was given as 25 September 2006, and its occurrence was described as “Teaching. Suspended owing to false and malicious allegations and mishandling of such.” The injury claimed was “Psychological Injury. Including Depression, nervous shock and R.T.S.” The Appellant Employer’s insurer (‘the insurer’) issued a section 74 notice dated 29 May 2007, disputing liability. It disputed whether the Respondent Worker had suffered compensable injury, referring to sections 4 and 11A of the Workers Compensation Act 1987 (‘the 1987 Act’). It disputed whether the Respondent Worker was entitled to weekly compensation, or medical expenses pursuant to section 60. In response to a request by the Respondent Worker for review of its decision, the insurer on 27 November 2007 maintained its denial of liability.
The Respondent Worker lodged an Application to Resolve a Dispute (‘the Application’) on 22 May 2008. The date of injury was pleaded as “25/9/06 to 7/9/07”, the injury was described as “Psychological”, and the description of its occurrence referred the reader to the statutory declaration attached to the Application. The Reply described the issues as being “as per dispute notice(s)” attached to the Application. The matter came on for arbitration hearing on 18 July 2008. Both parties were legally represented. No oral evidence was adduced. After hearing submissions, the arbitrator reserved his decision.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 7 August 2008 records the arbitrator’s orders as follows:
“1. The Respondent is to pay the Applicant weekly payments of compensation:
a. From 26th January 2007 to 25th March 2007 at the rate of $1,389.53 per week
b. 27th July 2007 to 30th September 2007 at the rate of $361.30 per week
c. From 1st October 2007 to 31st March 2008 at the rate of $367.70 per week
d. From 1st April 2008 to date at the rate of $374.90 and continuing at the maximum statutory rate for a single worker with no dependants.
2. Pursuant to Section 56 such award is conditional upon the Applicant supplying the employer medical certificates upon a monthly basis.
3. The Respondent is to pay the Applicant’s Section 60 expenses upon production of accounts and/or receipts and/or HIC Notice of Charge.
4. The Respondent is to pay the Applicant’s costs as agreed or assessed. I certify the matter is complex in accordance with Item 4 of Table of Schedule 6 and specify that an uplift of 25% applies for the reasons set in my Statement of Reasons.”
The accompanying Statement of Reasons set out matters that were common ground. It was agreed the Appellant Employer bore the onus under section 11A, that the decision of the school principal that the matter be investigated was reasonable, that the investigation was to be conducted in accordance with certain guidelines issued by the Office of the Ombudsman, that the interests of the child were paramount in the investigation, and that the “incident of 12th September 2006 did not cause or contribute to any injury”.
The arbitrator, at [20] to [38] of his reasons, dealt with questions of ‘injury’ and ‘incapacity’. He concluded the Respondent Worker “suffered a psychological injury in the course of his employment with the Respondent and was totally incapacitated as a result of such psychological injury from the 25th September 2006 and he remains totally incapacitated until the present time.” These findings are not challenged in this appeal.
The arbitrator rejected the defence mounted by the Appellant Employer pursuant to section 11A of the 1987 Act, his reasons for doing so appearing at [39] to [49]. He found the psychological injury was wholly or predominantly caused by the Respondent Employer’s action with respect to discipline, but that its actions of 25 September 2006 were unreasonable. The actions that led him to this conclusion were set out in the following fashion, at [47] of the reasons:
·sending a Deputy Principal to the Applicant’s class while he was in the course of teaching
·directing him to attend the Principal’s office to speak to an Assistant Director of Schools (with whom the Applicant was not acquainted)
·then being handed a letter which contained serious allegations which provided no particulars
·the refusal to elaborate on the allegations or discuss them
·the requirement that the Applicant leave the school
This finding of unreasonableness is the only aspect of the decision challenged in this appeal.
ON THE PAPERS REVIEW
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.”
The Respondent Worker submits the appeal can be dealt with ‘on the papers’, without an oral hearing. The Appellant Employer submits an oral hearing should take place. This is submitted to be due to the “reasonably complex factual matrix”, in particular an alleged psychological injury and a section 11A defence. I have all of the documentary material that was before the arbitrator, together with transcript of submissions made at the arbitration hearing. I have the written submissions of the parties on this appeal, which are comprehensive (those of the Appellant Employer are twenty-four pages in length). There is no application for the admission of fresh evidence, or the calling of oral evidence on the appeal.
Whether I proceed ‘on the papers’ is a discretionary matter (see generally Fletcher International Exports Pty Ltd v Barrow (2007) 5 DDCR 247 at [93] to [98]).
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, the submission by the Respondent Worker that the appeal can proceed to be determined on the basis of such documents, and the matters referred to above, 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The amount of compensation at issue in the appeal exceeds the sum of $5,000 prescribed in section 352(2)(a) of the 1998 Act, and the whole of the amount awarded is appealed against.
I grant leave to appeal.
DISCUSSION AND FINDINGS
The Nature of the Review Process
In Deadman v John A Gilbert Pty Limited t/as Kirklands Buslines [2008] NSWWCCPD 105 at [65] to [69] I set out a number of passages from relatively recent decisions of the Court of Appeal, dealing with the scope of ‘review’ in appeals pursuant to section 352 of the 1998 Act. I propose applying those principles in determining this appeal.
The Grounds of Appeal
As previously noted, the sole issue raised in this appeal is the appropriateness of the finding that the actions of the Appellant Employer, on 25 September 2006, in respect of discipline, were not reasonable, such that its defence pursuant to section 11A failed.
Section 11A(1) of the 1987 Act provides:
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
It was common ground that the injury relied upon was a ‘psychological injury’. The Respondent Worker’s solicitor put his case on injury in these terms (at T32.55):
“…the Applicant does not rely on the allegations per se as having caused injury. The Applicant relies on the events on and from 25 September, the mechanism by which the allegations were conveyed to him and the events that occurred thereafter”
The arbitrator put the proposition more narrowly than this, saying at [39] of his reasons:
“The Applicant’s solicitor submitted that it was not the allegations per se which caused the Applicant’s psychological injury but the Respondent’s actions on 25th September 2006 in informing the Applicant of the allegations against him.”
The arbitrator’s finding of ‘injury’ (set out at [27] above) clearly involves a finding of ‘injury’ on 25 September 2006, but does not deal with the issue of whether further injury was suffered thereafter, due to how the investigation was conducted, and the Appellant Employer’s dealings with the Respondent Worker. The arbitrator dealt with the reasonableness of the Appellant Employer’s actions (set out at [28] above), by reference to its actions on 25 September 2006 only.
The Appellant Employer has adopted the same approach, not challenging the ‘injury’ finding, and submitting that “when the course of the employer’s conduct on 25.09.06 is viewed as a whole, it was reasonable action with respect to discipline and within the meaning and intention of section 11A(1)”. The Appellant Employer relies upon the following passage of the judgment of Spigelman CJ in Department of Education and Training v Sinclair (2005) 4 DDCR 206 (‘Sinclair’) at [97]:
“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”. For this alternative reason the appeal should be allowed.”
The submissions of the Appellant Employer also refer to the following passage from the judgment of Geraghty J in Irwin v Director-General of School Education (NSWCC No 14068/97, 18 June 1998, unreported but quoted in Ritchie v Department of Community Services (1998) 16 NSWCCR 727):
“The question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of "reasonableness" is objective and must weigh the rights of employees against the objective of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
Within this more general submission, the Appellant Employer has challenged each of the ‘bullet point’ findings set out at [28] above.
Action With Respect to Discipline
The original arbitration hearing, and this appeal, have been conducted on the basis it is uncontroversial the Appellant Employer’s actions, both in its dealings with the Respondent Worker on 25 September 2006, and in its conduct of the investigation, were actions with respect to discipline, within the meaning of section 11A(1). This is consistent with the judgment of Spigelman CJ in Sinclair (2005) 4 DDCR 206, where his Honour at [35] said:
“The conclusion in Chenhall that the statutory foundation there under consideration does not extend to the investigatory process does not apply to the Act. The formulation in s11A extends to the entire process involved in, relevantly, ‘discipline’ including the course of an investigation.”
There is an obvious point of distinction between the current facts, and those in Sinclair. In Sinclair the worker (also a teacher) was advised he had been charged with certain breaches of discipline, the charges were subsequently found to be proven, and he was dismissed. In the current matter there was an investigation, the outcome of which was that none of the allegations were sustained. One might reasonably enquire what conduct of the Respondent Worker could be the subject of discipline.
In Kushwaha v Queanbeyan City Council (2002) 23 NSWCCR 339 Neilson J considered the meaning of the word “discipline” in section 11A. His Honour, after reference to some authority, and dictionary definitions, at [152] said:
“It can be seen, therefore, that the primary meaning of "discipline" is learning or instruction imparted to the learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of punishment, chastisement is secondary to the primary meaning although this word is often used in this sense in popular speech. It is this narrow meaning which weighed on my mind in Bottles’ case. However, the word used in an Act of Parliament must be given its full meaning, unless the context otherwise requires. Such a context does not appear to me to be called for in the interpretation of s 11A(1).”
It is difficult to see that the actions of the Appellant Employer were with respect to discipline, if this definition is applied. As the parties having proceeded on the basis the actions of the Appellant Employer were with respect to ‘discipline’ within the meaning of section 11A(1), I will do likewise. I do not, however, regard it as free from doubt, that it is appropriate to characterise such actions in this way.
Submissions of the Appellant Employer
The first of the ‘bullet point’ findings challenged goes to the action of sending the Deputy Principal to the Respondent Worker’s class while he was in the course of teaching. The Appellant Employer submits at that stage the allegations had not been revealed (presumably to the Respondent Worker). It is submitted there was “nothing inappropriate or sinister” in sending the Deputy Principal to the Respondent Worker’s class. “There might have been any number of reasons as to why he needed to speak to the worker, and there might have been any number of reasons as to why the worker was required to see the principal.”
The second such finding challenged is that relating to directing the Respondent Worker to speak to an Assistant Director of Schools (with whom the Respondent Worker was not acquainted). The Appellant Employer quotes from a statement of the principal, that he was “informed that Ray Collins (Assistant Director of the CSO) would be attending the school on the afternoon of 25 September 2006 to hand Kevin Broad a letter from Wayne Tinsey”. This makes it clear the decision to proceed in this way was not the principal’s. The principal goes on that he believed it would be “appropriate and common practice that the Deputy Director would be involved at that level”. The source of this belief is not identified.
The Appellant Employer makes a similar submission on this second ‘bullet point’ finding – the Respondent Worker did not at that time know of the allegations, and there may have been any number of reasons for him being required to see the Assistant Director in the principal’s office. It is submitted the fact the Respondent Worker was not acquainted with the Deputy Director is irrelevant.
The third bullet point finding relates to the Respondent Worker being handed a letter which contained serious allegations, yet being provided with no particulars. The submissions quote from a statement of Mr Collins, that the process followed was “in keeping with the procedures adopted by the Diocese in dealing with such an allegation”. It is submitted this aspect of the Appellant Employer’s actions was not unreasonable, as it was in keeping with protocol. It is submitted the purpose of the original meeting was simply to hand over the letter from Mr Tinsey, and it was at the next meeting the matter was to be discussed.
The Appellant Employer also refers to the Respondent Worker’s statement dated 17 May 2007, at [21] to [22]. Those paragraphs indicate the Respondent Worker, between 18 and 22 September 2006, started to form the view the principal was not being totally frank with him, regarding the delay in disciplining the student who had made the “paedophile” remark. He believed the girls “had got together and formulated allegations”. The Appellant Employer submits, on this basis, the Respondent Worker was “already aware, prior to the events on 25.09.06, of the allegations being made by a female student (on 12.09.06)”. I note, in passing, this submission is inconsistent with the submissions going to the first and second of the ‘bullet point’ findings.
It is also submitted, based upon the statement of Mr Collins, that the Respondent Worker was told by Mr Collins, on 25 September 2006, that the allegation was “of a sexual nature”, although “not a rape type allegation”. There was a factual issue between the parties, regarding how much information Mr Collins imparted, to which it will be necessary to return.
The Appellant Employer, going to the third ‘bullet point’ finding, quotes from a document headed ‘Child Protection in the Workplace – Responding to Allegations Against Employees, June 2004 [3rd edition]’, issued by the Office of the Ombudsman (‘Ombudsman Guidelines’) which reads:
“Employees should not have any action regarding them, for example transfer to other duties as part of a risk management process, without being informed, at least in general terms, about the allegations. These considerations may require that an employee must be notified that an allegation has been made very early in the process of some cases.”
The Appellant Employer submits the information given to the Respondent Worker on 25 September 2006 was in accordance with the above protocol. It is additionally submitted “It would have been unreasonable to have confronted the worker with any detailed allegations prior to an investigation being carried out.” The submission is also made that a more detailed document dated 28 September 2006, headed “Statement of Allegation”, particularised the allegations.
The next ‘bullet point’ finding attacked is that going to the requirement the Respondent Worker leave the school. The submission is that “It is not clear from the reasoning of the arbitrator why requiring the worker to leave the school was unreasonable given the nature of allegations.” There is a further submission the arbitrator should have accepted the evidence of Mr Collins rather than the Respondent Worker, on this point. Mr Collins’ statement said he was “reasonably confident” he indicated to the Respondent Worker he should not resume his classes, but did “not recall indicating to him that he leave immediately”.
Submissions of the Respondent Worker
The Respondent Worker submits the question of ‘reasonableness’ is an objective test (Commissioner of Police v Minehan [2003] NSWCA 239). It depends upon the intrinsic reasonableness of actions, taking into account relevant matters pertaining to the worker and known to the employer (Director General of Education and Training v Pembroke No 2 [2007] NSWWCCPD 168). The Appellant Employer cannot establish ‘reasonableness’ simply by demonstrating it complied with internal protocols. It was appropriate for the arbitrator to consider, as he did, possible approaches alternative to those adopted by the Appellant Employer, on 25 September 2006, in analysing whether the actions were reasonable. It is also submitted the Appellant Employer ran its case at the arbitration hearing predominantly on the question of ‘injury’, and it did not seek to make any or any detailed submissions” on the ‘reasonableness’ issue raised in the appeal.
Were the Actions Taken By or on Behalf of the Appellant Employer on 25 September 2006 Reasonable?
In Manly Pacific International Hotel Pty Ltd v Doyle (1999) 19 NSWCCR 181, Fitzgerald JA (with whom Mason P agreed) at [6] said:
“In my opinion, the act of transfer of a worker by an employer, i.e., the communication of a decision to transfer (or a proposal to transfer) the worker, is an “action taken or proposed to be taken by or on behalf of the employer with respect to transfer …” of the worker within the meaning of subs 11A(1). The worker is entitled to be compensated for psychological injury caused or predominantly caused by the communication of a decision or proposal to transfer him or her where the decision or proposal or the manner in which the decision or proposal is communicated were unreasonable.”
In Jeffery v Lintipal Pty Ltd [2008] NSWCA 138 Basten JA said:
“There is a clear distinction to be drawn between a statutory test which requires an objective assessment by the Commission of the reasonableness of the action of the employer and a test by which it is sufficient for the employer to demonstrate to the Commission that, in all the circumstances, the action appeared to it to be reasonable. In my view, the present statutory provision engages the former test. An example of the latter may be found in the Anti-Discrimination Act 1977 (NSW), s 49I(1), discussed in Jamal v Secretary, Department of Health (1988) 14 NSWLR 252 at 256-7 and 262E-263A (Kirby P). If it were sufficient that the employer took action because it appeared to the employer, on grounds upon which it was reasonable to rely, to be reasonable action, the legislature could have said so. However, it did not. In my view, if, in the view of the Commission, the action taken by the employer in transferring an employee is not reasonable in all the circumstances, the employer cannot rely upon s 11A because it held a genuine belief, based on reasonable grounds, that its action was reasonable.”
The assessment is objective. It will not be enough that an employer complied with its own protocols. It is also necessary, applying the passage from Sinclair quoted at [45] above, to have regard to the events of 25 September 2006 as a series of steps, “the entirety of the conduct”. It is artificial to analyse the steps individually from each other, and the arbitrator did not do so.
A number of factual matters are uncontroversial. The Respondent Worker had been having disciplinary difficulties with a group of students. The statement of the principal Mr Greaves says at [8]:
“I was aware that Kevin was struggling with the behaviour of 8S5 class. His concerns related to the behaviour of certain girls. The behaviour demonstrated was not unique to Kevin as a Teacher however the level of behaviour that Kevin was facing could have been attributed to a number of facts (a) the fact he had a class with many difficult girls in it (b) the relationship they had was adversarial. Other teachers also had problems with the students.”
On 12 September 2006 two girls, in separate incidents, made rude and offensive comments to the Respondent Worker. He was understandably affronted, and took his concerns to the principal. When there was a delay in disciplinary action being taken against the girls by the principal, the Respondent Worker became suspicious the principal was not being frank with him about the matter, and formed a belief the girls had got together and formulated allegations against him. This can have been nothing more than a suspicion, and there is no suggestion the Respondent Worker could have had any knowledge (before 25 September 2006) of allegations actually made by any of the girls.
On 25 September 2006 the deputy principal Mr Seymour interrupted the Respondent Worker whilst he was teaching a class, to direct him to go to the office of the principal, to see Mr Collins, the Assistant Director of Schools in the Diocese. It is facile to say there could have been any number of innocent explanations for this occurring. Interrupting a class in progress is detrimental to the teaching of the students involved, and I infer would not occur without some pressing reason. It would have been apparent to the Respondent Worker, or anyone else in his situation, that it was significant a person as senior as the Assistant Director of Schools wished to see him, apparently on an urgent basis.
In the principal’s office Mr Collins handed the Respondent Worker the letter dated 22 September 2006. The Respondent Worker says he read the letter and “sat there for 10 – 15 minutes speechless”. The letter gives no particulars at all of the conduct alleged. It refers to “an allegation of reportable conduct involving you”. It says the “allegation is of a serious nature”, and the Respondent Worker is to be placed “on Director’s Approved Leave for the duration of the investigation. This action has been taken to minimise the risk to those involved in the investigative process.” It informs the Respondent Worker Ms Tyczynski will contact him within the next week to inform him of details of a meeting, at which “details of the behaviour that is alleged will be given.” It informed him of the need to “keep these matters confidential”.
There can be no doubt this sequence of events, up to and including handing over the letter, was traumatic for the Respondent Worker. Mr Collins described the Respondent Worker as appearing “to be in a state of shock”. There can be little doubt the dramatic nature of these events was magnified by the circumstances in which the letter was handed over. A class in progress was interrupted, and the Respondent Worker had to leave it part finished, to attend the principal’s office. A senior employee of the Diocese, who the Respondent Worker had not previously needed to meet during his time at the school, attended specifically for the purpose of handing the Respondent Worker a letter, advising allegations of a serious nature had been made against him. The circumstances in which he was apprised of the allegations, and the lack of particulars provided at the time, figure in the histories recorded by the psychologist Mr Collins, and the psychiatrist Dr Dinnen.
There was a lack of particulars of the allegations, both in the letter dated 22 September 2006, and in the response to enquiries by the Respondent Worker on receiving the letter. As already observed, the letter referred to the seriousness of the allegations, whilst giving no indication of what they were. This clearly had the capacity to be confronting. The Respondent Worker’s reference to “rape” in his enquiry of Mr Collins is significant, in light of the offensive remark made to the Respondent Worker by one of the girls on 12 September 2006.
There is some factual dispute regarding just what information was given orally, after the letter was handed over. Mr Collins states:
“I informed Mr Broad that there had been an allegation made, presented him with the letter. I informed him (as part of the process) that it was a serious allegation involving a sexual matter and that he needed to read the letter. I informed him that he would need to leave the school and that he would be given Director approved leave until such time that the investigation had been finalised.
Mr Broad and I spoke for quite some period of time (in the vicinity of half an hour). Mr Broad appeared to be in a state of shock, he raised questions in regard to the nature of the allegation given that it was of a sexual nature and he questioned was he being accused of rape. I assured Mr Broad that from my understanding it was not a rape type allegation however I could not elaborate on the actual allegation being made.”
The Respondent Worker’s recollection of the conversation (in his statutory declaration dated 29 April 2008), is somewhat different:
“In my earlier statement I indicated that I asked Mr Collins what the issues were and what it was that was being alleged that I had done. I confirm that it is my clear recollection that Mr Collins said, “I can’t tell you”. I asked Mr Collins whether I was being accused of ‘murder or rape’. He said he could not tell me. He told me Ms Tyczynski would contact me on Wednesday. It is my clear recollection that he did not at any time indicate to me that the allegations against me were of a sexual nature.”
The Respondent Worker has some evidence to corroborate his version on this point. There is an affidavit of his wife, Kerry Broad dated 13 March 2008. It states that on 25 September 2006 she received a telephone call from the Respondent Worker at her workplace, and he told her he had been suspended. She asked “What for”, and he replied “I have no idea, I was just told it was serious.” There is also a copy of an internal email between two officials of the NSW/ACT Independent Education Union, dated 26 September 2006, 8:58am. It says “could you please call Kevin Broad on (a telephone number) he has been stood down doesn’t know why”.
Given this corroborative material, I accept it was the belief of the Respondent Worker, on 25 and 26 September 2006, that he had not been told anything of the allegations, other than that they were serious. However given the state of shock of the Respondent Worker at the time the letter was handed over, according to both his statement, and that of Mr Collins, it is conceivable his recollection of the conversation may have been flawed. Even if Mr Collins’ version on this point is accepted, the most the Respondent Worker was told about the allegations was that they were of a sexual nature, were serious, and did not involve rape.
In its submissions, the Appellant Employer quotes the following passage from the Ombudsman Guidelines at page 86, (which appears beneath the heading “At what stage should the employee be notified of the allegations”):
“As part of the investigative process and in keeping with procedural fairness, the employee should be told, with as much detail as possible, of an allegation against them. Preferably an employee should not find out about the allegations from other sources (eg gossip) before they are advised by the investigation in the normal course. Employees should not have any action regarding them, for example transfer to other duties as part of a risk management process, without being informed, at least in general terms, about the allegations. These considerations may require that an employee must be notified that an allegation has been made very early in the process in some cases.” (the emphasis is added by the Appellant Employer)
This particular passage in the Ombudsman Guidelines continues:
“The decision about when to tell employees about allegations made against them will be subject to whether:
·Strategies have been put in place to protect the person who made the allegation, the witnesses who have provided information relating to the allegation and the children involved
·An informed judgement has been made that such disclosure is unlikely to prejudice or impede the conduct of the investigation by the agency or by any other investigative body (including DoCS or the Police)
·An informed judgement has been made that the disclosure of the substance of the allegation is unlikely to affect the quality of the evidence that may be obtained during the course of the investigation.”
The Ombudsman Guidelines at page 82 deal with “Employment related issues”:
“When an allegation is received the agency needs to consider the following issues:
·Should the employee remain in their current position, be removed to another area or be suspended? This decision is based on the assessed level of risk and the likelihood of the alleged behaviour recurring.
·If the employee’s duties are to be changed, and if DoCS and/or Police are involved, check with them to see if this will interfere with their investigations. It might also be appropriate to discuss the proposed change of duties with the employee and seek their comments.
·If the employee remains in the workplace, what duties should they undertake and who will monitor and assess the risks associated with the employee having access to children in the care of the agency. Factors to be considered include:
-the nature and seriousness of the allegation
-vulnerability of children the employee would be in contact with at work eg ages, verbal skills, disability
-the nature of the position occupied by the employee, eg their level of interaction with children singly or in groups
-the level of supervision of the employee
-support for the employee on a day to day basis if their duties are unchanged eg managing children with challenging behaviours in a classroom or living in ‘out of home care’.
·The employee’s disciplinary history or safety and the possible risks to the investigation may also be factors to consider when considering whether or not to leave the employee in position while the investigation is conducted.
·Appropriate support for the employee who has had the allegation made against them should also be considered.”
There was some factual dispute regarding the Respondent Worker’s departure from the school on 25 September 2006. The Respondent Worker’s statutory declaration dated 29 April 2008 states:
“I also have a very clear recollection of our conversation concerning what was to happen for the rest of the day. I have a clear recollection of saying to Mr Collins, “Can I go back to my class now?” His answer was, “No.” I also have a clear recollection of saying to Mr Collins “Does this mean I have to leave now? Immediately?” I have a clear recollection his answer was, “Yes.” My response was, “I’ll go to the staffroom and get my gear.”
In his statement dated 17 May 2007 the Respondent Worker also says:
“I then went upstairs, got my gear, came back down to the carpark. There were a number of students in the classrooms looking out. Ray Collins was leaving at the same time as myself, he put his arm around my shoulder and walked me to my car so then the kids assumed I was being taken away by the Police.”
Mr Collins’ version in his statement dated 29 June 2007 is as follows:
“At the conclusion of our discussion Mr Broad left the Principal’s office. I am reasonably confident that during our discussion I indicated to him that it was best if he did not resume his classes however I do not recall indicating to him that he leave immediately. In fact I was quite surprised that as I walked to my car parked in the school parking area I observed Mr Broad walking to his car, carrying a backpack. I certainly did not walk Mr Broad to his car with my arm around his shoulders as alleged however I would have patted him on the shoulder in an offer of support and recognising it was a very difficult time for him.
At that point Mr Broad expressed that he felt he could not stay at the school, that he was traumatised. I understood the situation he was in and expressed that to him at the time.”
The arbitrator preferred the Respondent Worker’s version on whether he was asked to leave immediately. He considered it more consistent with a passage in Mr Collins’ statement in which he said “I informed him that he would need to leave the school”. The arbitrator noted the “very clear” recollection of the Respondent Worker on this point. However, the arbitrator preferred the evidence of Mr Collins on the issue of whether Mr Collins placed his arm around his shoulders and led him to his car. He noted the Respondent Worker’s statutory declaration of 29 April 2008 did not traverse Mr Collins statement on this point.
Like the arbitrator, I prefer the evidence of the Respondent Worker, on the issue of whether he was told to leave immediately. As the arbitrator observed, it is consistent with the passage in Mr Collins statement, in which he told the Respondent Worker he would need to leave the school. The declaration of the Respondent Worker on this point is clear and unambiguous. Mr Collins statement on the point is less so. He refers to not having a recollection of telling the Respondent Worker to leave immediately. Mr Collins statement does not traverse the Respondent Worker’s evidence that he was told not to return to his class, and indeed Mr Collins said he was reasonably confident he told the Respondent Worker it was best that he not resume his classes. That the Respondent Worker would be told to leave immediately is consistent with him being told not to return to his class, and that he would have to leave the school.
The difference between the evidence of the Respondent Worker and Mr Collins, on the issue of whether Mr Collins walked the Respondent Worker to his car, may be more apparent than real. Neither suggests it was other than coincidental they happened to be in the car park, leaving at the same time. The Respondent Worker says Mr Collins put his arm around his shoulder and walked him to his car. Mr Collins says he would have patted the Respondent Worker on the shoulder in an offer of support. It is a question of degree how long the gesture lasted, and it is quite conceivable each could have honestly perceived it differently. The significance of the gesture from the Respondent Worker’s perspective was how he thought it appeared to students he understood were watching. He thought it looked as if he was being taken away by the Police. To this extent, the real difficulty with the gesture, however long it lasted, was the circumstance in which it occurred, with the Respondent Worker leaving the school before conclusion of the school day, having been removed from his class.
There was material attached to the Application indicating gossip circulated about the Respondent Worker’s removal from his position, and the reasons for it. There is a short statement from Margaret Sheridan B.Ed. Dip.T dated 2 March 2007 which reads:
“In late September 2006, the parent of a student at All Saints College, St. Joseph’s School, Lochinvar, mentioned to me that “Mr Kevin Broad was removed from the school today, for paedophilia”.
The parent also said that the news of this came from her son who attended the school at that time and that this information was gained by him from other students.”
A statement from Bill Smith dated 31 May 2007 says:
“On November 30 2006 I was approached by Mr Steve Young, a teacher from the science staff of Dungog High School. This took place in the Dungog Memorial bowling club at approximately 8pm.
Mr Young said that a year 8 student Jordan Donnelly told him in class that his mates from Lochinvar told him that Broady had sex charges brought against him by a year 8 girl from Lochinvar high school.”
A statement of Margaret Bourke dated 26 February (year obscured) says:
“In the first week of Term IV 2006 in Tutor Group I heard students say Mr Broad had been ‘taken away’. I had no idea what they meant as on our staff board Kevin Broad was listed as being on sick leave.
Recently the same social chat of children revealed that they believe Mr Broad was not at school because a parent (name given but I am not writing it) had complained about sexual misconduct.”
The Ombudsman Guidelines recognise the need for confidentiality in dealing with an investigation into allegations of this nature (see Part 5.15.4). The Appellant Employer’s letter dated 22 September 2006 similarly recognised this need for confidentiality. This will be in part to protect the position of the alleged victim of sexual misconduct, and witnesses. It will be to protect the integrity of the investigation. Confidentiality is also necessary to protect the position of the person the subject of the investigation. This was specifically recognised in the letter, where it stated the need to maintain confidentiality was to “protect you and those involved in the investigation”. It is obvious that allegations of this nature have the capacity to be highly destructive of the reputation of the person under investigation. This must be particularly so in the context of a person who has spent his whole working life in the teaching profession, dealing with children. Such allegations, if public, had the capacity to destroy the Respondent Worker’s reputation in the rural community in which he lived and worked, and to end his professional career.
I accept the submission of the Respondent Worker, that in analysing the reasonableness of the actions of the Appellant Employer, it is appropriate to consider whether things could have been handled differently, and better.
There was a real difficulty with the relatively public fashion in which the Appellant Employer dealt with the Respondent Worker on 25 September 2006. It may well have been difficult, in any event, to totally avoid gossip about the allegations that were made, and the reasons for the Respondent Worker stopping work at the time. However this situation can only have been exacerbated by the events of 25 September 2006. The Respondent Worker was removed from his class part way through a teaching period, by the Deputy Principal. Having been given the letter dated 25 September 2006, he was told he should leave the school, and should not resume his classes. The evidence suggests (certainly it was the Respondent Worker’s perception) that students were watching him as he walked to his car in the car park, accompanied by Mr Collins, the Assistant Director of Schools for the Diocese.
These circumstances had the real potential to create gossip, and to be humiliating for the Respondent Worker. The evidence does not reveal the extent to which later gossip emanated from the circumstances described in the preceding paragraph, as opposed to other possible sources. It was the Respondent Worker’s perception that he was dragged off “like a criminal”, and that he left the school as if he “was being taken away by the Police.” In my view the Appellant Employer’s actions in this regard were unreasonable. The reasonable course would have been to employ greater discretion, and to have greater respect for the Respondent Worker’s privacy, in what had to be difficult circumstances. As previously observed, there was no reason why the handing over of the letter, and advising the Respondent Worker of the investigation, could not have occurred at the conclusion of the school day, without the need to remove him from class, when his departure from school would seem normal, and be largely away from the potential gaze of students. This would have avoided the public humiliation experienced by the Respondent Worker.
The lack of particulars of the allegations, provided on 25 September 2006, also in my view was unreasonable. Some relevant passages from the Ombudsman Guidelines are quoted at [74] to [76] above. The Respondent Worker was informed he was being placed on Director approved leave (effectively suspended from duty, although on pay) without being given any real particulars of what was alleged against him. He was told either nothing (other than that the matter was serious) on his version, or alternatively that it was of a sexual nature, but not rape, on Mr Collins’ version. Even if Mr Collins version is accepted (the most favourable version from the point of view of the Appellant Employer), this gave the Respondent Worker no real particulars other than that the allegation was sexual. The passage from the Ombudsman Guidelines quoted at [74] required that when action was taken regarding the Respondent Worker, he was to be informed at least in general terms about the allegations. In my view to simply tell the Respondent Worker the allegation was sexual in nature, without more, could not satisfy this obligation. It should be remembered the action being taken by the Appellant Employer was potentially catastrophic, from the point of view of the Respondent Worker.
Further, the Respondent Worker was, in my view, entitled to more than just to be informed in general terms about the allegations. The passage quoted at [74] requires that an employee be told with as much detail as possible about an allegation. Matters relevant to when this should occur are raised in the passage quoted at [75]. By the time the Respondent Worker was called to the Principal’s office on 25 September 2006, a decision had already been made that he be suspended on pay. This being so, it is difficult to see that giving him full particulars of the allegations, at that point, could adversely impact on any of the considerations raised in that part of the Ombudsman Guidelines quoted at [75] above.
According to the “Final Report” of Ms Tyczynski dated 6 June 2007, by 25 September 2006 three students (including the alleged victim) had been interviewed by school personnel (on 18 and 19 September 2006). A further three interviews were conducted on 21 and 22 September 2006, and a further four interviews on 25 September 2006. Apart from the Respondent Worker himself, there were only a further three interviews carried out after 25 September 2006. The interviewing process was largely carried out prior to, and on, 25 September 2006. Thus by around the time the allegations were first raised with the Respondent Worker, the investigation process was relatively advanced. Clearly he was not told “with as much detail as possible” of the allegations. Compliance with the Ombudsman Guidelines entitled him to more. Concepts of reasonableness also entitled him to more. Even on Mr Collins’ version of events, he was told, in very general terms, of serious allegations that had the capacity to be personally humiliating, to end his long career as a teacher, and possibly (depending upon what was involved) to have criminal consequences. Yet he was given no real indication of what he was alleged to have done, in what circumstances, when, where or to whom.
The Appellant Employer made more particularised allegations available on 28 September 2006. This could not, in my view, cure the problem resulting from the absence of such particulars on 25 September 2006. By 28 September 2006 the Respondent Worker was off work, under medical care, taking anti-depressants, suffering (according to Dr Holley’s diagnosis) reactive depression. By 28 September 2006 the Respondent Worker had already suffered a psychological injury, found by the arbitrator, and not challenged in this appeal.
It follows from the above that I have concluded the arbitrator’s decision on this point was true and correct. Like the arbitrator I have concluded the Appellant Employer’s actions on 25 September 2006, which on the unchallenged finding resulted in the Respondent Worker’s psychological injury, were not reasonable. Consequently the Appellant Employer’s defence pursuant to section 11A of the 1987 Act fails.
DECISION
The decision of the arbitrator dated 7 August 2008 is confirmed, save for the following matter discussed below which alters Order 1 of the arbitrator’s decision.
The weekly claim set out in the Application was a continuing one, from 26 January 2007. The Certificate of Determination at [1] has a gap in the award entered, for the period 26 March 2007 to 26 July 2007. The reason for this is not apparent from the evidence, transcript, or reasons for the decision. The likely explanation would appear to be that it was simply a ‘slip’. Consistent with the balance of the award, and reasons, the Respondent Worker submitted on this appeal that this was so.
The arbitrator concluded, at [61] of his reasons, that payments of “Director approved leave” from 25 September 2006 constituted a ‘dual benefit’ within the meaning of section 46 of the 1987 Act. This conclusion is not challenged in this appeal, and the Respondent Worker, in his submissions, accepts the first 26 weeks of total incapacity (compensable pursuant to section 36 of the 1987 Act) expired 26 weeks after 25 September 2006, on 25 March 2007. Thus he accepts the award thereafter should be at the appropriate maximum rate for a worker without dependants, prescribed pursuant to section 37 of the 1987 Act. This is a weekly rate of $354.40 from 26 March 2007 to 31 March 2007, and $361.30 from 1 April 2007 to 26 July 2007. The Respondent Worker, in his Notice of Opposition to Appeal lodged 17 October 2008, submits the award should be amended accordingly, pursuant to the ‘slip rule’. The Appellant Employer has made no submission in opposition to this course. It is appropriate the weekly award in paragraph [1] of the Certificate of Determination dated 7 August 2008 be amended, pursuant to the ‘slip rule’, to add the following:
“From 26 March 2007 to 31 March 2007 at the rate of $354.40
From 1 April 2007 to 26 July 2007 at the rate of $361.30”
Paragraph 1 of the Arbitrator’s decision dated 7 August 2008 is therefore revoked and the following order is made in its place:
“1. The Respondent is to pay the Applicant weekly payments of compensation:
(a)from 26 January 2007 to 25 March 2007 at the rate of $1,389.53 per week;
(b)from 26 March 2007 to 31 March 2007 at the rate of $354.40 per week;
(c)from 1 April 2007 to 30 September 2007 at the rate of $361.30 per week;
(d)from 1 October 2007 to 31 March 2008 at the rate of $367.70 per week, and
(e)from 1 April 2008 to date at the rate of $374.90 and continuing at the maximum statutory rate for a single worker with no dependants.”
Paragraphs 2,3 and 4 of the Arbitrator’s decision dated 7 August 2008 are confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of this appeal.
Michael Snell
Acting Deputy President
24 November 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF MICHAEL SNELL, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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