Undag v Bupa Care Services Pty Ltd - [2014] NSWWCCPD 67

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Undag v Bupa Care Services Pty Ltd [2014] NSWWCCPD 67
APPELLANT:	Eunise Undag
RESPONDENT:	Bupa Care Services Pty Ltd
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-7957/13
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	15 July 2014
DATE OF APPEAL DECISION:	14 October 2014
SUBJECT MATTER OF DECISION:	Psychological injury; s 11A of the Workers Compensation Act 1987; reasonable action with respect to discipline; whether suspending worker and reporting alleged assault to the police reasonable; principles in University of Wollongong v Metwally(No 2) [1985] HCA 28; 59 ALJR 481 and Brambles Industries Ltd v Bell [2010] NSWCA 162 discussed and applied; failure to comply with Practice Direction No 6; attempt to conduct appeal as rehearing; need to establish error
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Santone Lawyers
Respondent:	Moray & Agnew
ORDERS MADE ON APPEAL:	1. The Arbitrator’s determination of 15 July 2014 is confirmed. 2. No order as to costs.

INTRODUCTION

This appeal concerns the application of s 11A of the Workers Compensation Act 1987 (the 1987 Act). In particular, it concerns whether an Arbitrator erred in finding that the employer’s actions in suspending a worker, pending investigation into an alleged assault, and reporting the incident to the police, were reasonable.

BACKGROUND

The appellant worker, Eunise Undag, started work for the respondent employer, Bupa Care Services Pty Ltd, as an assistant in nursing at its aged care facility at Dural, on 28 May 2004.
On 28 June 2013, the respondent’s general manager, Justine Reefman, received a complaint from the daughter of a resident that, about 12 months earlier, a member of staff had struck her mother, who suffers from dementia, on the bottom. Ms Reefman sought advice from the respondent’s “reportable team” and was told that as there was “an allegation of physical assault” the process of reporting to the police and the department (of aged care) needed to commence and that the staff member who allegedly struck the resident was to be suspended pending an investigation.
The nurse who allegedly witnessed the incident identified Ms Undag as the nurse who was the subject of the complaint.
At about 5.42 pm on 28 June 2013, Ms Reefman summoned Ms Undag to her office and, in the presence of another member of staff, informed her of the allegations. Ms Undag denied any wrongdoing. Ms Reefman suspended Ms Undag, on full pay, pending an investigation and asked her to leave the premises. Ms Reefman told Ms Undag that, as part of the process, the matter would be reported to the police who may contact her.
Also on 28 June 2013, presumably after the meeting with Ms Undag, Ms Reefman contacted the Castle Hill Police Station and was told that, because of the time since the alleged incident, they would not be taking any action.
Ms Undag’s version of the meeting with Ms Reefman was that she was made to leave the premises immediately and that they “did not explain anything” to her. She alleged that she was told that she could go to the police station herself or they would be “knocking” on her door.
Ms Undag said that she went home but did not sleep because she thought the police would call on her.
On 29 June 2013, Ms Undag saw her general practitioner, Dr Amabel Harding.
Also on 29 June 2013, Ms Undag went to the Blacktown Police Station where she was informed that no report had been submitted by the respondent regarding the alleged complaint and that, if it were reported, it would not be investigated because it occurred over 12 months ago.
On 2 July 2013, Ms Reefman wrote to Ms Undag to confirm her suspension on full pay pending a full investigation into the allegation. The issues were identified as:
“● Resident abuse: use of unreasonable force towards a resident.
●Breach of Bupa Code of Ethics – failure to treat resident with dignity and care[.]”
The letter set out details of the complaint and added that, due to the nature of the allegation, in accordance with the legal requirements for dealing with such matters, the respondent “may report this alleged incident to the Office of Aged Care Quality and Compliance and the police, who may conduct their own investigations”. It added that “these are allegations only and your suspension should not in any way be taken as [the respondent] assuming that you have acted as alleged”.
On 5 July 2013, Ms Undag saw a psychologist, Fe Limjap, who diagnosed her to have an acute stress disorder.
On 9 July 2013, Dr Harding issued a WorkCover certificate of capacity in which she certified Ms Undag unfit for work due to “[a]nxiety/depression”.
Also on 9 July 2013, Ms Undag attended a meeting with Ms Reefman and her manager, Wendy McLaughlin, and was informed that no further action would be taken, including any police action, and that she could return to work. (This meeting had been scheduled for 5 July 2013, but to suit Ms Undag’s convenience was deferred until 9 July 2013 so her son could attend with her.)
On the same day, Ms Reefman wrote to Ms Undag confirming the meeting of 9 July 2013 and confirming Ms Undag’s denial that she had ever hit, slapped or tapped a resident. The letter added that:
“The allegation by a fellow staff member that you had hit a female resident, approximately twelve months [ago] is unable to be substantiated. We would like to thank you for your participation in this process.
Finally, I understand that this may be a difficult time for you and remind you of your ability to use our Employee Assistance Program by calling xxxx xxxx. This is a confidential service and is paid for by [the respondent].”
Ms Undag has not returned to work since she was suspended on 28 June 2013.
In an Application to Resolve a Dispute (the Application) filed on 23 September 2013, Ms Undag claimed weekly compensation from 28 June 2013 to date and continuing together with hospital and medical expenses. Under “Describe how the injury occurred”, the following is recorded in the Application:
“[Ms Undag] was accused of serious allegations, including assault, approximately 12 months after the alleged incident occurred and due to the paucity of details, was unable to recall any specific incident. On 28 June, 2013 she was made aware of the allegation and was physically escorted from the premises in full view of her colleagues. She was informed that if she did not leave immediately that [the] police would be called.”
The respondent disputed liability on several grounds. At the arbitration, the only ground pressed was that Ms Undag’s injury had been wholly or predominantly caused by reasonable action with respect to discipline under s 11A of the 1987 Act.
After hearing detailed submissions on 25 June 2014, but no oral evidence, the Arbitrator delivered an oral decision on 30 June 2014 in which he upheld the respondent’s s 11A defence. In summary, he concluded (at T6.27) that Ms Undag suffered a psychological injury, namely, adjustment disorder with anxiety and depressed mood, which had been caused by:
(a)     the “suspension of Ms Undag” on 28 June 2013;
(b)     the “institution of disciplinary proceedings”, and
(c)     the “reporting circumstances of the alleged assault on the patient [sic, resident] by the applicant [sic, respondent] to the police”.
The Arbitrator concluded that “both the process followed by the respondent and the result which it reached was reasonable” (T17.31). It followed that Ms Undag had no entitlement to compensation and he made an award for the respondent. That order was formally incorporated in a Certificate of Determination issued by the Commission on 15 July 2014.
Ms Undag has appealed. For the reasons set out below the appeal is unsuccessful and the Arbitrator’s determination is confirmed.

ON THE PAPERS

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.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal 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.

ISSUES IN DISPUTE

The issues in dispute in the appeal are whether the Arbitrator erred in:
(a) finding that the respondent’s conduct was reasonable within the meaning of s 11A;
(b)     failing to properly consider the significance of:
(i)the respondent’s conduct in raising that the matter was one that would involve the police, and
(ii)“what he himself found to be unreasonable conduct (i.e. the Respondent’s failure to inform [the] Appellant that the police would not be taking any action), in the context of the disciplinary action as a whole, and [failing to] find that such conduct rendered the disciplinary action unreasonable”.
(c)     failing to take into account Ms Undag’s circumstances at the time of the disciplinary action, when determining whether or not the respondent’s actions were reasonable, and
(d)     finding that the unreasonable action of the respondent was not sufficient to cause the disciplinary conduct to be unreasonable.

THE ARBITRATOR’S REASONS

The Arbitrator found that Ms Undag’s psychological injury had been caused by the suspension, the institution of disciplinary proceedings and “the reporting circumstances of the alleged assault on the patient [sic]” (T6.30) to the police. He was satisfied that all of those matters fell within discipline in section 11A.
Dealing with the reasonableness issue, the Arbitrator said that the respondent was confronted with a serious allegation of assault on an elderly person by a member of staff. That “could not be lightly dismissed” (T13.35). The daughter of the resident had reported the incident and the source of the account was a member of staff. He acknowledged that the respondent had duties to:
(a)     the employee (Ms Undag);
(b)     the resident concerned, to ensure there was no continuation of maltreatment;
(c)     the employee who had reported the incident, to investigate it thoroughly, and
(d)     ensure that potential witnesses were not threatened or their evidence tampered with.
Weighing all these matters, the Arbitrator said that it was not open to find that Ms Undag’s suspension on full pay, but only “for a period of a week” (T14.22), was, in the circumstances, unreasonable. He specifically dealt with the manner in which Ms Undag was asked to leave the premises and concluded that it was not unreasonable.
Turning to the issue of reporting the matter to the police, the Arbitrator noted Ms Reefman’s evidence that she was informed by the quality consultant at the head office of the respondent, Melissa Brookes, that, as this was an allegation of physical assault, the process of reporting to the police and the department needed to commence.
Though the Arbitrator doubted that Ms Undag was told that the police would come knocking on her door, he accepted that, in her emotional state, she may have perceived that to be the case. He accepted that Ms Undag left the meeting on 28 June 2013 with the impression that the police may come to her home or that she could attend at the police station.
The Arbitrator said, at T16.15:
“It seems to me likely, despite the contrary evidence of Ms Reefman, that [Ms Undag] was not told at the time of the meeting on 28 June 2013 that the police had been contacted and had no interest in the matter. If that was so, it seems highly probable that [Ms Undag] would have gone to the police station on the evening of 29 June 2013 only to be told that no complaint had been made and the police were not interested in pursuing a complaint in the circumstances of case that was more than 12 months’ old.”
I have interpreted the second sentence in the above passage to mean that, if Ms Reefman had told Ms Undag on 28 June 2013 that the police had no interest in the matter, it was highly probable that Ms Undag would not have gone to the police on 29 June 2013. Therefore, he did not accept that Ms Reefman told Ms Undag on 28 June 2013 that the police had no interest in the matter.
The Arbitrator acknowledged that Ms Reefman’s evidence about when she contacted the police was ambiguous. Her evidence was in her statement dated 16 October 2013, which reads:
“33. On 9 July 2013 I met with Wendy McLaughlin, [Ms Undag] and her son and a friend as a support person, file notes to which are hereby appended as Annexure G. To my recollection, [Ms Undag] nor any of her support asked if I had called the police, but she was aware this was policy. To my knowledge[,] I did not advise [Ms Undag] to ‘forgive and forget’.
34. As part of standard procedure, on 28 June 2013 I had contacted Castle Hill Police station to report the allegation and had been advised that the matter would not be investigated further due to the time lapse of the event. During this meeting, [Ms Undag] expressed concerns about the police involvement and I assured her that they would not be involved as the allegation related to [a] matter dating twelve months prior.”
Dealing with this evidence, the Arbitrator said that, grammatically, it would appear that Ms Reefman was stating “that that occurred on 28 June 2013, but it appears equally plausible that the matter was raised on 9 July 2013” (T12.29). In any event, the Arbitrator did not accept that Ms Reefman told Ms Undag on 28 June 2013 that the police would not be investigating the matter. (My interpretation of Ms Reefman’s evidence is that she was asserting that she told Ms Undag on 9 July 2013 that the police would not be involved, though Ms Reefman had been told that on 28 June 2013. That was, ultimately, the view the Arbitrator formed. Thus, the statement above about Ms Reefman’s “contrary evidence” was not accurate – Ms Reefman did not assert that she told Ms Undag on 28 June 2013 that the police would not be involved.)
The Arbitrator continued, at T16.26:
“It seems likely that [Ms Undag] was told at the meeting [on 28 June 2013] that the police may contact her. It seems equally likely that the respondent, through Ms Reefman, then made inquiries which led her to form a view that the police had no interest in the matter. It is at least arguable that when Ms Reefman was told the police’s attitude towards the incident, she should have made some effort to tell [Ms Undag] what she had been told by the police. That would have spared [Ms Undag] a difficult night worrying about whether the police would come to her home.”
After referring to the evidence that Ms Undag went to the police on 29 June 2013 and was told emphatically that they had no interest in the matter, the Arbitrator noted the letter of 2 July 2013, which stated that, due to the nature of the allegations, “the respondent may report the alleged incident to the Office of Aged Care Quality and Compliance and the police who may conduct their own investigations”.
The Arbitrator accepted that the potential for the police to be involved “appeared to be troubling [Ms Undag] significantly when she saw her psychologist for the second occasion on 11 July 2013” (T17.21), which was after the meeting on 9 July 2013. He then said, at T17.25:
“The issue is quite evenly poised, particularly given the fact that the employer carries the onus in the matter. By and large, while I have formed the view that the respondent through Ms Reefman may have perhaps attempted to inform [Ms Undag] that the police would not investigate the matter at an earlier time, it seems to me that overall both the process followed by the respondent and the result which it reached was reasonable.”
He added, at T18.4:
“I have reached the conclusion that whilst the actions of Ms Reefman and others who represented the respondent throughout the period on the afternoon of 28 June through until 9 July 2013 were not completely without blemish, on balance their actions were reasonable.”

SUBMISSIONS

Though counsel appeared for Ms Undag at the arbitration, her solicitor, Mr Santone, has prepared the submissions on appeal. In non-compliance with Practice Direction No 6, Mr Santone has not made submissions addressing each of the grounds of appeal but has instead made general and discursive submissions on the issue of reasonableness. That is most unsatisfactory. The profession is reminded, yet again, that appeals must comply with the Practice Direction.
Mr Santone has not challenged the Arbitrator’s finding that the decision to suspend Ms Undag on full pay was reasonable. He contended that the Arbitrator found that the respondent’s failure to inform Ms Undag that there would be no police action, once the respondent became aware of that fact, was unreasonable.
Mr Santone submitted that the Arbitrator ultimately accepted that the respondent was aware, on 28 June 2013, that there would be no police involvement. He submitted that:
“The thrust of the appeal is that the unreasonable action of the Respondent in continuing to raise the spectre of police involvement was sufficient to fatally infect the Respondent’s conduct in purporting to take disciplinary action against [Ms Undag], so as to render it unreasonable.”
Noting that the respondent bore the onus of proof on this issue and, given that the Arbitrator said the “issue is quite evenly poised” (T17.25), Mr Santone contended that the Arbitrator was “bound to find that the Respondent had failed to discharge its onus”.
Mr Santone argued that the respondent’s conduct “in unreasonably raising, and continuing to state, that there would be police involvement, renders its conduct unreasonable, and causes the section 11A defence to fail”.
Mr Santone contended that, in making his determination, the Arbitrator should have taken into account Ms Undag’s circumstances on 28 June 2013 and, in particular, her significant apprehension regarding the police involvement, the seriousness of criminal proceedings, and the risk of conviction.
He said that the respondent was aware on 28 June 2013, soon after suspending Ms Undag, that the police would not be taking any action. It was therefore incumbent on the respondent to advise Ms Undag that this would not be a consequence of the disciplinary process. The respondent’s failure to inform Ms Undag, at that time, was unreasonable and tainted its conduct as a whole.
The significance of the police involvement was borne out by Ms Undag’s statement that she did not sleep on the evening of 28 June 2013 because she thought the police would knock at her door. This statement was consistent with the history recorded by Dr Lee, psychiatrist qualified by the respondent, in his report of 8 October 2013.
The clinical notes from Ms Limjap on 5 July 2013 recorded that Ms Undag was “very distressed to know that there was no report submitted from [the respondent] regarding the alleged complaint when Senior Constable Tim Cox searched the system”.
The respondent continued to raise the prospect of police involvement by stating in the letter of 2 July 2013 that the police may still conduct an investigation on their own. By implication, this raised the prospect that charges would be laid, that Ms Undag would be subjected to a prosecution, and that she might be convicted of a criminal offence.
Ms Limjap’s report of 11 July 2013 recounted that Ms Undag was very scared by Ms Reefman’s “alleged threat of the Police being called on her with the alleged added threat of being visited at home”.

Mr Santone contended that the respondent:
“unnecessarily and for no legitimate industrial reason, escalated an internal matter, to a level which threatened to involve the apparatus of the State being brought to bear upon [Ms Undag]. That escalation induced a state of anxiety in [Ms Undag], as is clear from the evidence.”
He argued that the “ongoing threat of police action was plainly a substantial factor causing [Ms Undag’s] psychological injury”. It followed that the respondent’s conduct in raising the prospect of police involvement, then failing to assure Ms Undag that the police would not be involved when it gained such knowledge, and, after that, continuing to suggest that the police may become involved, was unreasonable and contributed to Ms Undag’s condition.
The respondent’s conduct transformed the disciplinary proceedings from an internal matter, involving exposure to industrial sanctions, to a matter that raised the prospect of a criminal record. Reasonable disciplinary action cannot include unfounded suggestions of police involvement (prior to conferring with the police), or continuing suggestions of police involvement (when the respondent is aware that the police have no intention of becoming involved).
Mr Santone submitted that it was incumbent on the respondent to take into account Ms Undag’s vulnerability, of which it was aware (NSW Police Force v P [2010] NSWWCCPD 26 at [150] (P)). The Arbitrator did not consider Ms Undag’s vulnerability to the injurious effect of being subjected to a police investigation and having criminal proceedings instituted against her.
The Arbitrator erred in failing to find that the respondent had not discharged the onus under s 11A.

DISCUSSION AND FINDINGS

Before considering Mr Santone’s submissions, a preliminary point must be noted. As this is an appeal under s 352 of the 1998 Act, for Ms Undag to succeed, it is necessary for her to establish that the Arbitrator’s decision is affected by an error of fact, law or discretion.
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 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.”
Sackville AJA (Ward JA agreeing) quoted the above passage, with apparent approval, at [71] in Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie) and added that Allsop J’s observations need to be borne in mind “particularly ... where the challenge is to an evaluative judgment such as the reasonableness of actions by an employer with respect to discipline”. His Honour added, at [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.”
Consistent with this statement, Spigelman CJ observed in Vines v Australian Securities and Investment Commission [2007] NSWCA 126 (at [8]):
“8 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. (See Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 esp at 517-518, 540; Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 esp at 210-212; Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 esp at [19], [27], [32]; Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 at [27]; Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; (2006) NSWCA 154; at [3]-[4] and [64]-[70].) 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’. (See Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110 at 119.)”
In assessing whether conduct is reasonable, the Commission has consistently applied the principles stated by Geraghty CCJ in Irwin v Director General of School Education (unreported, Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1997):
“The question of reasonableness is one of fact, weighing all the relevant factors. The 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 employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”
And by Truss CCJ in Ivanisevic v Laudet Pty Limited (unreported, Compensation Court of NSW, Truss CCJ, 24 November 1998):
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected.”
The above passages were quoted and approved by Foster AJA (Sheller and Santow JJA agreeing) in Commissioner of Police v Minahan [2003] NSWCA 239; 1 DDCR 57.
I intend to approach the alleged error on the reasonableness issue by reference to the above principles.
Mr Santone’s submissions are based on a demonstrably false premise and a sustained misunderstanding of the nature of an appeal under s 352. The false premise is that the Arbitrator found that the respondent’s failure to inform Ms Undag immediately that there would be no police action, once it was aware that that was the fact, was unreasonable. The Arbitrator made no such finding.
The Arbitrator merely said that it was “arguable” that Ms Reefman “should have made some effort to tell [Ms Undag] what she had been told by the police” (T16.32). He added that, though the respondent “may have perhaps attempted to inform [Ms Undag at an earlier time] that the police would not investigate the matter” (T17.28), “overall” both the process followed and the result reached were reasonable.
The Arbitrator was well aware that Ms Reefman had been “advised” on 28 June 2013 that “the matter would not be investigated further [by the police] due to the time lapse of the event” (Ms Reefman’s statement at [34], quoted by the Arbitrator at T12.17). It seems clear that that advice was given to her over the phone, but, other than the evidence that it came from Castle Hill Police Station, the exact source of the advice was not disclosed. This raises a question about the authority of the person Ms Reefman spoke to and the reliability of the advice.
As the respondent submitted on appeal, the fact that Ms Reefman was informed over the telephone by an unidentified police officer that, given that the matter was 12 months old, the police were not interested in pursuing it could not be said to be conclusive. On one view, it may have been irresponsible of the respondent to tell Ms Undag, before Ms Reefman completed her investigation, that the police would not be involved. Significantly, as at 28 June 2013, the investigation into the matter had hardly started.
The Arbitrator was also aware of, and referred to, the letter of 2 July 2013, which stated, among other things, that the police “may conduct their own investigations”. As the Arbitrator noted, there was no evidence of Ms Undag’s reaction to the letter of 2 July 2013. By the time she received that letter, the police had told her that, because of the time since the alleged incident, no action would be taken. In the absence of evidence of Ms Undag’s reaction to the letter of 2 July 2013, I do not accept that the Arbitrator erred in the weight he attached to it.
The Arbitrator expressly acknowledged the submission by Ms Undag’s counsel that the reference to the police in the letter of 2 July 2013 was “confusing and inappropriate” (T7.17) and “tainted the [respondent’s] actions” (T7.19). He also acknowledged, appropriately, that the potential for police involvement “appeared to be troubling [Ms Undag] significantly” (T17.21). Notwithstanding these matters, the Arbitrator was satisfied that the respondent’s actions, when assessed “overall”, were reasonable.
The Arbitrator accepted that the potential involvement of the police was something that “appeared to be troubling [Ms Undag] significantly” (T17.22) when she saw Ms Limjap, for the second occasion, on 11 July 2013. He was also aware of Ms Undag’s evidence, which he appears to have accepted, that she spent the night of 28 June 2013 “worrying about whether the police would come to her home” (T17.1). However, given that, by 11 July 2013, both the police and Ms Reefman had told Ms Undag that the police would not become involved, it is difficult to see that telling Ms Undag of that fact earlier (than 9 July 2013) would have made any relevant difference to the process or the outcome.
Mr Santone has not pointed to any error of fact, law or discretion in that approach to, or the conclusion on, the reasonableness issue, which requires an evaluative judgment of the whole process. The Arbitrator’s approach, in assessing the matter “overall”, was consistent with the Court of Appeal decision in Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206 where Spigelman CJ (Hodgson and Bryson JJA agreeing) observed (at [97]) that a course of conduct may still be “reasonable action”, even if particular steps in it are not.
The submission that, as the respondent bore the onus of proof and the Arbitrator said that the issue (of reasonableness) was “evenly poised”, the Arbitrator was “bound” to find that the respondent had failed to discharge the onus was incorrect. The reference to the matter being evenly poised was no more than the Arbitrator acknowledging that the matter was finely balanced. That did not relieve the Arbitrator from his duty to determine the issue. He did that by determining that, though the respondent’s actions were not completely without blemish, on balance, their actions were reasonable. That finding, and the Arbitrator’s approach, was open on the evidence and disclosed no error.
The submission that the respondent acted unreasonably in initially reporting the matter to the police is not a point that was argued at the arbitration. The closest counsel came to raising that issue was to say that the respondent did not need to raise the prospect of the police and criminality on 28 June 2013. As it is a matter that could have been met with further evidence from the respondent, it is not a point that can be raised for the first time on appeal (University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481).
Moreover, the submission is without merit. As the Arbitrator noted, when the complaint first surfaced, Ms Reefman sought advice from the respondent’s “reportable team”, as per the guide to incident reporting requirements. Ms Brookes, a “quality consultant”, advised her that, as the matter involved “an allegation of physical assault”, the process of reporting to the police and the department needed to commence.
It will not always be sufficient for a respondent to say that it followed a set practice or procedure, if that practice or procedure is itself unreasonable (Heggie at [162]; Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad [2008] NSWWCCPD 139; 7 DDCR 193 at [63]). However, for the reasons explained below, I do not accept Mr Santone’s submission that, by reporting the matter to the police, the respondent’s actions were not reasonable.
The respondent runs an aged care facility and has the legal responsibility for the day-to-day care of elderly residents. Many of those residents have disabilities, including dementia, and are in a weak and disadvantaged position. In these circumstances, an allegation of conduct that may amount to an assault, by a member of staff against a resident, is a serious matter. In reporting the matter to the police, Ms Reefman did not act capriciously or out of malice. She had a complaint from the resident’s daughter, which was corroborated by a member of staff. She sought advice from Ms Brookes. In the circumstances, the submission that it was unreasonable to report the matter to the police is untenable and is rejected.
While the respondent had a duty to be fair to Ms Undag when investigating allegations that may have amounted to misconduct, it also had a duty to the resident concerned, and other residents, the employee who allegedly witnessed the incident, and to other potential witnesses. Taking these matters into account, the Arbitrator was satisfied that the respondent struck a fair balance between these competing duties and that its actions were reasonable. That approach disclosed no error.
The submission that, in his assessment of the reasonableness issue, the Arbitrator should have taken into account Ms Undag’s circumstances on 28 June 2013 and, in particular, her “vulnerability”, is without substance. This was not a submission that was made at the arbitration and it is not open to argue on appeal that an Arbitrator erred in not dealing with an argument never put (Brambles Industries Ltd v Bell [2010] NSWCA 162). Nevertheless, I will deal with it.
The test of reasonableness is an objective one (Jeffery v Lintipal Pty Ltd [2008] NSWCA 138). The reasonableness of an employer’s actions with respect to discipline has to be assessed by reference to the facts and circumstances known to the employer at the time of the action. Those facts have been canvassed above and need not be repeated. Suffice to say that, given the nature and circumstances of the complaint, namely, an alleged assault by a member of nursing staff against a resident with dementia, and the nature of the respondent’s business, there was nothing about Ms Undag’s circumstances or history that made the reporting of the matter to the police unreasonable.
Dr Lee’s evidence does not advance Ms Undag’s position. He recorded that, at the meeting on 28 June 2013, Ms Undag was told, “you have to leave because I have to call the police”. He added that Ms Undag could not sleep all night because she was anxious and shaking and that, even now, she shakes if she sees the police. This evidence merely established that Ms Undag was concerned about the police being involved, something that the Arbitrator acknowledged. It does not establish any special vulnerability that the respondent unreasonably failed to take into account in its dealings with Ms Undag over this issue. Nor does it establish that, because of Ms Undag’s alleged vulnerability, the respondent’s actions in reporting the matter to the police were not reasonable.
Ms Limjap’s note on 5 July 2013 does not assist. The note seems to suggest that Ms Undag became distressed to know that the police had no report of the incident. Mr Santone has not explained the relevance of that note to the grounds of appeal. It might have been relevant if it were suggested that Ms Reefman had acted unreasonably by falsely saying that she was going to report the matter to the police and then did not report it. That is not the evidence and not Mr Santone’s complaint. Nothing in Ms Limjap’s note suggests error by the Arbitrator or supports Mr Santone’s new arguments on appeal.
The submission that the respondent “unnecessarily and for no legitimate industrial reason, escalated an internal matter, to a level which threatened to involve the apparatus of the State” was misguided and demonstrated a fundamental misunderstanding of the issues involved. It is rejected. As explained above, the respondent had to balance several competing obligations. Given the potential seriousness of the matter, and the respondent’s position as an aged care provider, reporting the matter to the police was clearly reasonable in all the circumstances.
I accept that it would have been preferable if the letter of 2 July 2013 had stated that the police had been contacted and that they had indicated that, in view of the delay in reporting the matter, they would not be investigating it. That the letter did not do that, but in fact suggested that the police may wish to investigate the matter, was unfortunate. However, considering all the circumstances, the Arbitrator made an evaluative judgment that the respondent’s actions with respect to discipline, including the reporting to the police, and telling Ms Undag on 9 July 2013 (at the first meeting after the suspension, noting that an earlier meeting had been cancelled by Ms Undag) that the police would not take action, were reasonable. That finding was open on the evidence and disclosed no error.
The submission that reasonable disciplinary action cannot include unfounded suggestions of police involvement (prior to conferring with the police) was not a submission that was made at the arbitration and, in any event, is without substance. The evidence accepted by the Arbitrator was that, on 28 June 2013, Ms Reefman said no more than that the police “may” (T16.27) contact Ms Undag. That finding was open on the evidence and, in the circumstances, Ms Reefman’s statement to Ms Undag was reasonable. There was no obligation on Ms Reefman to contact the police, to ascertain their view on the matter, prior to speaking to Ms Undag. Her failure to do so did not mean the Arbitrator erred in finding that the respondent’s actions were reasonable.
P does not advance Ms Undag’s position and does not support Mr Santone’s submissions. In that case, the worker suffered from PTSD due to incidents that occurred in the course of her work as a police officer. While off work, on maternity leave, but still unfit because of her PTSD, the worker received a phone call from the insurer’s claims officer who asked why she was still receiving treatment from her psychiatrist, when she intended to return to work, and the nature and extent of her treatment. The claims officer was “sarcastic” throughout the conversation and the worker became distressed and anxious.
The Arbitrator found, and the Acting Deputy President confirmed on appeal, that the worker’s injury was PTSD consequent upon earlier events. As a result, it could not be said that her injury was wholly or predominantly caused by reasonable action taken by the insurer with respect to employment benefits. However, if she was wrong on that issue, the Acting Deputy President considered if the insurer’s actions, in contacting the worker and questioning her, were reasonable.
It was in this context that the Acting Deputy President said that, in the normal course of events, it would be reasonable for an insurer to contact a worker. However, given the worker’s well documented psychiatric history, and in particular her treating psychiatrist’s stated concerns that the worker was vulnerable to a relapse if placed under stress, the actions of the claims officer were unfair and unreasonable.
There is no valid comparison between the facts in P and the present matter. There was no evidence that Ms Undag suffered from a pre-existing psychiatric condition, or any other vulnerability, at the time of the meeting on 28 June 2013 and there was therefore no reason for the respondent to treat her differently to any other employee in a similar position. Moreover, the factual background to the matters could not be more different. It was never suggested that the worker in P had committed an assault on a person in her care, or anything analogous to that, as was alleged in the present matter. There is no evidence that Ms Reefman spoke to Ms Undag in a sarcastic or offensive way. The evidence was that she was courteous and polite at all times.

OTHER MATTERS

Mr Santone’s submissions were based on a fundamentally false premise and, on several issues, were without substance and clearly misguided. His submissions failed to comply with Practice Direction No 6, which requires that the grounds of appeal be clearly stated and that submissions be made addressing each ground. Instead, Mr Santone made discursive submissions about the merits of the case in general, as if the case was a rehearing. That was unsatisfactory.
This case graphically illustrates, yet again, the counterproductive and unhelpful practice of having counsel conduct the arbitration and having an inexperienced solicitor conduct the appeal. It is appropriate to repeat what I said in Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1 at [80]:
“The Commission has recently delivered several decisions where it has expressed surprise at the now common practice of briefing counsel at the arbitration but not on the appeal. The Council adopted that practice in this matter. As I have observed in previous cases, that practice is counterproductive and does not advance the interests of the party concerned (NSW Department of Education and Communities v Murray [2012] NSWWCCPD 76; Nolan v Department of Education & Training [2012] NSWWCCPD 74; Krstevska v Fast & Fluid Management Australia Pty Ltd [2012] NSWWCCPD 69). Those observations are applicable in this matter.”
The practice of having appeals conducted by inexperienced solicitors is unsatisfactory. It does not promote the efficient resolution of appeals and, more importantly, does not advance the interests of the parties involved. The repeated attempts by solicitors to conduct appeals on issues that were not argued before the Arbitrator, as if the appeal is a rehearing, is unacceptable. As the Commission has explained in dozens of appeals, s 352 appeals are restricted to the identification and correction of error. It is not open to allege that an Arbitrator has erred in failing to deal with an issue not argued. Moreover, the consistent failure to comply with Practice Direction No 6 is unacceptable.

CONCLUSION

Essentially, Mr Santone has invited me to conduct a rehearing on the issue of reasonableness. In appeals under s 352, which are restricted to the identification and correction of error, that is not open. Neither the Arbitrator’s approach nor his conclusions disclose any error.

DECISION

The Arbitrator’s determination of 15 July 2014 is confirmed.

COSTS

No order as to costs.

Bill Roche
Deputy President

14 October 2014

I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE