Undag v Bupa Care Services Pty Ltd

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

1. 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

1. 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.

2. 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.

3. The nurse who allegedly witnessed the incident identified Ms Undag as the nurse who was the subject of the complaint.

4. 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.

5. 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.

6. Ms Undag’s version of the meeting with Ms Reefman was that…