Watts v State of New South Wales (NSW Police Force)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Watts v State of New South Wales (NSW Police Force) [2024] NSWPIC 54
APPLICANT:	Jeromy Watts
RESPONDENT:	State of NSW (NSW Police Force)
MEMBER:	Lea Drake
DATE OF DECISION:	9 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; feedback and criticism from the applicant’s sergeant; whether they were merit based or bullying not determined; the breadth of the definition of appraisal and discipline considered; section 11A(1); Held – psychological injury sustained in the course of or arising out of employment; employment the main contributing factor to injury; respondent failed to discharge its onus with respect to the section 11A(1) defence.
DETERMINATIONS MADE:	The Commission determines: 1. The applicant was a worker employed by the respondent when he sustained a psychological injury in the course of his employment. 2. The course of the applicant’s employment with the respondent was the main contributing factor to the applicant contracting the disease. 3. The injury was not wholly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline either together or separately. 4. The injury was not predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to performance appraisal or discipline either together or separately. 5. The respondent has failed to establish a defence pursuant to s 11A (1) of the Workers Compensation Act 1987.

STATEMENT OF REASONS

BACKGROUND

Jeromy Watts (the applicant) is a police constable. In 2013 he completed the Indigenous Police Recruitment Our Way Delivery Programme. He attested on 18 August 2018. With his partner, also a police officer, he sought a rural placement and was posted there in 2022.
The applicant has had a fraught childhood and difficult family background.
Various issues arose regarding his personal conduct and performance. Those issues involved his adherence to police policies including attendance at work and personal behaviour involving the use of alcohol. His association with persons considered to be either inappropriate or tainted in some manner was an issue. A police officer is expected to declare an inappropriate association if he or she is unable to avoid such an association.
The applicant alleges that the conditions to which he was subjected at work, including alleged bullying and harassment, caused him to develop a psychiatric condition which incapacitated him and caused him to cease work.
State of NSW (NSW Police Force) (the respondent) does not deny injury and incapacity but alleges that the applicant’s incapacitating psychiatric condition arose out of the respondent’s reasonable actions arising from either his performance appraisal or discipline by the respondent.
The question for determination is whether the applicant’s condition arose from adverse interactions with his superior officer in the ordinary course of his duties or from the management of either performance appraisal or disciplinary action by the respondent.

MATTERS IN DISPUTE

It is not disputed that the applicant is suffering from a psychological disorder, a disease contracted in the course of employment pursuant to s (4)(b), which causes him to be unfit for employment. The issue in dispute is whether the respondent has established a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act). Is the condition suffered by Constable Watts wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to performance appraisal or discipline?

PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION (COMMISSION)

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

RELEVANT LEGISLATIVE PROVISIONS

Section 4 and s 11A of 1987 Act are as follows:
“S.4 Definition of ‘injury’ (cf former s 6 (1))
In this Act—
injury—
means personal injury arising out of or in the course of employment,
includes a disease injury, which means—
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease, and
(c)     does not include (except in the case of a worker employed in or about a mine) a dust disease, as defined by the Workers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration of a dust disease, as so defined.
S11A. No compensation for psychological injury caused by reasonable actions of employer
(1)    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.
(3)    A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4)    This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(5)    (Repealed)
(6)    This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7)     In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as ‘stress’ or ‘stress condition’.
(8)     If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)—
(a)     the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b)     proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”

THE EVIDENCE

There was no oral evidence.
The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (ARD) and attached documents;
(b)    Reply to ARD (Reply) and attached documents;
(c)    submissions of the respondent dated 6 November 2023;
(d)    submissions of the applicant dated 13 November 2023, and
(e)    submissions in reply from the respondent dated 21 November 2023.

The respondent’s submissions

The respondent’s submissions regarding the conduct of the applicant characterised it as misconduct. It outlined steps taken by the applicant’s sergeant to correct his conduct and ensure his adherence to police policies, in particular those relating to the management of inappropriate associations.
I have dealt with the sergeant’s evidence in my consideration.
Dr Clarke for the respondent concluded that the applicant’s condition arose from disciplinary action taken by the sergeant in response to the applicant’s conduct.[1]
“It is my opinion that the events which caused the Adjustment Disorder were perceived by Mr Watts as targeted harassment, but documents from the supervisor involved frame these as performance appraisal and discipline.”
[1] Report dated 23February 2023 paragraph 12.

The applicant’s submissions

The applicant submits that his psychological condition arose from a series of workplace events beyond performance appraisal or discipline and, in any event, to the extent that either appraisal or discipline was causative of his condition, it was not reasonable action.
“(a) The approach to assessment of the s.11A defence is as follows: Identify the injury by reference to date and causation; whether and to what extent the injury is caused by action taken or proposed to be taken by the employer,
(b) If so, was the injury, by reference to the determination of causation, wholly or predominantly as a result the action?
(c) If so, was that action taken in respect of (in this case) discipline and/or performance appraisal. Was the said action reasonable?”[2]
[2] Applicant’s submissions page 1 paragraph 3.
Dr Anand[3] for the applicant provided a report and expressed his opinion that the applicant’s complaints and workplace difficulties with his supervisor “…were the main reasons that he went off work” and that “…his injury was caused predominantly by the bullying and harassment”. He diagnosed an adjustment disorder with mixed anxiety and depressed mood.
[3] Dr Anand ARD page 60.
In response to the submissions of the respondent the applicant submits that the diagnosis of Dr Judith Clarke should not be relied upon. She accepts the position of the respondent that it was engaged in performance appraisal and discipline, rather than targeted harassment as perceived by the applicant.

CONSIDERATION

I have summarised below the established relevant jurisprudence of this Tribunal as I understand it:
(a)    the onus is on the respondent to establish a defence pursuant to s 11(A) of the 1987 Act.[4]
[4] Pirie v Franklins Ltd [2001] NSWCC 167.
(b)    The words reasonable action should be given a broad construction.[5]
(c)    The question of reasonableness is a matter be determined in all the circumstances of the case. It is an objective test, weighing the rights of the employer against the objects of the employment.[6]
(d)    The consequences of the respondent’s actions must be considered against the reasons given for it.[7]
(e)    Consideration also needs to be given to the manner by which events were implemented.[8]
(f)    Reasonableness is judged having regard to the fairness appropriate in the circumstances, including what went before or after a particular action.[9]
(g)    An extended and continuing assessment process may not be a performance appraisal. The process and the time taken to engage in it must be objectively reasonable in all the circumstances of the case.[10]
(h)    If there has been disciplinary action it is necessary, when considering the reasonableness of that action, to have regard to all relevant circumstances, including the seriousness of the conduct that has led to the disciplinary action, the nature of the employer’s business, and the worker’s position in that business.[11]
(i)    Although an employer may be in strict compliance with its enterprise agreement or award requirements, its Human Resources (HR) policy directives in relation to a Disciplinary Procedure or a Grievance Procedure, but compliance with those procedures is not sufficient to establish fairness if the objective circumstances of the case do not establish fairness. Compliance with those procedures and policies of the employer are relevant but compliance cannot establish reasonableness in the absence of fairness in all the circumstances of the case or, in any event, if those processes were not reasonable in all the circumstances of the case.[12]
(j)    When considering s 11(A) the question of causation must be addressed by medical evidence. This will depend on all the circumstances of the case. There may be numerous factors contributing to causation of the injury to the applicant and medical evidence is necessary to establish the causation of a psychological injury.[13]
(k)    When determining whether the applicant’s medical condition was caused by the respondent’s reasonable actions, as identified in s11(A), the question of wholly causative or predominantly causative must be considered separately. It must be one or the other.[14]
[5] Foster AJA (Sheller and Santow JJA agreeing) Commissioner of Police v Minahan [2003] NSWCA 239; 1 DDCR 57.
[6] Geraghty J Irwin v Director-General of Education NSWCC 14068/97, 18 June 1998.
[7] Armitage J Ritchie v Department of Community Services [1998] 16 NSWCCR 727.
[8] Truss CCJ Ivanisevic v Laudet Pty Ltd unreported, 24 November 1998.
[9] Burke J Melder v Ausbowl Pty Ltd [1997] 15 NSWCCR 454.
[10] Geraghty J Dunn v Department of Education and Training [2000] NSWCC 11; (2000) 19 NSWCCR 4, Neilson J. Bottle v WeilandConsumablesPty Ltd [1999] NSWCC 135.
[11] Roche DP Baldwin v Greater Building Society Ltd [2011] NSWWCCPD 18.
[12] Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65 at [81], referring to Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad [2008] NSWWCCPD 139.
[13] Snell ADP Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130.
[14] Snell ADP Smith v Roads and Traffic Authority of NSW [2008] NSWCCPD 130.
The issue for determination in this application is causation.
The applicant’s sergeant provided a statement.[15] It is the basis of the evidentiary support for the respondent’s application pursuant to s 11A. The supervisor became aware of inappropriate associations by the applicant and his partner through the local football club and in hotels. She spoke to the applicant, the applicant’s partner and another constable in May 2022. In May/June 2022 she had all staff read the Code of Conduct and Ethics, Statement of Values and Declarable Association Policy. All staff confirmed that they had read the documents. She had no particular concerns at that stage. However, she continued to remind all staff of their responsibilities regarding declarable associations.
[15] Reply page 45.
The sergeant provides details of alleged failures of performance by the applicant involving taking time off work, disobeying instructions regarding participation in a game of football and alleged drunken behaviour. There were continuing problems with a particular association, including being friends on Facebook. There were complaints about the applicant being non-productive and failing to attend work. When the applicant went on sick leave there were other outstanding performance issues that the supervisor wished to speak to the applicant about. These allegations have not yet been investigated and established.
The industrial understanding of what constitutes an appraisal or a Performance Improvement Plan is so widely understood in the industrial context of employment relationships that there are very few judicial/tribunal definitions available. A Performance Improvement Plan is a management process, mostly engaged in after a less than satisfactory appraisal, for the purpose of assisting and improving the performance of an employee.
Disciplinary processes or a more formal Performance Management Plans are alternative available options after a Performance Improvement Plan has not resolved performance issues. Formal Performance Management Plans can lead to disciplinary procedures and outcomes. Disciplinary procedures can lead to the termination of employment.
It is a matter to be determined on the facts of each case exactly when a performance appraisal takes place and then ceases, and subsequent improvement processes instituted by management commence.
There is nothing in the procedures engaged in by the respondent that persuades me that there was a performance appraisal process initiated by the respondent in relation to this applicant.
Contrary to the submissions of the respondent[16] staff meetings, or meetings with staff, do not amount to a performance appraisal. They are just meetings. A performance appraisal is a discrete process engaged in for the appraisal of the worker’s performance and identification of achievements and failings. They are conducted one-on-one.
[16] Submissions in Reply paragraph 3.
Conduct and performance issues arose in discussion at meetings but that is not of itself sufficient. Conduct and performance issues can be the subject of informal discussions without those discussions constituting an appraisal or being part of discipline.
A meeting arranged for the purpose of a performance appraisal meeting is a particular type of meeting clearly designated for the discrete purpose of performance appraisal and identified as such.
I am not satisfied that the respondent engaged in any process of performance appraisal when dealing with the applicant’s alleged misconduct. I reject the respondent’s arguments in relation to performance appraisal.
Disciplinary procedures can be very detailed formal structured processes. This would mostly require identification of the unsatisfactory conduct or performance and any meetings would be a meeting specifically purposed to discuss that conduct, and possibly the anticipated outcomes arising if the conduct is not adjusted. In the NSW Police Force a support person or union representative would usually be notified to attend.
The respondent has not provided any documentation establishing that in this case the respondent was following the formal Management Action Guidelines which might give rise to disciplinary outcomes which can include termination of employment processes.
The respondent is a very well-regulated industrial organisation. There are detailed steps necessary to institute disciplinary procedures. In this employment those steps would need to be initiated to commence discipline as referred to in s 11A.
The applicant refers in its submissions to the absence of any identification of those formal steps in the submissions of the respondent. There are none referred to.
The respondent responds that a formal s 111A application need not be commenced for action in response to misconduct to amount to discipline. This is correct. That would be extreme.
In some circumstances and in less structured employment discipline can involve less formal engagement at the commencement of a disciplinary process. However, on the facts before me in this case I am satisfied that the sergeant was not engaging in discipline of the applicant when he became incapacitated and ceased work. She was having difficulty with him and was responding in a reasonable manner to those difficulties, but she had not commenced to engage in discipline of the applicant in accordance with any of well enunciated procedures of the New South Wales Police Force.
There is a factual dispute between the parties as to whether the applicant’s conduct amounted to misconduct. Much of the respondent’s submissions concern the conduct of the applicant’s partner and are of little assistance to the Commission.
I make no finding regarding the merit of the complaints against the applicant. That is a matter to be determined by a disciplinary process if, and when, it occurs. The Commission is not concerned to determine whether the conduct of the applicant amounted to misconduct in these particular circumstances, whether instead there was bullying and harassment of the applicant or whether the applicant perceived himself to be bullied or harassed. The issue is whether the applicant’s supervising officer was engaged in discipline of the applicant over those issues when the applicant became incapacitated.

The absence of engagement in the appropriate disciplinary steps will be relevant if any steps are taken to terminate the employment of the applicant. However, in this case I am satisfied that the sergeant was not engaged in discipline of the applicant.
I am not persuaded any orders as to anonymity are required.

SUMMARY

For the reasons set out above the Commission will make the findings as set out on page 1 of the Certificate of Determination.

[2024] NSWPIC 54

9 February 2024