Webb v State of New South Wales - [2019] NSWWCCPD 50

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Webb v State of New South Wales [2019] NSWWCCPD 50
APPELLANT:	Edward Webb
RESPONDENT:	State of New South Wales
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-6724/18
ARBITRATOR:	Mr P Sweeney
DATE OF ARBITRATOR’S DECISION:	5 April 2019
DATE OF APPEAL DECISION:	13 September 2019
SUBJECT MATTER OF DECISION:	Section 11A(1) of the Workers Compensation Act 1987 – whether the injury was wholly or predominantly caused by reasonable action taken by the employer in respect of discipline; Kushwaha v Queanbeyan City Council [2002] NSWCC 25; 23 NSWCCR 329, George Weston Foods Ltd v Bogdanoski [2011] NSWWCCPD 62 considered; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95, Department of Education and Training v Sinclair [2005] NSWCA 465; 4 DDCR 206, Dennis v NSW Fire Brigades [2007] NSWWCCPD 165, Soutar v The Commissioner of Police [2006] NSWDC 95, Mascaro vInner West Council [2018] NSWWCCPD 29 considered and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Turner Freeman Lawyers
Respondent:	Bartier Perry
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 5 April 2019 is revoked, and the following findings and orders are made in its place: (a) The applicant suffered a psychological injury arising out of or in the course of his employment on 21 April 2017. (b) The injury was not wholly or predominantly caused by reasonable action with respect to discipline pursuant to s 11A of the Workers Compensation Act 1987. (c) The respondent is to pay the applicant weekly compensation pursuant to s 36 of the Workers Compensation Act 1987 from 22 April 2017 to 15 May 2017 at the rate of $1,418.35 per week. (d) The respondent is to pay the applicant’s treatment expenses pursuant to s 60 of the Workers Compensation Act 1987. (e) The claim for lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the degree of whole person impairment in respect of the applicant’s psychological injury.

INTRODUCTION AND BACKGROUND

Mr Edward Webb (the appellant) was employed by the State of New South Wales (the respondent) at Nepean Blue Mountains Local Health District as an Aboriginal Health Worker.
On 20 April 2017, the appellant was contacted by the respondent’s Director of Allied Health and Community Programs, Mr Kevin Hedge, and advised that he was required to attend a meeting in relation to a confidential matter on the following day.
On 21 April 2017, the appellant attended the meeting with Mr Hedge. Ms Rebecca Wilson, the respondent’s Human Resources Business Partner, was also in attendance.
The appellant was advised that an allegation of misconduct had been made against him, which had allegedly occurred outside of the workplace, in the appellant’s home. The appellant was advised that an investigation would take place, his name would be placed on a service check register, and he would be transferred to office duties while the investigation took place.
The appellant ceased work on that day and remained off work until 16 May 2017. Following an investigation of the matter, the appellant was completely exonerated.
The appellant made a claim for weekly payments, treatment expenses and a lump sum pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act) in respect of 16% whole person impairment. The claim was denied by the respondent on the basis that the injury was wholly or predominantly caused by reasonable action taken by the respondent in respect of discipline, within the meaning of s 11A(1) of the 1987 Act.
The matter proceeded to arbitration. It was common ground between the parties that the appellant suffered a psychological injury as a result of being advised of the allegation. The Arbitrator delivered an oral decision. He determined that the actions of the respondent in conducting the meeting were reasonable, and in accordance with s 11A(1), constituted action with respect to discipline, hence the injury was not compensable.
The appellant appeals the decision.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act (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.”
Both parties indicate that they are content for the appeal to be determined on the papers.
I have had 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 those documents. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. The decision of the Arbitrator is a final decision, so that leave to appeal is not required.

THE EVIDENCE

Given there are no issues in relation to injury and incapacity, and the limited issues on appeal, it is not necessary to summarise all of the evidence relied on in the proceedings. A summary of the relevant evidence follows.

The appellant’s statement evidence

The appellant provided a statement to the respondent’s investigator dated 8 May 2017.[1] The appellant said that he received a telephone call from Mr Hedge on 20 April 2017, advising him that he was required to attend a meeting about a confidential matter the following day. The appellant said he queried the subject matter of the meeting but was told that it would be discussed in the meeting.
[1] Reply to Application to Resolve a Dispute (Reply), pp 111–118.
The appellant described how he felt a bit restless about the upcoming meeting, as he had never before been contacted by Mr Hedge about having to attend a meeting. He said he attended the meeting with Mr Hedge, and Ms Wilson was present, although he did not remember her name. The appellant said that Mr Hedge asked if the appellant was all right, and said that there was no easy way to do what he was about to do. Mr Hedge advised the appellant of the allegation and the details of it. The appellant said he disputed the allegation, and noted that the incident that gave rise to the allegation allegedly occurred in October of the previous year. He could not understand why the allegation from a year before was now being made, or why he was being spoken to when nothing had occurred. Additionally, the incident was alleged to be something that occurred in his home, and was not a work issue.
The appellant said that he was shocked and flabbergasted. He was upset that the respondent had turned the allegation into a work issue. The appellant said that he felt like a criminal. He felt worthless and ashamed. The respondent had previously been trying to get the appellant to reduce his hours for health reasons. The appellant began to think that the respondent was acting this way in order to force him to reduce his hours.
The appellant stated that he answered the respondent’s questions to the best of his ability. He reported that he asked the respondent if he needed to consult a solicitor, and was told that it was not necessary. He also queried why the issue was being raised at work, and was advised by the respondent that the matter had been brought to its attention, and it was required to deal with the allegation.
The appellant was advised that he could continue to work, but not in his usual duties. He was transferred to the office, told not to discuss the allegation with anyone and was provided with the details of a counsellor through the Employee Assistance Program. The appellant said he returned to his office, but was too upset to work, and attended his general practitioner.
The appellant gave details of the treatment provided to him, and described how he was anxious about what was going to happen.
The appellant provided a further statement dated 20 December 2018[2] for the purposes of these proceedings. The appellant repeated the evidence in relation to the telephone call on 20 April 2017 and the meeting the following day. He stated that he was not given any prior details or warning about the seriousness of the subject matter of the meeting. The appellant described being ashamed, mortified, and felt he was being treated as a criminal. He said he was upset that the respondent had made the allegation its business, when the incident was alleged to have occurred in his home. The appellant said he thought that the respondent did not believe him.
[2] Application to Resolve a Dispute (ARD), pp 143–146.
The appellant spoke of the difficulties he experienced in the period after he ceased work. He complained that the investigation was dragging on, his colleagues were aware of the ongoing investigation, he had run out of leave entitlements, and his community would have noticed his absence. He said he was embarrassed and stayed at home.
The appellant was critical of the investigation process and the lack of information provided to him about it. He was not provided with the report until 30 January 2018.

Ms Wilson’s evidence

Ms Wilson provided a statement dated 12 May 2017.[3]
[3] Reply, pp 30–35.
Ms Wilson advised that on 23 March 2017, she received notification from the General Manager of Community Health and the Manager of the Building Strong Foundations Service (the BSF) that a mandatory report to the child protection hotline of child related offences involving the appellant had been made.
Ms Wilson indicated that the respondent received confirmation from Family and Community Services (FACS) that the matter would not be investigated because of insufficient information. Ms Wilson advised that in circumstances where external bodies were not investigating a matter, it fell upon the respondent to conduct the investigation.
Ms Wilson said that she conducted a risk assessment to determine whether it was safe for the appellant to remain in his position during the investigation. She formed the view that, as the appellant’s role required some exposure to working with children, the appellant should be placed on alternate duties. Ms Wilson said that she then forwarded the risk assessment to Mr Hedge to be signed off by him. She then notified the Human Resources Manager and the Director of Workforce People and Culture, as was required by the policy guidelines.
Ms Wilson stated that there was a delay in the sign off because the respondent was attempting to implement a co-ordinated response from the complainant (who was a client of the respondent). The assessment was signed off on 6 April 2017.
Ms Wilson advised that the respondent’s name was entered on the Service Check Register on 12 April 2017, and on 21 April 2017 she and Mr Hedge met with the appellant to notify him of the allegation. Ms Wilson said that this constituted the initial notification discussion in accordance with the departmental policy. Ms Wilson stated that she took notes of the meeting, which she subsequently typed up as a confidential file note of the issues discussed.
Ms Wilson said that on 28 April 2017, Mr Hedge and the Director of Workforce People and Culture appointed her as the investigator. On 3 May 2017, she telephoned the appellant to advise him that she would be conducting the investigation, and that there was no need for any further interviews. Ms Wilson also advised the appellant that he would receive the report, when it was completed and he would have a period of two weeks to provide a response to it.
Ms Wilson asserted that the above actions and processes were all done in accordance with the respondent’s Managing Misconduct Policy and the Policy Directive in respect of a child related allegation against staff.
Ms Wilson provided copies of those relevant policies and a copy of her file note of the meeting on 21 April 2017.
At the time of making her statement, Ms Wilson’s investigation had not been completed.

Mr Hedge’s statement

Mr Hedge provided a statement dated 5 June 2017.[4]
[4] Reply, pp 85–90.
Mr Hedge advised that he was informed of the allegation made against the appellant. He confirmed that, due to the nature of the allegation, he was obligated to advise the appellant of the allegation.
Mr Hedge further confirmed that a meeting was arranged between him, the appellant and Ms Wilson. Mr Hedge said that at the meeting, he explained the purpose of the meeting to the appellant and outlined the allegation to the appellant, who appeared genuinely shocked. Mr Hedge said that he advised the appellant of his obligation to discuss the matter with FACS, that the respondent was required by policy to undertake investigation into the matter, and that the respondent was required to place the appellant’s name on the Service Check Register. Mr Hedge said that Ms Wilson also advised the appellant that the respondent was required to notify the NSW Ombudsman.
Mr Hedge noted that the appellant was concerned that he would be noted as a sex offender, but Mr Hedge assured him that that would not be the case. Mr Hedge further assured the appellant that the complaint was only an allegation, and that the respondent was not pre-judging the case.
Mr Hedge advised that the appellant denied the allegation, confirmed that there had been a woman and her child living at his home at the time, and mentioned that his cousin, who also lived with him, had a mild intellectual disability and at times her communication was misconstrued.
Mr Hedge stated that he asked the appellant to maintain confidentiality, and informed him that he would need to be moved to alternate duties, which was only a temporary measure.
Mr Hedge said that both he and Ms Wilson discussed the investigation process with the appellant, who inquired as to whether he needed legal representation. Mr Hedge advised the appellant that he would have the opportunity to respond verbally and in writing to the investigation, and gave the appellant a letter detailing the allegation, a copy of the relevant policy and a copy of the entry in the Service Check Register.
Mr Hedge recalled that Ms Wilson provided the appellant with information about the Employee Assistance Program.
Mr Hedge said that he inquired whether the appellant was all right, and the appellant said many times that he was shocked, and would not do such a thing. Mr Hedge observed that the appellant’s response during the meeting was one of shock and disbelief, and the appellant was noticeably upset.
Mr Hedge indicated that he had read Ms Wilson’s file note of the meeting, and he agreed that it was an accurate record of what was discussed at that meeting.

Ms Wilson’s file note of the meeting

The file note[5] confirmed that, at the meeting, the appellant was provided with details of the allegation made against him by a client of the BSF. The appellant immediately related the complaint to his cousin, who had an intellectual disability, and a woman and child who had been living with him at the time. Ms Wilson noted that the appellant appeared shocked, and denied the allegation and any inappropriate behaviour.
[5] Reply, pp 37–38.
Ms Wilson noted that Mr Hedge advised the appellant that the complaint was merely an allegation and that the respondent had not drawn any conclusions or formed any judgment about them. Mr Hedge further advised that while the respondent needed to support the complainant, who was its client, the respondent wanted to ensure that the appellant felt supported through the investigation process.
The file note recorded that Mr Hedge also advised the appellant that:
(a)    the matter had been referred to the Child Protection Hotline and the NSW Ombudsman was notified, as required;
(b)    the appellant’s name had been placed on the Service Check Register;
(c)    FACS was not taking any action;
(d)    because the matter was not being investigated by the Police or FACS, and it concerned only an allegation, the appellant did not require legal representation;
(e)    the appellant was to undertake alternate duties while the investigation was conducted, as a temporary measure to meet the respondent’s child protection obligations;
(f)    the appellant could have a support person at any future meetings;
(g)    the appellant would have an opportunity to respond to the report on the investigation;
(h)    the respondent had an obligation to investigate the matter, and
(i)    the appellant was required to maintain confidentiality about the allegation.
The appellant acknowledged that child-related concerns had to be taken seriously. All parties acknowledged that balancing confidentiality and conducting the investigation was difficult. The appellant raised concerns about his reputation. Mr Hedge explained how the Service Check Register operated.
The appellant was invited to provide his thoughts about who would be appropriate to interview, and the appellant suggested various people.
The appellant was provided with a copy of the letter of allegation, the relevant policy and a copy of the Service Check Register entry, as well as details of the counselling service provided through the Employee Assistance Program.

The policy documents

The policy document in relation to managing misconduct[6] confirmed that the respondent’s manner of advising the appellant of the allegation in a face to face meeting and the content of what was discussed conformed with that policy. It also indicated that the meeting to inform the appellant of the allegation was “separate from and precedes any process to resolve the matter (such as an investigation).”[7]
[6] Reply, p 36.
[7] Reply, p 36.
The Policy Directive in relation to child related allegations also confirmed that the respondent’s actions were consistent with that policy.[8] In particular, clauses 5.3 and 5.4 required that a non-work related matter must be managed in accordance with the policy, including reporting the matter to the Child Protection Helpline, making other relevant notifications, and completing an investigation.[9]
[8] Reply, pp 39–59.
[9] Reply, pp 54–55.

THE ARBITRATOR’S REASONS

The Arbitrator delivered oral reasons for his decision on 2 April 2019.
The Arbitrator provided a summary of what occurred at the meeting on 21 April 2017, and noted that following the investigation, the appellant was exonerated on the basis that there was no satisfactory evidence that the appellant had engaged in inappropriate conduct. The Arbitrator further noted that the appellant’s shock at the allegation was understandable, and that the respondent conceded that the appellant had suffered a psychological injury as a result of the meeting. The Arbitrator identified that the issue requiring determination was whether the appellant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline.
The Arbitrator summarised the parties’ submissions. He said that the appellant submitted that the meeting on 21 April 2017 was not in respect of discipline. It was convened to comply with the respondent’s statutory obligation to investigate allegations of an employee’s reportable conduct involving children. The appellant submitted that the meeting was antecedent to any action with respect to discipline. In the alternative, the respondent’s actions were not reasonable because the appellant was not forewarned of the subject of the meeting. The Arbitrator noted the respondent’s submission that the words “with respect to” connoted a wide disciplinary process, and relied on the Court of Appeal decision in Northern NSW Local Health Network v Heggie[10] as authority for the proposition that action with respect to discipline can include the entire course of the investigation.
[10] [2013] NSWCA 255; 12 DDCR 95 (Heggie).

The Arbitrator reviewed the evidence of Ms Wilson, Mr Hedge and the appellant.
The Arbitrator further referred to the parties being in agreement that the appellant’s psychological injury was wholly or predominantly caused by the meeting on 21 April 2017. He identified that the only issues for him to determine were whether the meeting and the matters discussed at the meeting constituted matters with respect to discipline, and if so, were the respondent’s actions reasonable. The Arbitrator noted that the onus of proving those matters rested with the respondent. Applying Heggie, the Arbitrator observed that it was not necessary to give consideration of the reasonableness of the “balance of the investigation.”[11] He said it was unnecessary to consider what transpired between the parties after 21 April 2017 and noted that the parties agreed to that approach at the arbitration.
[11] Transcript of the Arbitrator’s reasons (T1), Webb v Nepean Blue Mountains Local Health District, (6724/18, 2 April 2019) T1 9.29–31.
Nonetheless, the Arbitrator said, the investigation process did shed some light on the issues in the matter. The Arbitrator noted that the meeting and subsequent investigations were undertaken in accordance with the policy statement and directive issued by the Department of Health in relation to child related allegations. The Arbitrator identified the legislative framework in which the policy documents arose, which were the Ombudsman Act 1974 and its Regulations, the Child Protection (Working with Children) Act 2012 and the Children and Young Persons (Care and Protection) Act 1998.
The Arbitrator observed that it was not submitted at the arbitration that the policy directive and procedures were inappropriate or inconsistent with the legislation. It was also not submitted that the respondent should not have acted on the allegation in the way that it did.
The Arbitrator remarked that the statutory scheme was quite complex, and that the definitions of reportable conduct and reportable incidents in the Ombudsman Act 1974 were extremely wide.
The Arbitrator reviewed the background and facts of the allegation contained in the investigation report and concluded that there was certainly nothing suggesting misconduct on the part of the appellant in the account provided by the appellant’s cousin or the alleged victim to Ms Wilson, the investigator.
The Arbitrator referred to the appellant’s submissions at arbitration that:
(a)    the investigation found that there was no substance to the allegation;
(b)    the meeting was not a disciplinary meeting but was in the nature of a notification;
(c)    Heggie and Department of Education and Training v Sinclair[12] could be factually distinguished because they involved actions by employees, the matters occurred in the course of, or arising out of, employment, and were witnessed by other employees who reported them. In this case, the incident did not occur in the course of employment, and was not witnessed or reported by an employee;
(d)    the policy directive clearly authorised the notification and enquiry, in order to ensure the respondent complies with its legislative obligation, and
(e)    on that basis, the action was not a disciplinary action.
[12] [2005] NSWCA 465; 4 DDCR 206 (Sinclair).
The Arbitrator referred to Sinclair, where Spigelman CJ held that, for the purposes of s 11A(1) of the 1987 Act, the action with respect to discipline extended to the whole process involved in the disciplinary action, including the investigation.
The Arbitrator referred to the publication Statutory Interpretation in Australia, by Pearce and Geddes, and those authors’ consideration of the phrases “in respect of” and “with respect to,” which they said were essentially no different to each other, and were of a “broad import.”[13] The Arbitrator noted that in O’Grady v Northern Queensland Co Ltd,[14] McHugh J said that the phrase “in relation to” requires no more than a relationship between two matters, whether direct or indirect.
[13] T1, 14.2.
[14] [1990] HCA 16; 169 CLR 356 (O’Grady) [27].
The Arbitrator concluded that he could not accept the appellant’s submission that the meeting on 21 April 2017 was not a meeting with respect to discipline. The Arbitrator said that it was not open to find that discipline was not, in any circumstances, an outcome available to the employer after the investigation. He observed that the appellant had good reason to be concerned about the nature of the allegation and the potential effect on his employment, which possibly could have included disciplinary action. The Arbitrator was of the view that the correspondence and the policy directive made it clear that discipline may follow the investigation outcome. He noted that the letter of allegation handed to the appellant at the meeting included a statement that no decisions had been made about the outcome of the investigation on the appellant’s employment. The Arbitrator said that it was implicit that there may have been disciplinary consequences at the conclusion of the investigation.
The Arbitrator reasoned that the respondent’s procedures for dealing with allegations of this nature specifically imported the policy document, with which the respondent was required to comply when it was undertaking the investigation. The Arbitrator said he had little doubt that there would be consequences for the applicant if the allegation had been proven.
The Arbitrator observed that it was relevant that the appellant had been allocated to alternate duties, in that had the allegation been proved, it would likely have affected the appellant’s employment. The Arbitrator concluded therefore that there was a necessary relationship between the meeting on 21 April 2017 and discipline, so that the respondent’s action was with respect to discipline. The Arbitrator rejected the appellant’s submission that the connection between the meeting and the potential discipline was tenuous.
The Arbitrator referred to the fact that the conduct did not occur in the workplace, and said that that fact was insufficient to distinguish this case from the decisions in Heggie and Sinclair. He noted the facts in Sinclair and Heggie were the same as in this case, in that there were allegations of misconduct which the employer commenced to investigate. The Arbitrator further noted that the appellant had been exonerated, but said the end result may have involved discipline.
The Arbitrator turned to the issue of whether the respondent’s conduct was reasonable. He noted the appellant’s argument that the respondent should have given the appellant some warning, and the respondent’s argument that advising the appellant by telephone would be likely to have an adverse impact on the appellant.
The Arbitrator observed that the respondent’s actions did not have to be perfect to be proven reasonable. He said the assessment involved consideration of whether the respondent provided procedural fairness and complied with its obligation for substantive fairness. The Arbitrator concluded that the respondent did comply with those obligations. He reasoned that the respondent acted in accordance with the guidelines, conveyed the information that it was required to do as empathetically as possible in the circumstances, and there was nothing to suggest that the manner in which the action was undertaken was procedurally unfair.
The Arbitrator referred to the Compensation Court decision in Irwin v Director General of School Education[15] and the Workers Compensation Commission decision of Handley ADP in Director General, Department of Education and Training v Pembroke,[16] as authority for the proposition that, in assessing the reasonableness of the action, all relevant factors must be taken into account, including the rights of both the employer and the employee.
[15] Compensation Court of NSW, Geraghty CCJ, 18 June 1998, no 14068 of 1997, unreported.
[16] [2006] NSWWCCPD 182.
The Arbitrator concluded that the respondent had established that its actions with respect to discipline, which were the whole or predominant cause of injury, were reasonable, and the appellant’s injury was therefore not compensable.
The Certificate of Determination issued on 5 April 2019 records:
“The determination of the Commission in this matter is as follows:
1. The applicant suffered psychological injury arising out of and in the course of his employment on 21 April 2017.
2. The respondent has proven that the injury was wholly or predominantly caused by reasonable action taken by it in respect of discipline in accordance with s 11A (1) of the Workers Compensation Act 1987.
3. Award for the Respondent”.

GROUNDS OF APPEAL

The appellant brings three grounds of appeal, alleging error on the part of the Arbitrator as follows:
(a)    Ground one: finding that the meeting on 21 April 2017 was “with respect to discipline”;
(b)    Ground two: incorrectly interpreting the relevant caselaw, and
(c)    Ground three: finding that the meeting was conducted in accordance with the Procedures for Dealing with Misconduct Guideline.

LEGISLATION

Section 11A(1) of the 1987 Act provides as follows:
“11A 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.”

SUBMISSIONS

The appellant’s submissions

Ground one: finding that the meeting on 21 April 2017 was “with respect to discipline”

The appellant submits that the Arbitrator’s finding that the appellant’s conduct was completely exonerated was correct. The appellant says that the Arbitrator’s finding that the meeting was with respect to discipline rests on his conclusion that if the investigation into the appellant had found misconduct, the respondent may have disciplined him.
The appellant contends that one of his arguments before the Arbitrator was that because the appellant had done nothing wrong, the respondent’s actions in scheduling a meeting and communicating with the appellant at that meeting could not be said to be “with respect to discipline”.
The appellant refers to the police investigation, which concluded that the alleged action would not constitute an assault. The appellant further refers to clause 6.2 of the procedure in relation to child related allegations, which requires the respondent to determine whether any substantiated conduct constitutes misconduct before determining whether any remedial disciplinary or other action should be pursued. The appellant says that the clause was the subject of submissions at the arbitration that the meeting was separate from any disciplinary proceedings that would follow.
The appellant says that he also submitted that because the appellant was exonerated, the disciplinary process had never eventuated, so that the meeting could not have been with respect to discipline.

Ground two: incorrectly interpreting the relevant caselaw

The appellant refers to the Arbitrator’s consideration of Heggie, in particular the passage from the judgment of Sackville AJA, where his Honour said:
“A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action [the appellant’s emphasis], including the course of an investigation.”[17]
[17] Heggie, [59].
The appellant points out that the Arbitrator incorrectly attributed that quote to Spigelman CJ’s judgment in Sinclair.
The appellant submits that the Arbitrator erred in the application of Heggie because there was no disciplinary action on foot, which was factually dissimilar to Heggie. The appellant says that both Heggie and Sinclair involved actual disciplinary action against the worker. The appellant maintains that a mere investigation which results in no misconduct cannot be sufficient to be considered “with respect to discipline”. That is, the appellant says, not every investigation about an allegation of misconduct will involve disciplinary action by the employer.

Ground three: finding that the meeting was conducted in accordance with the Procedures for Dealing with Misconduct Guideline

The appellant submits that the Arbitrator was mistaken in determining the meeting was conducted in accordance with the Procedures for Dealing with Misconduct Guideline. The appellant says that the evidence, which was referred to by the Arbitrator earlier in his reasons, was that the meeting was convened pursuant to the Child Related Allegations, Charges and Convictions Against NSW Health Staff Procedures Policy. The appellant submits that clause 6.2 of that document clearly identifies that the Misconduct Policy was a separate policy document that was only relevant if a misconduct finding was made, which did not happen.

The respondent’s submissions

The respondent does not identify which of its submissions relate to each of the errors alleged by the appellant, but responds to the appellant’s submissions in general form.
The respondent submits that the principal thrust of the appellant’s submissions appears to be that because the respondent’s investigation into the alleged conduct resulted in the appellant being exonerated, and no disciplinary action followed, then the meeting could not be said to be “with respect to” discipline. The respondent says that the appellant’s submissions also complain that the meeting could not be an event characterised as “with respect to discipline” because it was convened in accordance with the policy for child related allegations, and not the policy for managing misconduct.
The respondent refers to Heggie, and says that the Court of Appeal, after considering Sinclair, made it clear in the passage cited from Heggie at [78] above, that a broad view should be taken, and that action with respect to discipline can extend to the entire process, including the course of the investigation.
The respondent quotes the following additional passage from Heggie:
“Many actions with respect to discipline, such as suspension on full pay while serious complaints are investigated, are necessarily taken without the employer having the opportunity to establish the full facts. Particularly is this so where an employer has to take into account the safety and well-being of staff, as required by one of the Policy Directives in the present case (New South Wales Policy Directive ‘Criminal Allegations, Charges and Convictions Against Employees (‘PD 2006-026’)).”[18]
[18] Heggie, [62].
The respondent submits that this passage makes it abundantly clear that the characterisation of the phrase “with respect to … discipline” does not depend upon the ultimate outcome of the investigation. The investigation is necessarily undertaken without the employer having the opportunity to establish the full facts.
The respondent observes that in Heggie, the worker was suspended on full pay, and that in this case, the appellant was moved to alternate duties pending the outcome of the investigation.
The respondent contends that the Arbitrator was correct in considering that if the allegation was proved, there would have been consequences affecting the appellant’s employment, which may constitute discipline, and in concluding that there was a necessary relationship between the meeting and action with respect to discipline. The respondent submits that there was abundant evidence to support that conclusion.
The respondent refers to the evidence of Ms Wilson that the meeting was conducted in accordance with the guidelines set out in the Managing Misconduct Policy (which was attached to her statement), and that the meeting formed the initial notification discussion in accordance with that policy. The respondent submits that it is clear from that evidence that the meeting was about the appellant’s alleged misconduct and if proven would result in disciplinary outcomes in relation to the appellant’s employment.
The respondent further refers to the letter which was handed to the appellant at the meeting, which stated that no decisions had been made about the impact of the investigation on the appellant’s employment.
The respondent submits that the Arbitrator was correct when he held that it was implicit that there may have been disciplinary consequences following the conclusion of the investigation.
The respondent further quotes the following passage from Heggie:
“In my opinion, the better view is that the reasonableness of an employer’s action for the purposes of s 11A(1) of the [1987] Act is to be determined by the facts that were known to the employer at the time or that could have been ascertained by reasonably diligent inquiries. The statutory language directs attention to whether the psychological injury was caused by reasonable disciplinary action taken or proposed to be taken by the employer. Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care.”[19]
[19] Heggie, [61].
The respondent submits that, consistent with the above passage, not only is the reasonableness to be measured by the facts known to the employer at the time, but the characterisation of those actions must be done at the time, and without reference to subsequent events.
The respondent concludes that the Arbitrator was correct in holding that the appellant’s injury was wholly or predominantly caused by reasonable actions with respect to discipline and that such action must be characterised at the time it was taken (that is the meeting on 21 April 2017), and not by reference to any subsequent event, including the appellant’s exoneration.
The respondent says that the issue of reasonableness is not challenged by the appellant in the appeal, so that it makes no submissions on that point, save to say that the Arbitrator’s finding that the action was reasonable is correct.

DISCUSSION

As the respondent submits, the challenge to the Arbitrator’s determination does not involve a challenge to his finding that the action taken by the respondent was reasonable. While the appellant pleads three “grounds” of appeal, his complaint can be expressed as the single allegation that the Arbitrator erred in determining that the respondent’s action was with respect to discipline. “Grounds” two and three are simply complaints about the Arbitrator’s reasoning process that led to that ultimate determination, rather than distinct grounds of appeal. I intend to deal with the appeal on that basis, which is consistent with the manner in which the respondent has responded to the appeal.
The right to pursue an appeal from a decision of an Arbitrator is governed by s 352 of the 1998 Act. The scope of the appeal is limited by s 352(5) of the 1998 Act to the identification of error on the part of the Arbitrator, where such error is of fact, law or discretion.
The decision by the Arbitrator that the action taken by the respondent was characterised as “with respect to discipline” for the purposes of s 11A of the 1987 Act is a factual determination. In determining whether the Arbitrator has erred in respect of a finding of fact, the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr[20] have been consistently applied in the Commission. Those principles were recited by Deputy President Roche in Raulston v Toll Pty Ltd[21] as follows:
“…
(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.
The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’”
[20] (1966) 39 ALJR 505 (Whiteley Muir).
[21] [2011] NSWWCCPD 25; 10 DDCR 156, [19]–[20].

The Court of Appeal in Heggie[22] considered the above principles in the context of the Commission’s powers on appeal and said as follows:
“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.”
[22] Heggie, [72].
Applying the above principles, in order for the appellant to succeed on this appeal, he must establish that the Arbitrator, in reaching his ultimate conclusion, overlooked material facts or afforded them too little weight, or that the available opposite inference is so preponderant to the inferences drawn by the Arbitrator that the decision must be wrong. It is necessary to examine the Arbitrator’s reasoning process.
The Arbitrator gave consideration to the relevant authorities dealing with the phrase “with respect to” and the concept of “discipline”. The Arbitrator concluded that he could not accept that the meeting on 21 April 2017 was not part of a disciplinary process. The basis upon which he formed that view was that the authorities established that “with respect to” required no more than a relationship between the meeting and, in this case, disciplinary action (O’Grady), and that action with respect to discipline incorporates the whole of the process, including the investigation (Sinclair, Heggie). The Arbitrator offered the following reasons for concluding in favour of the respondent in respect of whether the actions were with respect to discipline:
“Unfortunately, I am unable to accede to Mr Horan’s submission that the meeting of the 21 April 2017 was not with respect to discipline. In my opinion, it is not open to the Commission to find that under no circumstances was discipline an available outcome to the employer in this case after the investigation. Conversely, the correspondence between the parties suggests that there was reason for the applicant to be concerned about the nature of the allegation and the effect it might have on his employment. The effect that it might have on his employment includes the possibility that discipline was a likely outcome if the allegation was proven. In my opinion, that is made clear by the correspondence and by the policy directives in the matter.
The letter which was handed to the applicant at the meeting makes it clear that the discipline may follow the completion of the investigation. It states that:
‘no decisions have been made about the outcome of the investigation on your employment’.
It is implicit in that, in my opinion, that there may be disciplinary consequences following the conclusion of the investigation.
…
I have little doubt that if the allegations of misconduct had been proven there would have been consequences for the applicant in terms of his employment which may be characterised as discipline.
It should be noted that one consequence of the meeting and the letter that was handed to him on 21 April, was that the applicant was transferred to administrative duties.
… [The transfer] does illustrate the consequences that the applicant may have had encountered if the allegation of inappropriate conduct had been established. Hence, it seems to me that there is a necessary relationship between the meeting and discipline. I find that it was action with respect to discipline.”[23]
[23] T1, 14.8–15.23.
The fact that there was a potential for action with respect to discipline is not sufficient to establish that the action conducted by the respondent in calling the meeting and investigating the complaint could be categorised as disciplinary. In the context of this case, the meeting and the investigation were initiated, not for the purpose of embarking on action in respect of the conduct of the appellant in the workplace, but because in the circumstances, the obligation fell on the respondent to investigate the non-work related allegation, as other relevant bodies determined that further investigation was not warranted. It is very relevant in my view to the question of whether the action was disciplinary in nature, that the conduct complained of did not occur in the workplace, or arise out of the appellant’s employment.
I do not accept the appellant’s submission that the actions could not be disciplinary if the appellant was exonerated. The fact that the appellant was exonerated is not determinative of whether the process that took place was in respect of discipline. I also do not accept that the meeting which caused the appellant’s injury can be separated from the following investigative process when determining whether the action was “with respect to” discipline.
As the Arbitrator observed, the authorities which might assist on how to construe “discipline” for the purposes of s 11A(1) of the 1987 Act are limited. The Court of Appeal decisions in Sinclair and Heggie are relevant, and the Arbitrator made reference to Sinclair in his reasons.
In Sinclair, Spigelman CJ (with Hodgson and Bryson JJA agreeing) observed as follows:
“Furthermore, the case before Sheahan J primarily focused on the whole course of Departmental conduct as constituting the relevant ‘substantial contributing factor’ for purposes of s 9A. His Honour appeared to approach the s 11A issue on the same basis. This is an appropriate course to adopt in a context concerned, and concerned only, with psychological injury arising from matters such as ‘demotion, promotion, performance, appraisal, discipline, retrenchment or dismissal’. Such actions usually involve a series of steps which cumulatively can have psychological effects. More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.
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’.”[24]
[24] Sinclair, [96]–[97].
In his reasons, the Arbitrator said (citation omitted):
“[In] Sinclair, Spigelman CJ held that the reasoning in Commissioner and the Safety and Rehabilitation of Commonwealth Employees v Gregory Charles Chenhall did not apply the section 11A (1) of the 1987 Act. He held that the formulation action with respect to discipline extended to the ‘entire process involved in relevantly discipline, including the course of an investigation’”.[25]
[25] T1, 13.7–15.
Reading this passage from his Honour’s judgment in context, what is required is to identify the cause of the injury, and whether the actions causing the injury were actions with respect to discipline. Where such actions constitute several steps in the process, it is necessary to consider the entire process in identifying whether the action was reasonable. It will be relevant in the characterisation of the actions, to look at the process as a whole in order to reach a conclusion as to whether it constituted action with respect to discipline, or any of the matters referred to in s 11A(1).
In Heggie, Sackville AJA summarised the point by saying:
“A broad view is to be taken of the expression ‘action with respect to discipline’. It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.”[26]
[26] Heggie, [59].
However, in my view, the above passages establish that some part of the process of the actions taken by or on behalf of the employer must have the characteristic of being disciplinary in nature. Each case must be determined on its own facts. In the present case, it is true that the respondent may have instigated a disciplinary process had the allegation been proved. However, in the circumstances where the actions taken by the respondent, that is, where the appellant was not being investigated about any breach of conduct or any blemish in his performance in the workplace, what may or may not eventuate cannot be relied upon to change the characterisation of the actions that did take place.
For some years, the Compensation Court and the Commission adopted the meaning of “discipline” discussed by Neilson CCJ in Kushwaha v Queanbeyan City Council.[27] In Kushwaha, Neilson CCJ gave consideration to whether the term “discipline” should be given a broad or narrow meaning. His Honour recited various dictionary definitions of the word and discussed its etymology. His Honour determined that:
“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).”[28]
[27] [2002] NSWCC 25; 23 NSWCCR 339 (Kushwaha), [151].
[28] Kushwaha, [152].
In Dennis v NSW Fire Brigades,[29] Roche DP applied Kushwaha in determining the meaning of “discipline”. The Deputy President quoted from a further passage from Kushwaha, where Neilson CCJ said:
“I have no hesitation in finding that the process adopted by the respondent, of drawing the applicant’s unsatisfactory work performance to her attention, in asking her to improve that performance, of suggesting ways that could achieve that end, of offering assistance and or training was ‘discipline’ using the wider sense of that word. Accordingly, the respondent has made out a defence under s 11A.”[30]
[29] [2007] NSWWCCPD 165 (Dennis).
[30] Kushwaha, [154].
Deputy President Roche made the following observations:
“There is no suggestion of any unsatisfactory work performance in the present matter. The decision to deny Mr Dennis that use of a car on 9 December 2005 was purely a management decision that did not involve any instruction or chastisement.”[31]
[31] Dennis, [101].
Following the development of subsequent authorities on statutory interpretation, Roche DP observed in George Weston Foods Ltd v Bogdanoski[32] that:
“Even if it is accepted that the definition of ‘discipline’ in Kushwaha is correct, which is open to serious doubt in light of recent authorities on statutory interpretation, there is no evidence that ‘learning and instruction’ imparted to Ms Bogdanoski was the whole or predominant cause of her psychological injury.”
[32] [2011] NSWWCCPD 62, [173].
Acting President Snell also referred to Kushwaha in Mascaro v Inner West Council.[33] In Mascaro, the appellant had been the subject of complaints about her leadership style which were substantiated, and found not to comply with the employer’s standard of conduct. A performance Development and Mentoring Program was implemented. The appellant suffered psychological injury. The Arbitrator’s finding was that the predominant cause of the injury consisted of the following actions by the employer:
(a)    an altercation with a fellow employee in 14 September 2014;
(b)    the communication of adverse findings on 13 and 14 November 2014;
(c)    the requirement that the appellant undergo mentoring;
(d)    the administration of the mentoring program from 12 January 2015, and
(e)    the communication on 16 March 2015 that the appellant needed to repeat the mentoring program due to a lack of satisfactory progress.[34]
[33] [2018] NSWWCCPD 29 (Mascaro), [134]–[135].
[34] Mascaro, [92].
In his consideration of whether those actions constituted actions with respect to discipline, Snell AP made the following observations:
“In Alcan (NT) Alumina Pty Limited v Commissioner of Territory Revenue NT, the plurality said:
‘This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.’ (footnotes omitted.)
It is unnecessary, for current purposes, to deal with whether Kushwaha contains too broad a definition of ‘discipline’. The approach in Kushwaha essentially relied on a consideration of dictionary definitions of ‘discipline’. Some more recent authorities have cast doubt on this approach. The parties’ submissions do not deal with this broader issue in any detail, but direct themselves to whether the factual situation at hand can be appropriately characterised as ‘discipline’. Applying the clear meaning of the text, in my view the Arbitrator did not err, in his conclusion at [95]–[96] of his reasons, that the Council’s relevant actions were ‘with respect to discipline’. This outcome does not depend on the term ‘discipline’ being given a broad meaning consistent with the decision in Kushwaha.”[35]
[35] Mascaro, [134]–[135].
Judge Neilson, in Soutar v The Commissioner of Police,[36] acknowledged that in his decision in Kushwaha, he may have taken too broad an approach. His Honour observed:
“In my view, the facts of this matter are wholly analogous to those in Kushwaha. Accepting, as I did in Kushwaha, that offering support and training to a worker in order to have the worker improve his or her work performance or to do his or her job properly was discipline, then in the current matter there was invoked a disciplinary process. My only concern is that perhaps I approached the matter too broadly in Kushwaha.”[37]
[36] [2006] NSWDC 95 (Soutar).
[37] Soutar, [138].
Similarly, even if Kushwaha was followed in the present case, despite the broad interpretation suggested by Neilson CCJ, there was no process instigated to “discipline” the appellant within the scope of the meaning attributed to it in the more recent authorities or in Kushwaha. None of the actions taken by the respondent in conducting the meeting and performing the investigation fell within the parameters of discipline, as that term is explained.
The Arbitrator took into account the possibility of disciplinary action, which had not occurred, in characterising the action which did occur. No aspect of the steps actually taken in the whole process which did occur had the capacity, of their own, to constitute being disciplinary in nature, as “discipline” has been defined in the various authorities referred to above. This is so whether you apply the broader meaning initially enunciated by Neilson CCJ in Kushwaha, or take the narrower approach suggested by more recent authority.
The Arbitrator also discarded the fact that the complaint was not work related, without giving any adequate reason for doing so. That fact is material to the question of whether the appellant was being disciplined. Applying Whiteley Muir, the failure to take into account a material fact, or give adequate reasons for discarding a material fact as relevant, constitutes error in his decision-making process.
The Arbitrator’s ultimate factual conclusion was based on a consideration of what may have happened (disciplinary action) if a fact occurred (the complaint was proved). Applying Whiteley Muir again, it follows from the discussion above that the Arbitrator’s conclusion that the respondent’s actions constituted actions with respect to discipline was based upon a consideration that was not available to him, and without foundation.
It follows that as the Arbitrator’s reasons disclose error of the kind which allows for Presidential intervention, the decision is set aside.
Section 352(7) of the 1998 Act provides that where an Arbitrator’s decision is revoked, a Presidential member hearing an appeal may re-determine the matter. In the interests of a timely resolution of the matter, and taking into account that the only issues to be determined are whether the respondent’s actions were disciplinary in nature, and whether they were reasonable, it is desirable for me to re-determine the matter.

THE SUBMISSIONS AT ARBITRATION

The submissions on the appeal are limited to addressing the issues raised in the appeal. The submissions which the parties made at arbitration on 15 March 2019 were recorded and I have read the transcript of those submissions. The parties agreed that the predominant cause of the appellant’s injury was the meeting on 21 April 2017. It is not necessary to record those parts of the submissions which were not in issue.

The appellant’s submissions

The appellant submitted that because the predominant cause of the appellant’s injury was the meeting on 21 April 2017, the actions of the respondent are limited to those actions which occurred on the day of the meeting. The appellant said that the actions were not actions with respect to discipline, whether the actions were assessed with the benefit of hindsight or on the basis of what the people involved in the meeting believed them to be at that time. The appellant contended that Mr Hedge was at pains to make it clear to the appellant that the allegation was merely an unproved allegation, and the complaint was not being pre-judged.
The appellant said that the allegation and the matters raised at the meeting were matters that arose wholly away from the workplace, where the appellant was not performing his duties, or within his capacity as a staff member. The allegation was alleged to have occurred at the appellant’s home in October 2016. The appellant submitted that the only connection between the allegation and his employment was the fact that the respondent was required by policy directive to investigate the matter, despite the information coming to the respondent by a third party.
The appellant pointed out that he was subsequently exonerated of the allegation, and referred to the conclusions reached by the police and FACS respectively that the allegation did not constitute an assault, and there was insufficient evidence of the conduct occurring. The appellant asserted that because of the outcome, there was no need for the respondent to commence disciplinary proceedings.
The appellant contended that the policy directive in respect of managing employee misconduct is distinct from the policy directive that required the meeting on 21 April 2017, which was in relation to child related allegations that occurred outside the employment. The appellant said that the policy is not a policy directive that deals with disciplinary matters, but is in place to ensure the respondent complies with its legislative obligations under the various Acts in relation to the protection of children.
The appellant set out the relevant steps that were required under the policy directive.
The appellant referred to both Sinclair and Heggie, and sought to distinguish those cases on the basis that in both Heggie and Sinclair, the allegations were in relation to the employee’s conduct in the workplace, unlike in the appellant’s case. In particular, in Heggie, staff members witnessed the employee’s conduct, so that the investigation was of a disciplinary nature from the outset.
The appellant submitted the meeting on 21 April 2017 was a “notification meeting,”[38] as described by Mr Hedge and the appellant in their statements. Even on a broad view, the appellant said, the meeting could not be considered a disciplinary meeting.
[38] Transcript of the proceedings (T2), Webb v Nepean Blue Mountains Local Health District, (6724/18, 15 March 2019), T2 17.1–5.

The appellant referred to the letter handed to the appellant at the meeting, which made it expressly clear that the investigation was being conducted in accordance with the policy direction applying to child related allegations. The appellant described the potential of future disciplinary action as “speculative.”[39]
[39] T2 29.27.
The appellant submitted that the manner of the meeting was not reasonable. The appellant submitted that he was unaware of what the subject matter of the meeting was to be about, or of the allegation and was “blindsided.” No notice was given to him of those matters before the meeting. Further, he did not have a support person at the meeting, and had no real idea of why the meeting was taking place.

The respondent’s submissions

The respondent submitted that it had a statutory duty to respond to the allegation, and that duty extended to the protection of the community at large. The respondent contended that the manner in which it responded was totally fair and reasonable, and consistent with its policy obligations. The respondent asserted that it would not have been better to advise the appellant over the telephone about the allegation, and that the policy required the respondent to have an initial face to face meeting. The advice of the allegations, the respondent said, needs to be conveyed in circumstances where the person has the opportunity to think, consider the allegation, and respond, which was done in this case.
The respondent pointed to the policy directive, which sets out the content of what is to be addressed in the meeting, that included a statement of the possible disciplinary outcomes. The respondent said that that makes it quite clear that the meeting was part of a disciplinary process. The respondent further pointed out that the letter handed to the appellant at the meeting referred to the reasons for the decision to take the action, which was based on a consideration of the risk, and did not mean that a decision on the outcome had been made. The respondent asserted that this established that the action taken was procedurally fair.
The respondent referred to Heggie and the observations of Sackville AJA that a broad view should be taken of the action with respect to discipline, and that it can be extended to include the course of the investigation. The respondent said that it would be unfair to have disciplinary action without an investigation, but the investigation does not have to end with disciplinary action being undertaken.
The respondent contended that it was very clear that the action from the beginning to the end was in respect to discipline, and that a potential outcome put the appellant’s employment at risk. The respondent further referred to the requirement that the matter remain confidential, and submitted that to make a distinction between this meeting and what followed was an artificial distinction.
The respondent further referred to the evidence of Ms Wilson, and her file note, and said that it was abundantly clear that matters raised at the meeting were clearly explained to the appellant. The respondent described the meeting as being conducted properly, sympathetically and reasonably, but that it was unequivocally part of a process that could lead to discipline in respect of an allegation that was very serious in nature.
The respondent also referred to the appellant’s statement evidence, which it said showed that the details of the allegation were laid out, and the appellant was well aware of what the meeting was about. The appellant was also advised that his duties would be altered, which surprised the appellant. The respondent pointed out that the investigation disclosed that the appellant’s duties required him from time to time to have unrestricted and unsupervised contact with children, which explained the transfer.

CONSIDERATION

I have discussed the authorities in Heggie and Sinclair above, that require the whole process involved in the employer’s action to be taken into account in the assessment of whether that action constituted “discipline” for the purposes of s 11A of the 1987 Act. In accordance with those authorities, the initial meeting on 21 April 2017 (which was agreed to be the cause of the appellant’s psychological injury) cannot be considered in isolation from the respondent’s action in investigating the allegation, when determining whether the action can be characterised as action with respect to discipline.
I have also referred to and quoted from the various authorities that explain the term “discipline” in the context of s 11A.
The more recent authorities indicate that what is involved in “discipline” stems from action taken in respect of the worker’s conduct or performance in the workplace, or arising out of the worker’s employment (Dennis). Discipline can include offering support and training to improve performance (Soutar). As Snell AP determined in Mascaro, communicating adverse findings as to conduct in employment, requiring and administering a mentor program intended to improve performance, and advising that the worker’s mentoring program was to continue because of the worker’s unsatisfactory progress are all matters that fall within the scope of “discipline.” Of course, what was referred to by Neilson CCJ in Kushwaha as the narrow definition of discipline, chastisement, and actions implementing adverse consequences for inappropriate behaviour in the workplace will also be matters of discipline.
As I observed when considering the Arbitrator’s determination, the actions taken by the respondent in the present case were not undertaken for any of those purposes and were not in response to the appellant’s work practices. On that basis, and for the reasons expressed by me for determining error on the part of the Arbitrator, the actions taken by the respondent are not actions with respect to discipline.

Reasonable action

If I am wrong in respect of my determination that the action taken by the respondent was not disciplinary action, then consideration must be given as to whether the respondent’s actions were reasonable.
The appellant’s arguments at arbitration were limited to assertions that the appellant should have been advised of the allegations prior to the meeting, and provided with a support person at that meeting. The appellant asserts that he was “blindsided.”
There is nothing in the appellant’s submissions, or for that matter in the evidence, that supports an assertion that the respondent did not act reasonably in respect of the actions it took. The onus, however rests on the respondent to establish that its actions were reasonable.
A review of the relevant policies in place reveals that the actions were undertaken in complete accordance with the respondent’s obligations and in the manner specified within the relevant policy. The policy directive for dealing with such allegations was clearly intended to provide the respondent with a procedurally fair pathway in which it was required to deliver a difficult message and undertake a transparent process for investigating the complaint.
As the Arbitrator observed, there was no submission made that the policy directive or the prescribed procedures were inappropriate, or inconsistent with the legislation. Further there was no submission made that the respondent should not have acted on the allegation.

CONCLUSION

Although the actions taken by the respondent were reasonable, the respondent’s defence to the claim is not made out on the basis that the actions taken were not with respect to discipline for the purpose of s 11A(1) of the 1987 Act. As a consequence, the respondent is liable to pay the appellant the weekly compensation and treatment expenses claimed.
The respondent did not dispute the weekly compensation claimed in Part 5.2(b) of the ARD (schedule of earnings). That figure is $1,418.35, which is 95% of the figure of $1,493.00 claimed in Part 5.1 of the ARD. The appellant’s schedule of earnings claims $1,418.35 per week from 21 April 2017 to 15 May 2017. The period of compensation was also not disputed by the respondent. I note however that the appellant attended work on 21 April 2017, which is the day the meeting took place. On that basis, I find that the respondent is liable to pay the appellant weekly compensation pursuant to s 36 of the 1987 Act from 22 April 2017 to 15 May 2017 at the rate of $1,418.35 per week. I also find that the respondent is liable to pay the appellant’s treatment expenses pursuant to s 60 of the 1987 Act.
The appellant also claimed compensation in respect of 16% whole person impairment of his psychological injury pursuant to s 66 of the 1987 Act. In the absence of an agreement between the appellant and the respondent in respect of the assessment of the whole person impairment, it is appropriate to remit the matter to the Registrar for assessment of the degree of whole person impairment.

DECISION

The Certificate of Determination dated 5 April 2019 is revoked, and the following findings and orders are made in its place:
(a) The applicant suffered a psychological injury arising out of or in the course of his employment on 21 April 2017.
(b) The injury was not wholly or predominantly caused by reasonable action with respect to discipline pursuant to s 11A of the Workers Compensation Act 1987.
(c) The respondent is to pay the applicant weekly compensation pursuant to s 36 of the Workers Compensation Act 1987 from 22 April 2017 to 15 May 2017 at the rate of $1,418.35 per week.
(d) The respondent is to pay the applicant’s treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.
(e) The claim for lump sum compensation is remitted to the Registrar for referral to an Approved Medical Specialist for assessment of the degree of whole person impairment in respect of the applicant’s psychological injury.

Elizabeth Wood

DEPUTY PRESIDENT

13 September 2019