Whittle v State of New South Wales (Hunter New England Local Health District)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Whittle v State of New South Wales (Hunter New England Local Health District) [2021] NSWPIC 319
APPLICANT:	Richard Leon Whittle
RESPONDENT:	State of New South Wales (Hunter New England Local Health District)
MEMBER:	Paul Sweeney
DATE OF DECISION:	01 September 2021
CATCHWORDS:	WORKERS COMPENSATION - Worker suffers psychological injury when suspended from work as a registered nurse following complaints of misconduct by other staff; employer denies entitlement to compensation on the basis of reasonable action with respect to discipline within section 11A(1); discussion as to whether provision and tender of primary material evidencing complaint/s was a prerequisite for proof of reasonableness of worker’s suspension and investigation; State of New South Wales v Stokes considered; held that the evidence required to establish reasonableness depends on the circumstances of the case; not a prerequisite to proof of reasonableness that a worker be furnished with all relevant primary material prior to a factual investigation; reasonableness might be inferred from the circumstances of the case; Held - workers injury in this case was predominantly caused by reasonable action in respect of discipline; award for the respondent.
DETERMINATIONS MADE:	1. Award for the respondent.

STATEMENT OF REASONS

BACKGROUND

Richard Leon Whittle (the applicant) has practised as a nurse since 1980. In November 2018, he was employed by the Hunter New England Local Health District (the respondent) as a registered nurse at the Armidale.
On 22 November 2018, the Chief Executive of the respondent was advised by the Australian Health Practitioner Regulation Agency (AHPRA) that a decision had been made to caution the applicant and impose conditions on his registration. This action resulted from the applicant’s conduct while practising in Tasmania in 2017. It was incumbent upon the respondent to monitor the enforcement of these conditions.
The conditions included the following:
(a)the applicant was not to practise as a nurse in charge;
(b)the applicant was to undertake and successfully complete a program of education approved by the AHPRA, and
(c)the applicant was to be supervised by another registered health practitioner when practising as a registered nurse so that the supervisor “is always physically present in the workplace and available to observe and discuss the management of patients and/or performance of the practitioner when necessary and otherwise at daily intervals”.
As the respondent was unable to facilitate this supervision at Armidale where the applicant was working in the emergency department as part of the mental health assessment team, he was transferred to the Manning Base Hospital at Taree in 2019. There, he was supervised by Pamela Kennedy, who is an accredited nurse and clinical supervisor in the Hunter New England Local Health District.
On 29 June 2020, Joshua Louis the service manager of the Manning Mental Health Service advised the applicant by telephone that the respondent had received allegations relating to his conduct in the workplace. He was to be stood down on full pay pending the outcome of an investigation. Generally, the allegations concerned sexual harassment of female staff and patients and bullying and intimidation. He was requested to attend a meeting on Wednesday 15 July 2020, at which Mr McLeod, the Director of Nursing and Mr Andrei, the HR consultant of the Health District would also be in attendance.
On 2 July 2020, the applicant received a letter and email from Mr Louis formally advising him of the allegations of misconduct.
On 7 July 2020, the applicant attended on his general practitioner, Dr Zhang, who diagnosed depression and referred him to a psychologist. On 15 July 2020, the applicant advised Dr Zhang of his intention to claim compensation. The doctor certified him as unfit for work. He has not returned to work since that time.
It is common ground that the applicant’s psychological condition is an injury arising out of and in the course of his employment. However, the respondent has disputed liability to pay the applicant compensation on the basis of s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). By a s 78 Notice dated 12 November 2020, the respondent’s insurer asserted that the applicant’s psychological injury resulted wholly or predominantly from reasonable action taken by the Hunter and New England Local Health District in respect of transfer, discipline and dismissal.

PROCEDURE BEFORE THE COMMISSION

By these proceedings, the applicant claims weekly compensation from 7 July 2020 to date and continuing. He alleges that his incapacity results from the aggravation etc of a disease deemed to have occurred on that date.
When the matter came on for conciliation and arbitration on 14 July 2021, Mr Goodridge of counsel appeared for the applicant and Mr Robison of counsel appeared for the respondent. The conciliation conference and arbitration hearing were conducted audio-visually. During the conciliation phase, I was informed by the parties that they were unable to resolve the issue in dispute. I have used my best endeavours to bring the parties to a settlement. I am satisfied that they had ample opportunity to reach a resolution of the dispute but were unable to fashion a mutually satisfactory outcome.
At the conclusion of the time allocated to the matter, I issued a direction requiring the parties to provide written submissions on the relevance of the reasoning in Rail Corporation NSW v Aravanopules [2019] NSWWCCPD 65 (17 December 2019) (Aravanopules). Those submissions have now been received. Unsurprisingly, the submissions addressed issues other than the decision in Aravanopules.

EVIDENCE

The evidence before the Commission is as follows:
(a)the Application to Resolve a Dispute and the documents attached;
(b)the Reply and the documents attached , and
(c)an Application to Admit Late Documents dated 1 July 2021 and the documents attached.
There was no objection to any of the material referred to above and there was no application to adduce further written or oral evidence.
Apart from a brief foray into the issue of incapacity, the submissions of the parties were confined to the issues of the cause of the applicant’s psychological injury and the reasonableness of the respondent’s actions. Prior to considering the submissions of the parties, it is unfortunately necessary to recapitulate aspects of the relevant evidence in the matter including that of the applicant and Ms Kennedy in the applicant’s case and Mr Lewis, Mr White, and Mr Andrei in the respondent’s case.
What follows is not intended to be a comprehensive survey of the evidence in the matter. Rather, I set out the salient points so that the issues in dispute and the way in which they have been resolved by the Commission can be more readily understood. It is appropriate to commence with the relevant parts of the letter of 2 July 2020 as it is central to the submissions made by both counsel.
Omitting formal parts, the letter is as follows:
“Re: Misconduct Investigation
Dear Richard
I write with respect to formal allegations received in relation to your conduct in the workplace. A preliminary review of the matter has been conducted and an initial assessment completed. In accordance with NSW Health Policy Directive Managing Misconduct [PD2018_031] I can advise that a formal investigation into this matter will now commence. A copy of the policy directive is provided as an enclosure for your information.
As you are aware on Friday, 26 June 2020 you were verbally informed of the decision by Hunter New England Local Health District (HNELHD) to suspend you on full pay pending the outcome of the investigation.
The alleged concerns in relation to your conduct are categorised and summarised as follows;
Sexual Harassment / Sexual objectification of female staff and patients
1.     On Tuesday, 23 June 2020 you groped the bottom of Ms Scott as she was walking out of handover on evening shift.
2.     On Monday, 22 June 2020, on evening shift you held the metal detector in an attempt to scan the body of Ms Kirsty Scott. In so doing said to Ms Scott that you were “searching for her (Ms Scott’s) birth control for later”. You then proceeded to pick lint off Ms Scott’s pants touching her bottom several times in the process.
3.     That you have made the following suggestions to Ms Scott;
-Offered money to be a surrogate for your child
-Verbalised that you would like to go on dates, or take Ms Scott away on romantic getaways and;
-That you “need to be around” Ms Scott.
In addition to the above, you made sexualised comments to other male staff about female staff and patients such as;
“I wouldn’t mind having a piece of that, wouldn’t you?” with reference to Dr Teo That you liked an outfit Dr Teo was wearing as it “hugged her figure”
That you liked what you “saw” with respect to a female patient, her attractive appearance and that she was wearing tights.
Bullying/Intimidation
1.     On 21 June 2020 at approximately 1400hrs near the medication room, you were overheard expressing words to the effect that Ms Lalita Paudel … ‘did not know anything’ and ‘is a dangerous, unsafe nurse’. This was said to the Hospital Security Assistant on shift.
2.     More generally, intimidating Ms Paudel through actions/comments such as;
-Often ignoring or dismissing her direction during shift as the assigned in-charge Nurse
-In instances of conversation, speaking loudly when communicating with her on shift Stating she comes from a poor country and has Tuberculosis
-Saying to Ms Paudel that she can work (instead of Nursing) as a maid to clean your house and that she and her daughter can live with you, in the dog kennel.

Other related concerns are as follows;
-On 21 June 2020 overheard saying that morning shift are “incompetent”, in comparison to evening shift.
-Commencing tea break without advising/checking with in-charge Nurse if appropriate or suitable to do so
-Taking excessive tea break periods during shift. At times, more than one (1) hour in duration
-Demanding the first break, often disregarding the scheduling of breaks by the in charge Nurse

In light of the above and in accordance with the conditions on your professional registration, a notification will be made to the Nurses and Midwife Council/AHPRA.
I request to meet with you on Wednesday 15 July 2020 at 11.00am in Education Room 7, Taree Community Health to attend a fact finding interview to further discuss the allegations and receive your verbal responses. Mr David Mcleod, Director of Nursing and Mr Mark Andrei, Senior HR Consultant will also be in attendance.
The interview will be recorded using a digital recorder. You will be provided with a copy of the record of interview (transcript) and the audio file once available and given the opportunity to comment on whether it is a true and accurate record of the proceedings and to add any further comments for consideration.
You are welcome to invite a support person to this meeting. The role of the support person is to safeguard against unfair practices and to provide a witness should a complaint of unfairness be raised. A support person must be impartial and may be a friend, colleague or union representative.
Pending the resolution of this matter you are directed to comply with the following;
1.     Not to discuss this letter or the investigation of these matters with any member of staff of the Health District (or any other agency), patient or to contact such staff or patients for such purposes.
2.     If you have any questions or require clarification you are directed to discuss these with me.
3.     The exceptions to the above explicit directions regarding contact are:
a)Officers you may speak to in seeking assistance from our Employee Assistance Program (EAP), or other accredited counsellors:
b)Your advisors, legal or industrial (i.e. your lawyer and/or trade union advisor) consulted by you in seeking assistance.
c)You are advised that victimisation of persons involved in an investigation (including complainants) is contrary to NSW Health policy and guidelines and you are directed to engage in such conduct.

Any beach of these directions will be regarded as misconduct and as a serious matter in itself. If such actions occur and are proved, serious disciplinary action will follow up to and including the termination of your employment.
While this process is underway, I encourage you to contact the Employee Assistance Program (EAP)on 4985 3239 if you feel confidential discussions with a qualified counsellor would be of assistance. This service is available to you at no cost.
Should you have any questions or wish to discuss this matter further, then please contact me on 65929541 or Mr Andrei, Senior Hr Consultant on 49853257.”

Joshua Louis

Mr Louis is the health service manager of the Manning Mental Health Service. By his statement of 10 September 2020, he records that the applicant commenced at the Taree Hospital on 11 February 2019. He was subject to the restrictions imposed by APHRA. Pamela Kennedy performed the role of his mentor/clinical supervisor.
Mr Louis records that there was a level 1 grievance relating to the applicant’s communication style on 8 July 2019 which was resolved. There were similar issues on 5 September 2019, and an allegation of bullying on 12 October 2019, “but it is believed that this was also resolved”. He continues:
“There were then no reported issues until 1 June 2020 when there were allegations of a sexual nature made. Further issues arose on 17 June 2020 (breach of confidentiality), 20 June 2020 where an IIMS report was made, 21 June 2020 (inappropriate behaviour) and then on 23 June 2020 where there were allegations of sexual misconduct.”
Mr Louis states that “a fact finding process was undertaken and then HR were advised of this “spiralling situation” on 23 June 2020. He states that at that time a decision was made that applicant be suspended on full pay pending an investigation. He states:
“We needed to make sure that he was safe along with our staff members.”
On Friday 26 June 2020 Mr Louis rang the applicant and advised him that he was suspended on full pay due to “multiple allegations of misconduct”. He advised that a letter detailing the allegations would be sent by email and through the post. He continues:
“I did want to make sure that he was ok. It was evident that he was shaken up, and so I needed to make sure that he was ok to continue with his drive.”
Mr Louis records that shortly thereafter the applicant served a workers compensation certificate of incapacity. Accordingly, the “misconduct investigation has been delayed for he is not at work at this time”.
By his supplementary statement dated 2 June 2021, Mr Louis records that on 24 June 2020, he raised the allegations against the applicant with Human Resources and sought advice as to how to proceed. A risk assessment was completed by Friday 26 June 2020 and “signed and approved by all NSW Health representatives”. On approval of the risk assessment, he was “given the clearance” to advise the applicant by telephone that he was immediately suspended on full pay “following the risk assessment process”.
The witness states that he repeatedly attempted to ring the applicant from 4 pm on 26 June 2020. At 5 pm, the applicant returned his call and he informed him of the respondent’s decision to suspend him. He documented what was said in the conversation in an email to Mr McLeod and Mr Andrei. He sets out the content of the email in his statement. He also records in point form the general tenor of the telephone conversation, which it is unnecessary to reiterate.

Nathan White

By a statement dated 18 June 2021 Mr White, who is the Human Resources Manager of rural and regional mental health services for the HNELH District, states that he became aware of the circumstances the subject of these proceedings in the second half of 2020 after the applicant had been suspended from duty.
Mr White states that “the claim is being managed in accordance with NSW Health policy directive ‘Managing Misconduct’”. He says that it was necessary to suspend the claimant without delay before he was “to attend his next rostered shift on Saturday 27 June 2020”.
Mr White states that in March 2021 the applicant was advised of a medical appointment on 10 May 2021 in Newcastle for the purpose of determining whether he was fit to respond to the misconduct investigation. The applicant did not attend this medical appointment. The applicant did, however, attend a subsequent medical appointment.
On 7 June 2021, the applicant was notified that he was found by the medical examiner fit to participate in the misconduct investigation and was given two weeks to respond. As the applicant did not respond, the respondent determined that it would continue with the investigation. The applicant will continue “to be afforded the opportunity” to engage in the investigation and continue to be updated with respect to the progress of the investigation.

Mark Andrei

Mr Andrei is the senior human resources consultant for the respondent’s mental health services. He states that he was not aware of the matter until he was approached by Mr Louis in June 2020. He states:
“A risk assessment was undertaken and this was signed off by the necessary HNE health executive representatives on Friday 26 June 2020. Mr Louis was then advised to call the claimant prior to the weekend rostered shift on Saturday 27 June 2020. Within the risk assessment, the multiple issues and concerns were highlighted and the recommendation was to undertake a fact-finding investigation in accordance with the HNEH Managing Misconduct provisions and for the claimant to be suspended on full pay with immediate effect.”
Mr Andrei then sets out in detail the attempts made by the respondent to ascertain whether the applicant was medically fit to take part in the investigation. In December 2020, the applicant advised that he was not then capable of participating in the investigation and that future correspondence should be forwarded to his solicitor.
The balance of this statement rehearses matters that have been addressed by Mr White.

The applicant

The applicant’s evidence is contained in signed statements of 9 April 2020 and 25 January 2021. There was no application to cross-examine him at the arbitration hearing.
By his primary statement the applicant recounts that while employed by the respondent at Armidale, he was notified of the restrictions placed on his practice by AHPRA. He says that he was advised by his manager that the clinical supervision required by AHPRA could not be provided at Armidale. After a lengthy delay, during which he took leave, he was advised that there was a suitable position at Taree. He commenced this role in early April 2019. To facilitate his return to Armidale on completion of the requirements imposed by AHPRA, he rented his house and moved into a caravan in Taree.
The applicant recalls “a few incidents” occurring after he commenced at Taree. He recalls an incident where drugs “went missing from the drug room”. He was a potential witness to a theft. He recounts that he was interviewed by Mr Louis. He continues:
“I was advised when I was talking to him that I wasn’t under suspicion for these drugs, but he said to me, verbatim, ‘you are walking around with a target on your back’ and advised me that someone was trying to implicate me in this. The HR consultant, Nathan was in on the interview via video link as well. It appears that I was under suspicion because of the fact that I had asked the question around the policies and procedures a few days prior.”
The applicant recounts that this was the “beginning of everything occurring to me”. He experienced difficulties with his supervisor Priscilla Miombo. He felt that he was targeted by her and Mr Louis had advised that he was “a target”. He states at this stage his anxiety “went through the roof”. He was also troubled by living in a caravan with his dog and “he wanted to get to back [sic] to Armidale and the role there.”

The applicant says that he experienced difficulties in persuading management to correlate his shifts with those of Ms Kennedy so that he could undergo the necessary mentoring and supervision. He continues:
“It was at this time that I first went to see a doctor about my anxiety and explained to him what was happening at work. I went to see Dr Adam Hopkins at Flynn’s Beach, and advised him that I wasn’t sleeping, and that I couldn’t take it anymore. I was starting to get migraines [which I had suffered from as a teenager] and wanted a referral to a neurologist.
He was provided with a medical certificate stating that he “needed to work” with his clinical supervisor Ms Kennedy. He says that the fact that, he worked afternoon shifts with Ms Kennedy caused “enormous resentment” because he was not working night shifts.
In respect of the allegations the subject of these proceedings, the applicant says that he believes that the “issues had been raised by Melissa Mills and her colluding with her “cronies”.
The applicant then recounts the circumstances in which he was suspended. He says over the weekend following Mr Louis’ call he was “in a terrible way”. He suffered anxiety, panic attacks and episodes of blankness. He saw Dr Zhang on 9 July 2020 and was provided with a medical certificate. In July 2020, Dr Zhang issued a workers compensation medical certificate of capacity. He was prescribed Citalopram and referred to a psychologist.
The applicant says that he denies the allegations in the letter of 2 July 2020 and believes that they are “vexatious and malicious”. He expresses the opinion that they emanate from Josh Louis and Melissa Mills. He continues:
“For instance, one of the allegations is from one of the Nepalese nurses. She is simply a subaltern to Melissa, and has no concept at all of mental health. During handover, I asked her to move out of the office while she was on a phone call for, we were talking about patients and it is imperative that patients names are not broadcast. She simply said to me “I don’t care” and didn’t move. The next thing was that I received a notification that I had harassed her.”
The applicant continues thus:
“The allegations also involve sexual harassment, which should they be as serious as what they are made out to be, should be reported to NSW Police.”
The applicant also addresses the current state of his psychological health. He says that he is not “currently capable of returning to work in any capacity”.
The applicant states that the only information he was provided in respect of the allegations made against him was that contained in the letter of 2 July 2020. He states that his solicitor has sought information from the respondent in respect of the “preliminary review” and the “initial assessment” referred to in the letter of 2 July 2020 but no information has been provided in response to that request.
The applicant also revisits the initial telephone call on 26 June 2020 from Mr Louis. He says that he was not provided with information regarding the nature of the allegations during that telephone call. He continues:
“Until I received the letter, I didn’t know what I was alleged to have done. My mind was on overdrive and I was in an absolute state. I had no knowledge if the allegations were in relation to my care of patients, criminal conduct or otherwise. Until I received the letter everything kept going around in my head and I worried about what the allegations could be.”
The applicant reiterates his assertion that the allegations are false. He states that one of the complainants, Ms Scott, kicked, pushed, and punched him during the course of his employment. He states that she had also made comments about her fertility. He continues:
“On the pm in question she pushed my arm on no less 4 [sic] occasions whilst writing reports. I did put my hand on her hips walking past her in the drug room. The area is small, and people touch. I intentionally placed my hands on her hips as she had OFTEN checked my progress using her body. There was no sexual or other manifestation of my action. I did not grope her bottom at the end of the shift. I did run a metal detector over her as I would have over any staff member as they would to be prior to scanning a patient for admission. It was common practice.”
The applicant then denies outright any “sexual statement” in respect of Dr Teo. He states that another complainant, Ms Paudel, “resented any action by fellow staff members that she did not agree with”. He says that she made repeated derogatory comments about his knowledge and experience and he states that she had significant shortcomings as a nurse. He states that he did state that third world countries “may have fared better if the population had been vaccinated against tuberculosis”. That was simply a statement of fact and not a racially based remark.
The applicant concludes by stating that his “injury” has been caused by the conduct of employees of the respondent.

Pamela Jean Kennedy

Ms Kennedy became the applicant’s clinical supervisor in June 2019. She states that during the periods that she supervised the applicant she had weekly discussions and debriefings “around various challenging behaviours that may occur”. She states:
“He is a very senior nurse, and was able to cope very well within the observation unit. This meant that we didn’t literally work neck to neck for I would often be in the nurses station and he would be in the observation unit, but we could discuss what was going on.”
Ms Kennedy says that she was not aware of the specific restrictions on the applicant’s registration however she asserts that:
“I am aware that Josh Louis and Melissa Mills may not have upheld their end of the bargain, and therefore Leon really had to seek out information and guidance as to what he was required to do. It was an awful situation. These persons are the health services manager and the nurse unit manager respectively.”
Ms Kennedy states that she could not fault the applicant’s performance at work. She records that he did have a “flamboyant personality”. She says that “this might be too much for some of the staff”.
Ms Kennedy expresses the opinion that the applicant has been targeted. She states:
“I was aware that there was staff that were being led by another nurse who was there, Carol Ballard. She has been terminated twice and was saying to people on the ward things like “See that man … he’s got restrictions on his registration. If he doesn’t toe the line, he’ll be deregistered”. Carol has all her people that continue to undermine Leon and behaving badly. There is a group of nurses who are also simply jealous of his knowledge and will do anything to undermine him. I would say these behaviours are rabid within the ward.”
Ms Kennedy states that she believes that other employees have been enticed to make complaints about the applicant and that his deregistration by AHPRA was caused by Mr Louis. She states of Mr Louis:
“He has not followed the HNEH grievance policy which looks at mediation or meeting with staff members, but instead goes straight to a nasty punitive letter. I believe that Josh is trying to make it “his way or the highway” and is trying to assert his authority.”
Ms Kennedy also addresses one of the allegations of sexual harassment. She says that she has often heard the applicant say to Ms Scott “stop tickling me” and implies that this behaviour has become the basis for a sexual allegation complaint.

SUBMISSIONS

The submissions of the parties are recorded and it is unnecessary to repeat every argument of counsel. However, in the circumstances of the case it is probably appropriate to set out the thrust of counsel’s arguments before attempting to resolve the issues in dispute.
By his oral submissions Mr Robison identified the cause or causes of the applicant’s injury, the reasonableness of the respondent’s actions which led to it and incapacity as the issues in dispute.
In respect of causation he submitted that the evidence of Dr Zhang, Mr Anderson, Dr Takyar and Dr Anand when properly analysed required a conclusion that it was the actions of the respondent in respect of discipline in June and July of 2020 which were causative of the applicant’s injury.
The nature of the allegations and the applicant’s response raised a question of the truthfulness of the allegations, but this should not deter the Commission from its inquiry into the reasonableness of the employer’s actions. Their truthfulness was largely immaterial to the issue of reasonableness. The culpability of one party or the other was an issue that was still to be determined by an inquiry.
The issue of reasonableness, therefore, turned on the respondent’s actions in late June and early July in investigating the allegations made against the applicant and formulating a response including suspending the applicant from employment. In this respect, he submitted that the letter of 2 July 2020 was quite specific in identifying and particularising the conduct of the worker which was to be the subject of the inquiry.
Mr Robison submitted that the evidence of Ms Kennedy was of limited utility. It was more of a character reference than evidence which addressed the critical issues in the case.
The respondent’s submission briefly touched on incapacity. It was suggested that the evidence of Dr Zhang and aspects of the evidence of Dr Takyar were consistent with the applicant retaining a capacity to perform work outside the nursing profession.
In his submission reply, Mr Robison submitted that much of the oral submission of Mr Goodridge addressed issues that occurred well after the applicant had suffered psychological injury. In accordance with the instruction in Northern NSW Local Health Network v Heggie [2013] NSWCA 225 (Heggie), the inquiry as to the reasonableness of the respondent’s actions in respect of discipline must focus on the incidents which have caused the injury. In this case those events occurred on and before 2 July 2020.
At the commencement of the arbitration, Mr Goodridge handed up written submissions. While the majority of the contents of the document addressed the case law, it contained the following “general submissions” in respect of the case. First, that the employer’s case relied on “unproven and unsubstantiated allegations”, there has been no disclosure of the evidence on which the employer acted, no production of the relevant CCTV footage, and no disclosure of the names of the complainants. The employer’s case, therefore, failed “in limine at the factual and evidentiary level”.
Secondly, the employer had not proven that the applicant’s injury had been wholly or predominantly caused by discipline. He argued that “like many psychological injury cases, there was more at play than a single action on a single day”. He referred to Hamad v Hugh Catering Ltd [2017] NSWWCCPD 6 (Hamad).
Thirdly, Mr Goodridge argued that the employer’s actions in respect of discipline were not reasonable as it had not afforded procedural fairness to the applicant. He submitted that in the Australian context “reasonable” meant “a fair go”.
In his oral submissions, Mr Goodridge returned to many of the themes recorded above. He stressed the absence of statement of evidence from Ms Scott and the other complainants, the respondent’s failure to permit access or put into evidence the CCTV footage and the ambiguity of many of the allegations. The respondent had failed to provide any “primary material whatsoever” from which the Commission could determine the reasonableness of the respondent’s action. In the context of claim and counter-claim such evidence was vital.
Mr Goodridge referred to the unsuccessful attempts by his solicitor to obtain access to the relevant material including statements and the CCTV footage for the purposes of addressing the reasonableness argument. These attempts had been roundly resisted by the respondent’s insurer and the employer.
The applicant, it was submitted was provided with inadequate information to ascertain the truthfulness of the allegations at the time of his suspension. The failure of the respondent to subsequently provide this information was in breach of the mandatory requirements of the respondent’s policy document which required it to provide to the claimant adequate opportunity to respond to allegations.
Then, Mr Goodridge referred to the Managing Misconduct policy in respect of suspension from duty, noting that it was to be a “last resort”. That was not the case here. The policy document, Managing Misconduct (MM), provided that the staff member subject to a misconduct process must be given written advice about the allegations against him or her. That had not happened in this case. While these matters may have occurred after the injury they demonstrated a disregard by the respondent for its own processes.
In respect of incapacity Mr Goodridge submitted that the worker, who was near retirement age and unable to work in his habitual profession was unlikely to have any residual earning capacity.
By the written submissions pursuant to my direction of 14 July 2021, Mr Goodridge returned to the argument that the respondent had failed to apply and follow its own document in respect of the suspension of the applicant. In particular, it had not complied with the pre-conditions in Clause 4.1. MM. The respondent had not considered alternative action including obtaining the applicant’s undertaking not to interact with certain staff or arranging for him to work on shifts where the complainants would not be rostered.
Mr Goodridge also returned to the ambiguity of the allegations. He submitted that the applicant’s comment that Dr Teo’s dress “hugged her figure” may be characterised as a compliment rather than sexual inuendo.
In respect of Aravanopules, he submitted the following:
“Aravanopules does not raise any new principles. It is submitted that the case is merely an application of general principles. Once an employer chooses to not put before the worker and the Commission evidence of the material it allegedly acted upon then there are two consequences:
(a)First, an employer becomes at risk of failing to discharge its evidentiary onus, and
(b)Second, that conduct of failing to provide the evidence purportedly relied upon may itself (as here) be evidence of failure to give natural justice and thus be unreasonable in itself.”
The balance of the submission is a response to the respondent’s assertion in its written submissions that the employer had extended procedural fairness to the applicant insofar as it was necessary in the circumstances of the case.
By its written submission in response to my direction, the respondent submitted that Aravanopules could be distinguished on the facts. It set out a number of reasons, all of which were contested by Mr Goodridge, why procedural fairness had not been impinged by the respondent’s actions in this case. It included the fact that the investigation was “inchoate” and the applicant had declined to take part; that the respondent had not made any decision contrary to the worker’s interests; that suspension (on pay) was appropriate to protect the welfare of other workers; and that the proposed meeting to discuss the allegations never occurred.
Mr Robison also submitted that even if there was a subsequent failure to provide adverse material to the worker it was not causative of the injury and was therefore irrelevant in accordance with the principle in Heggie [2013].

The respondent also submitted that I should determine that the proceedings were complex and gave reasons why I had the power to make such an order.
Mr Robison also forwarded a further submission in answer to the issues raised by Mr Goodridge in his written submissions which fell outside the terms of my direction. These matters, however, had been largely rehearsed in oral submissions at the arbitration hearing.

DISCUSSION AND FINDINGS

The exposition of the law relating to s 11A (1) in Heggie provides a useful starting point for any decision involving the section. In that case, Sackville AJA said this at [59]:
“The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:
(i) 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.
(ii) Nonetheless, for s 11A (1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.
(iii) An employer bears the burden of proving that the action with respect to discipline was reasonable.
(iv) The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.
(v) Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.
(vi) The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.
(vii) If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”
The concept of reasonableness in s11A is not clearly defined in the case law. In Commissioner of Police v Minahan [2003] NSWCA (24 September 2003) the Court of Appeal referred to decisions of the Compensation Court relied upon by Walker J, at first instance, without suggesting that they were erroneous. In Irwin v Director-General of School Education (unreported, 18 June 1998) Geraghty J, stated:
“The question of reasonableness is one of fact, weighing all the relevant evidence. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of “reasonableness” is objective and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances by a question of fairness.”
Then, in Ivanisevic v Laudet Pty Ltd (unreported, 24 November 1998), Truss J, stated:
“In my view when considering the concept of reasonable action the Court is required to have regard not only to the end result but to the manner in which it was effected”.
The judgment in Heggie casts some doubt on whether it is always necessary to consider the rights of the employee. Obviously, it will be necessary to undertake that task in many cases: c.f. Pirie v Franklins Ltd [2001] NSWCC 167 (10 September 2001). I see no reason why this is not such a case.
The case law also establishes that a finding that an employer has not proven that a disciplinary action is reasonable is not a finding that it is unreasonable. But reasonableness does not require the employer’s actions in respect of discipline to be flawless.

Wholly or predominantly

There is a long line of authority emanating from the Presidential Unit of the Commission that the word “predominantly” in s11A can be equated to “mainly”: McCarthy v Department of Corrective Services [2010] NSWWCCPD 7 at [157]. In See v The Commissioner of Police [2017] NSWDC 6 (3 February 2017) Neilson DCJ noted that the word “mainly” was used in the 1987 Act in other contexts. In those circumstances, “predominantly” should be given a different gloss. At [138], he stated:
“Having reviewed the dictionaries and these authorities, I prefer to gloss “predominantly” with the adverb “chiefly”. To me it means much more than merely 51%, which is where “mainly” usually leads. To predominate something must eclipse each other factor and all other factors.”

It is unlikely that the distinction between “mainly” and “chiefly” will cause practical difficulties in determining the issue in this case.
As Hamad makes clear medical evidence is of importance in determining whether an employer’s actions are the whole or predominant cause of a psychiatric injury. Thus, it is necessary to survey the history and opinions of the psychiatrists relied on by the parties in this case. In his report dated 26 November 2020, Dr Takyar, the applicant’s qualified psychiatrist, took the following history:
“Mr Whittle reported that deterioration in his mental state occurred in the course of difficulties at Hunter New England Health. He reported that his initial psychiatric difficulties had earlier commenced at a different role when working at King Island. I had asked him if there was any anxiety or any psychiatric symptoms emerging from difficulties at King Island and he stated, “It certainly was anxiety provoking”. He reported that prior to his injury with Hunter New England Health his anxiety had been intermittent, occurring for 40% to 50% of his working week at a lower grade (3/10-5/10 where 10 is maximal) and he was working 38 to 40 hours a week and functioning psychosocially and occupationally, with three main hobbies and seeing friends regularly. He said that he had depression that was “mild to moderate” rated at 5/10”
In respect of the difficulties that he encountered with the respondent, Dr Takyar records the following of the applicant’s time at Taree:
“He stated that he began to experience difficulties “within two weeks of arriving there – I felt I was being targeted”. He stated that he felt targeted by ‘a number of staff members and one of the managers”. He recalled becoming anxious and getting really uptight about working there” and reported that along with feeling anxious he felt ‘very hypervigilant, started to develop a level of anxiety that I hadn’t experienced before, guarded’. He reported that he stopped work after he was instructed to cease on July 7 this year.
He reported that bullying behaviour included feeling treated in an unequal way – ‘disrespectful they were unprofessional, they relied on inuendo and scuttlebutt and made disparaging comments to others behind my back about me and about my reasons for being there.’”
Dr Takyar expresses the opinion that the applicant had a pre-existing history of mild anxiety and depression which was associated with his work at King Island. This condition was aggravated by interpersonal conflict with the staff members including managers and registered nurses “until he was finally told to stop work in July 2020”. He expressed the opinion that the applicant would not return to work at this time to facilitate recovery and the prospect of a successful return to work with a different health service.
Curiously, while Dr Takyar records that the applicant’s difficulties began “immediately after 6 July this year”, and the preceding complaints about his behaviour, the doctor does not record a history of the allegations of misconduct.
Dr Anand, a psychiatrist retained by the respondent’s insurer, saw the applicant on 21 October 2020 and provided a report dated 9 October 2020. His history is very different to that of Dr Takyar. He records:
“He explained the trajectory of his psychological difficulties. Mr Whittle stated that he received a call from Joshua Louis on 6 July 2020 and Joshua advised him that Mr Whittle had been suspended because of allegations of misconduct and behaviour [sic]. He stated the allegations were unwarranted and unfounded.
He was suspended with full pay. Mr Whittle stated that this came as an absolute shock. He started experiencing severe anxiety, stress, insomnia, nausea, tachycardia, profuse sweating and anxious rumination.”
According to Dr Anand, the applicant denied any mental health issues prior to 6 July 2020. However, the doctor records:
“He did state that he may have had possible mild anxiety on and off because of a couple of reasons:
1. That he felt there was inadequacy of the management; and
2. The bushfires affecting the health of his dog as he lived in the caravan park at the time after relocating to Taree.”
Dr Anand records that the applicant was “devastated by the allegations and the suspension on 6 July 2020” and stated that he had experienced a high degree of stress since that time. According to Dr Anand, the applicant
“again reiterated that he was totally devastated by the suspension and this was the main cause for his psychological problems.”
Dr Anand also thought that the applicant had no capacity for work.
By a supplementary report dated 18 January 2021, Dr Anand considers the opinion of Dr Takyar and the clinical notes of the Flynn’s Beach Medical Centre and states that he remains of the opinion that it was the applicant’s suspension that caused his present psychological injury. He says this:
“I have specifically focused my assessment on multiple areas and I enquired of Mr Whittle during my assessment of what appeared to be the main causation factor and from my assessment I gathered Mr Whittle suffered a psychological injury which led to him going off work due to the notification of disciplinary action with potential dismissal on 28 June as the main predominant cause of his injury.”
It is evident from the excerpts from the medical reports above that the two psychiatrists have obtained radically different histories. Dr Takyar does not record any detailed history of the disciplinary proceedings in late June and early July 2020, whereas Dr Anand extracted a history that the communication of the suspension to the applicant on 28 June 2020 was the predominant cause of his injury.
Mr Anderson, the applicant’s treating psychologist is noncommittal as to the cause of his psychological injury saying no more than it relates to “the incidents ”in the course of his employment at Taree Hospital. Dr Zang records in a report of 29 April 2021 that the case is “complicated”. The applicant felt “stressful” when he became aware of the allegations in Tasmania but did not see a doctor or psychologist. He continues:
“He had to move to work as the mental health nurse In Taree with the restriction of registration. Richard says there Is bullying In the Taree Hospital. Richard always feels stressful but he did not see the doctor. When he got the allegation of bullying/intimidation and sexual misconduct to staff and patients In July 2020, his mental health was deteriorating, with stress, depression and anxiety. His contract was suspended as the result of allegation.”
When asked to express an opinion “as to any causal connection between the incident”, and the injuries sustained the doctor states:
“His mental health was deteriorating after he got the allegation of bullying/intimidation and sexual misconduct to staff and patients in July 2020”.
While Dr Zang is probably correct in saying that that the applicant did not see a doctor as a result of “stress” at Manning Base Hospital before July 2020, he did see Dr Hopkins at the same practice on 30 October 2019. During a consultation that was primarily concerned with migraine and venous insufficiency, the doctor recorded under social history that the applicant was:
“at present in Manning Base Hospital. stressful work environment. sleeping in van during day while working in Taree. poor conditions for sleep.”
It is important to add that the applicant also gave Dr Hopkins history of a “low mood” following a relationship breakdown some 18 months previously which was ”improving”.
In the context of this evidence, it is probable that the disciplinary action in June and July 2020 is the predominant cause of the applicant's psychological injury. In reaching this conclusion, I have relied primarily on the report of Dr Zhang, the notes of the Flynn’s Beach Medical Centre and the opinion of Dr Anand. The deficiencies of history in the report of Dr Takyar detract from the doctor’s opinion. His report does not contain a detailed history of the disciplinary proceedings and is, therefore, of the limited assistance in determining whether they, or other factors, were causative of the applicant’s psychological injury.
It is likely that the applicant experienced psychological problems prior to the disciplinary proceedings. In the note of 30 October 2019 there is a reference to his relationship breakdown but the mood disorder from that was “improving”. The significant restrictions on his right to practice imposed by AHPRA may have caused some “deterioration” in his psychological health. His employment at the Manning Base Hospital was undoubtedly stressful for a number of reasons. It is understandable that a very senior nurse working under supervision would attract attention and, probably, some degree of suspicion. But, contrary to some aspects of the applicant’s evidence, he made no complaint of a deterioration in his psychological condition at the consultation of 30 October 2019 and he did not consult a medical practitioner thereafter until the commencement of the disciplinary proceedings.
This history together with the applicant’s account of the effect on his health of the disciplinary actions, and the florid condition of his psychological condition following the disciplinary actions suggests that these actions are the predominant or chief cause of his injury. These matters are consistent with the history and conclusions of Dr Anand.

Reasonableness

I accept the respondent’s argument that in accordance with the reasoning in Heggie it is the respondent’s actions with respect to discipline which give rise to the worker’s psychological injury that must be proven to be reasonable. This is not a case where the evidence suggests that the actions of the respondent after 2 July 2020 caused or materially aggravated the applicant’s psychological injury. Evidence of the respondent’s actions after that date maybe relevant for contextual reasons. But the respondent does not have to prove that these actions were reasonable to succeed on its defence under s 11A(1) of the 1987.
In my opinion, aspects of the applicant’s attack on the reasonableness of the respondent’s actions are misplaced. They proceed on the basis that the fact-finding Act investigation was the equivalent to a trial after which would determine his culpability in respect of the allegations. Thus, it was critical that he have available the entirety of the material on which the prosecution would rely in order to adequately defend himself. Failure to provide all of that material was self-evidently unfair.
MM defines the investigation quite differently. At Cl 5.1, it states that:
“An investigation proceeds, and is separate from, any final decision by a decisionmaker about whether to accept or not to accept findings and about whether and what further action (disciplinary or other) is required.”
Obviously, the outcome of enquiry might be detrimental to the applicant. Equally, the investigators may conclude that the complaints were vexatious or trivial or that that there was insufficient information to contemplate any charge of misconduct. What was proposed by the letter of 2 July 2000 was a fact-finding investigation antecedent to a determination of misconduct.
MM provides that it is for the “decision maker” to consider the findings of the investigation and reach conclusion as to whether to accept or reject the findings and then decide what actions are to be taken in response to the findings. If misconduct is to be alleged against a staff member then he/she has a right of access to relevant information “sufficient to enable the staff member to understand fully any alleged misconduct”. At that stage the staff member is entitled provide submissions, and any additional information, in respect of the proposed finding and in respect of any proposed penalty.
Mr Goodridge’s submission that the concept of reasonableness in s 11A(1) is consonant with the concept of a “fair go” is probably reasonably close to the mark. The respondent’s disciplinary action must be fair in form and in substance. Procedural fairness, of course, is a chameleon concept. This reflects the concern of the law “to avoid practical injustice”[1]. An employer who acts to dismiss a worker may need to include in the process more rigorous protections than if it was undertaking a factual investigation. In either case, it must be borne in mind that the actions occur in an industrial rather than a judicial context. An employer will rarely be able to emulate the procedures adopted by a court or tribunal.
[1] Re-Minister for Immigration and Multicultural Affairs; Ex parte Lam, (2003) 214 CLR one per Gleeson CJ.
it is also necessary to consider the process as a whole in reaching a conclusion as to reasonableness. In the oft quoted passage from Department of Education & Trainingv Sinclair [2005] NSWCA 465 (20 December 2005) (Sinclair), Spigelman CJ at[97] said this:
“His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation “reasonable action with respect to discipline”. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not. If the ‘whole or predominant cause’ was the entirety of the disciplinary process, as much of the evidence suggested and his Honour appeared to assume, his Honour did not determine whether the whole process was, notwithstanding the blemishes, ‘reasonable action’. For this alternative reason the appeal should be allowed.”
Contrary to Mr Goodridge’s submission, I do not believe that it was obligatory for the respondent to provide the applicant with statement evidence from Ms Scott and the other complainants, or the CCTV footage, for the purposes of the investigation. Conversely, he would undoubtedly be entitled to it if the investigation established that disciplinary action was required. While nothing turns on it, is not entirely clear that there was statement evidence from Ms Scott at this time. MM requires that the staff member concerned should be advised about the allegations against him or her and the advice “must contain sufficient information about the allegations to allow the staff member concerned to provide a considered response.”
The letter of 2 July 2020 sets out in some detail the allegations in respect of sexual harassment and bullying and then presents an overview of other allegations which might generally be described as infringements of the precepts for nursing at the Manning Base Hospital. It seems to comply with the requirements of MM and the principle of fairness. My impression is that it provided the applicant with a clear summary of the allegations made by the complainants and that it placed him in a reasonable position to provide a considered response in writing and at the interview to the allegations.
When considering the process overall, I have the impression that the respondent sought to comply with its policy, and to act to fairly in the fact-finding investigation. It is necessary, however, to consider some of the specific arguments put by the applicant before reaching a final conclusion .
It was argued that without the primary evidence from the complainants the Commission could not be satisfied of the reasonableness of the respondent’s action in commencing an investigation. I do not accept that argument. Mr Louis has given evidence that the complaints about the applicant’s conduct was made and, subject to one matter, there is no good reason to reject his evidence. That is a sufficient basis to find that the investigation was reasonable. Mr Louis’ evidence was not impugned at the arbitration hearing. It is difficult to imagine that he is manufacturing the complaints.
Ms Kennedy suggested in her statement that Mr Louis had not followed the respondent’s policy in commencing the investigation but that does not appear to be established by the other evidence. She also submitted that he had a personal interest in pursuing the applicant. However it is difficult to understand what Mr Lewis might have to gain professionally or otherwise from initiating the enquiry.
While there are many cases where it will be necessary for the respondent to call evidence to prove that a protocol or other action is reasonable, there will be others where it can be inferred from the circumstances that an action is reasonable: see State of New SouthWales v Stokes [2014] NSWWCCPD 78 (26 November 2014). There is nothing in Aravanopules which conflicts with this approach.
The purpose of having the investigation in this case was to establish the credibility of the complaints. It was to establish whether they could be proven or substantiated to adopt the language employed in the applicant’s submissions. Certainly, some of the allegations are of relatively innocuous kind as the applicant submitted. Others are more serious and demand an investigation to establish whether they occurred.
Mr Goodridge submitted that the respondent had failed to apply its own policy document, and had acted unreasonably, in suspending the applicant from duty. He referred to Clause 4 of MM. In short, it states that suspension from duty could only occur after a risk assessment which a demonstrated a potential risk to other staff from a staff member the subject of a complaint . There are other matters which may be justify a suspension arising from s 150 of the Health Practitioner Regulation National Law (NSW) and these may be relevant to this case. The risk assessment prepared by Mr Louis and signed by relevant executives of the respondent is in evidence. It is redacted in parts. However, it includes the following, which may be relevant to this issue.
“The information is credible based on a number of sources. Staff members have approached management (NUM and service manager) with initial emails and follow-up emails with further information. Staff members range from New Graduate RN, junior RN, senior RN, psychologist from Community mental health. All staff have had direct interactions with the employee.”
The risk assessment also said this:
“All witnesses express concern for reprisal from employee. There is a sense of fear that his actions will continue and that they will be subject to his behaviour that is not under direct control by management.”
The risk assessment noted that there was difficulty in rostering the applicant on morning/day shift as there was not “a continuous suitable primary supervisor” available to meet the AHPRA conditions of employment. The applicant’s supervisor worked on evening shift but that involved a risk as there was “less management available during that period”. The risk assessment, therefore, recommended suspension from duty. It concluded thus:
“Recommend suspension from duty pending formal investigation of misconduct. This recommendation is placed due to risk of retribution towards other employees, inability to change shifts to remove from affected staff members, can continues to work in an area that has mental health risk patients-sexual Safety risk/vulnerability risks”.
In my opinion, these matters are sufficient to establish that the applicant’s suspension from duty on full pay was reasonable. I have recently held that a condition imposed upon a worker not to discuss the issue with other members of staff, during the course of a very short investigation, effectively deprived him of his right to interview and secure witnesses to assist in his defence . In that case, however the evidence did not suggest any reason why the worker should be prevented from communicating with workers other than the complainants. The evidence here, however, does suggest reasons why the applicant should be constrained from speaking about the matter with other staff during the course of the investigation.
It was also open to the applicant to request that the respondent obtain statements from those witnesses who might advance his case before, or at the time of the interview, and before any determination had been made in respect of his conduct. In these circumstances, there is no proper basis to conclude that his rights have been impinged by the restriction.

I have reached the conclusion that the applicant’s psychological injury was predominantly caused by reasonable action taken by the respondent with respect to discipline. In this case, the discipline was a factual investigation to determine if complaints made by other staff members at the Manning Base Hospital were true. In those circumstances, I make an award for the respondent.

[2021] NSWPIC 319

01 September 2021