Woodside Energy Ltd v Kieronski - [2019] WADC 64

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   WOODSIDE ENERGY LTD -v- KIERONSKI [2019] WADC 64
CORAM:   GLANCY DCJ
HEARD:   18 JULY 2018
DELIVERED          :   9 MAY 2019
FILE NO/S:   APP 12 of 2018
BETWEEN:   WOODSIDE ENERGY LTD
Appellant
AND
CATHERINE KIERONSKI
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram:   ARBITRATOR EKANAYAKE
File Number             :   A 12976 of 2018

Catchwords:

Appeal - Workers' compensation - Disease caused by stress - Meaning of 'discipline' - Stress arising wholly or predominantly from worker's expectation of discipline - Relevance of worker's subjective perception and concerns - Whether questions of law involved

Legislation:

Safety, Rehabilitation and Compensation Act 1988 (Cth)
Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal on grounds 1 and 2 refused

Representation:

Counsel:

Appellant	:	Mr G P Bourhill
Respondent	:	Mr J R Brooksby

Solicitors:

Appellant	:	Jackson McDonald
Respondent	:	Donna Percy & Co

Case(s) referred to in decision(s):

Catholic Education Office of WA v Granitto [2012] WASCA 266
Comcare v Martin [2016] HCA 43; 339 ALR 1
Department of Education v Azmitia [2014] WADC 85
Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; 163 CLR 500
FAI General Insurance Co Ltd v Goulding [2004] WASCA 167
Housing Industry Association Limited v Murten [2004] WASCA 139
Kieronski v Woodside Energy Ltd A12976, WCAS, 28 October 2015
Kieronski v Woodside Energy Ltd, A12976, WCAS, 10 January 2018
Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744
O'Leary v Edith Cowan University (Unreported, CM 108/02 (Packington JR) 20 February 2004
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Pilbara Iron Company (Services) Pty Ltd v Suleski [2017] WADC 114
Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147
Woodside Energy Ltd v Kieronski [2016] WADC 144

GLANCY DCJ:

Introduction

On 10 January 2018 the arbitrator, Arbitrator Ekanayake, found Ms Kieronski was entitled to compensation for an illness caused by the way in which she had been treated in Woodside's workplace (Kieronski v Woodside Energy Ltd, A12976, WCAS, 10 January 2018).
Woodside has appealed that decision.
Leave to appeal is required.
For the reasons set out below I would refuse leave to appeal.

Background

By way of background:
1.In October 2011 Ms Kieronski had developed a work induced psychiatric condition (stress) which rendered her unfit for work for a period of time. That stress developed when she was accused of breaching Woodside's Code of Conduct in relation to use of confidential information. Ms Kieronski was cleared of any wrongdoing and issued with an apology. Ms Kieronski received compensation pursuant to the Workers' Compensation and Injury Management Act 1981 (WCIM Act).
2.Upon her return to work in December 2012, Ms Kieronski took up the role of marketing liaison officer; a role which she was occupying on 13 August 2013.
3.On 13 August 2013 Ms Kieronski was called to a meeting with her supervisor and Woodside's employee relations manager who, informed her, in a general sense, of allegations made against her about conduct which, if true, would be a breach of Woodside's Code of Conduct. Ms Kieronski was informed that the allegations were to be investigated and that she would be required to attend an interview as part of the investigation and she was told that because the allegations were so serious she was to be stood down on full pay until the matter was resolved. Ms Kieronski's security pass and company telephone were taken from her (ultimately she was provided with another phone which contained her personal contacts). She was then escorted to her desk to collect her personal belongings and accompanied home in a taxi.
4.On 13 August 2013, Ms Kieronski, suffered stress (more particularly 'generalised anxiety disorder').
5.In the week following 13 August 2013, the foreshadowed interview was organised for 12 September 2013. The meeting was held at the office of PricewaterhouseCoopers, who provided services to Woodside. Ms Kieronski had asked that it be held at her solicitor's office. That request had been refused. The meeting was lengthy.
6.Ms Kieronski's employment was ultimately terminated on 19 November 2013.
On 28 October 2015, the arbitrator, Arbitrator Powles (Kieronski v Woodside Energy Ltd A12976, WCAS, 28 October 2015), awarded Ms Kieronski compensation for that injury under the WCIM Act on the basis that Woodside's treatment of Ms Kieronski:
1.amounted to discipline; and
2.the discipline was unreasonable and harsh.
On 29 September 2016, following an appeal by Woodside, Parry DCJ (Woodside Energy Ltd v Kieronski [2016] WADC 144) set aside Arbitrator Powles' decision of 28 October 2015 and remitted the matter to the arbitration service for a different arbitrator to determine according to law.
As I have said, on 10 January 2018, Arbitrator Ekanayake again awarded Ms Kerionski compensation. He did so because he found that:
1.Woodside's process was not discipline (reasons for decision [193] – [194]);
2.although an expectation of a matter mentioned in s 5(4) of the WCIM Act was a factor contributing to Ms Kieronski's stress, her stress (and therefore disease), did not wholly or predominantly arise from that expectation. Rather, the arbitrator found that Ms Kieronski's stress predominantly arose from her perceived loss of reputation, sense of injustice, and need to 'clear her name' (reasons for decision [9], [149] – [171]).
The arbitrator also found that, in the event that he was wrong in his conclusion that the meeting on 13 August 2013 was not discipline, he was satisfied that Woodside's conduct, from 13 August 2013 until Ms Kieronski's termination, as a whole was unreasonable and harsh (reasons for decision [200]).

Grounds of appeal

Woodside accepts that the stress suffered by Ms Kieronski on 13 August 2013 meets the definition of 'injury' for the purposes of the WCIM Act. It accepts that Ms Kieronski's employment contributed, to a significant degree, to her contracting the injury.
However, Woodside says that Ms Kieronski's injury is not compensable under the WCIM Act because it is a disease caused by stress which wholly or predominantly arose from disciplinary action which it was then taking against her which was not unreasonable and harsh, or alternatively, from her expectation of discipline or dismissal.
In its notice of appeal dated 6 February 2018, Woodside raises three grounds of appeal. They are:
1.The learned registrar erred in law, alternatively in fact and law, by concluding that the respondent's stress did not arise predominantly from the expectation of discipline within the meaning of section 5(4) of the WCIMA.
2.The learned registrar erred in law, alternatively in fact and law, by concluding that the appellant's actions on 13 August 2013, considered in isolation, were not 'discipline' within the meaning of section 5(4)(a) of the WCIMA.
3.The learned arbitrator erred in law, alternatively in fact and law, by concluding that the appellant's conduct on 13 August 2013 (or at any relevant time thereafter) was harsh and unreasonable within the meaning of section 5(4) of the WCIMA.
Woodside seeks orders that the orders made by the arbitrator on 10 January 2018 be quashed and Ms Kieronski's application (A 12976) be dismissed.

Notice of contention

Ms Kieronski has filed a notice of contention dated 30 May 2018 in which it is said that the arbitrator could have reached the same conclusion on different grounds.
First, Ms Kieronski contends that it was not necessary for the arbitrator to find, as he did, that the whole of the disciplinary process was unreasonable and harsh. Rather, it was only necessary for the arbitrator to find that Woodside's conduct after 13 August 2013 did nothing to vitiate its conduct prior to that date, which had been found by Parry DCJ to have been unreasonable and harsh.
Second, Ms Kieronski submits that once any part of a disciplinary process is unreasonable and harsh the process cannot be rendered reasonable and not harsh by surrounding conduct which also forms part of the process. Accordingly, she says that once the conduct of 13 August 2013 was found to be unreasonable and harsh, it followed that she was entitled to compensation.

Issues in the appeal

The issues arising for determination in this appeal are therefore:
1.Was Woodside's process discipline?
2.If so, was it unreasonable and harsh?
3.If it was not discipline, did Ms Kieronski's stress arise predominantly from her expectation of a matter in s 5(4)(a) or s 5(4)(b) of the WCIM Act?

Jurisdiction of this court to determine appeal

By s 247(1) of the WCIM Act, a party to a dispute before the arbitrator may, with the leave of the District Court, appeal to the District Court against a decision of the arbitrator where written reasons for the arbitrator's decision under pt XI are given to a party.
Section 247(2) of the WCIM Act provides that, subject to s 247(3), the District Court is not to grant leave to appeal unless certain criteria are met. In this case Woodside says that a question of law is involved (the criteria provided in s 247(2)(c)).
An appeal under s 247 of the WCIM Act is by way of review of the decision appealed against: s 247(5). No fresh evidence, or evidence in addition to or substitution for the evidence received in relation to the decision appealed against can be given without the leave of the court: s 247(6) of the WCIM Act. In this case neither party sought to introduce fresh evidence.

Relevant statutory provisions

By s 18 of the WCIM Act, an employer is liable to pay compensation 'if an injury to a worker occurs'. Compensation is to be paid in accordance with sch 1 of the WCIM Act.
The term 'injury' is defined in s 5(1) of the WCIM Act and includes:
…
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
…
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in paragraph (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer.
Section 5(4) of the WCIM Act, relevantly provides:
For the purposes of the definition of injury, the matters are as follows:
(a)the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment; and
(b)the worker's not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and
(c)the worker's expectation of –
(i) a matter; or
(ii)a decision by the employer in relation to a matter,
referred to in paragraph (a) or (b).
The word 'disease' is defined in s 5(1) of the WCIM Act as including 'any … mental ailment, disorder, defect, or morbid condition whether of sudden or gradual development'.

Question of law required

As I have set out above, the District Court may only grant leave to appeal when a question of law is involved: s 247(2) of the WCIM Act.
Once an error involving a question of law has been identified, the District Court must then, by reason of s 247(5) of the WCIM Act, conduct a real review of the arbitrator's decision: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [20] – [25] (Wheeler JA); Catholic Education Office of WA v Granitto [2012] WASCA 266 [56] - [57] (Murphy JA).
Where, following the grant of leave, a review is undertaken by the appellate court, the appellant must still provide a proper basis for disturbing the arbitrator's decision by demonstrating some error in it: Pacific Industrial v Jakovljevic [20], [26].
In order to establish that a question of law is involved, it is necessary to show that an error of law or an error of mixed law and fact has occurred. In that regard, several principles can be drawn from the relevant authorities, including the recent Court of Appeal decision of Suleski v Pilbara Iron Company (Services) Pty Ltd [2018] WASCA 147 [19] and Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744. They are:
(1)a finding of fact in the absence of any supporting evidence is a question of law;
(2)whether there is evidence of a fact is a question of law;
(3)whether an inference can be drawn from facts is a question of law;
(4)there is no error of law simply from the making of a wrong finding of fact;
(5)want of logic is not synonymous with an error of law;
(6)whether facts as found meet a statutory definition is a question of law;
(7)taking into account irrelevant considerations is an error of law;
(8)failing to take into account a relevant consideration is an error of law;
(9)where a statute uses words according to their common understanding and the question is whether the facts found fall within these words, the question is a question of fact; and
(10)where it is necessary to engage in a process of construction of the meaning of a word or phrase in a statute, a question of law will be involved but the question may be a mixed one of law and fact.

Burden of proof

The onus of proving that a potentially excluded matter or the expectation of that potentially excluded matter is not wholly or predominantly the cause of the worker's stress rests with the worker: CatholicEducation Office of WA v Granitto [68] – [76] (Murphy JA); O'Leary v Edith Cowan University (Unreported, CM 108/02 (Packington JR) 20 February 2004) [12] – [15]; Pilbara Iron Company (Services) Pty Ltd v Suleski [2017] WADC 114 [32] (Herron DCJ).
So too the onus of establishing that the discipline is unreasonable and harsh is on the worker Pilbara Iron Company (Services) Pty Ltd v Suleski [33].

Ground of appeal 2 - was Woodside's process discipline?

Woodside says that the arbitrator erred in law, or alternatively an error of mixed fact and law, in finding that the cause of Ms Kieronski's stress did not arise wholly or predominantly as a result of discipline within the meaning of s 5(4) of the WCIM Act.
Ms Kieronski says that the issue does not raise an error of law because whether Ms Kieronski's stress arose from discipline is a question of fact.
Although the arbitrator found that it was not necessary to determine whether the meeting between Ms Kieronski and Woodside on 13 August 2013 was 'discipline' because of the approach he had taken to the issue of the cause of the stress, he nevertheless went on to consider the issue (reasons for decision [172] – [194]) and came to the view that the events of that day did not constitute discipline (see reasons for decision [194]).
In coming to that view, the arbitrator referred to Herron DCJ's analysis of the authorities concerning the meaning of discipline in Pilbara Iron Company (Services) Pty Ltd v Suleski and his Honour's conclusion that what constitutes discipline is a conclusion of fact to be determined from the evidence in each particular case. At [139] his Honour said:
The correct statutory construction of the word 'discipline' in s 5(4)(a) requires that it be given its natural and ordinary meaning in the context of the definition of 'injury'. However, it is also important to emphasise that what is discipline in any particular situation must be construed and determined in the context of the terms and conditions which govern the employment relationship. That would normally involve consideration of any written contract of employment, any industrial instrument or order regulating the terms of employment and any internal policies and guidelines, including codes of conduct, regulating the rights and obligations of the employee and the employer. In particular, any written guideline or protocol regulating work performance and dealing with discipline would clearly be relevant. An employer's actions relevant to its employee's work performance and whether it is discipline for the purposes of s 5(4)(a) can only, in my view, be properly determined in the context of an understanding of how all those matters, if they exist, relate to each other and operate together. What might be discipline in one matter might not be discipline in another case where different disciplinary guidelines, codes of conduct and protocols apply.
Applying that reasoning, the arbitrator came to the view that at the point in time when Ms Kieronksi contracted her disease (stress) she was not engaged in a disciplinary process. He based that view, in large part, on Woodside's own code of conduct, (there were two versions which applied throughout the relevant time) which delineated between investigations and discipline. In particular, the arbitrator referred to the second version of the code of conduct which stated that disciplinary action will be taken where a contravention of the code of conduct has been established following investigation (see reason for decision [190]).
The arbitrator also had regard to the fact that the distinction between the processes was consistent with the language used by Woodside throughout the process and with what Woodside told Ms Kieronski and her treating doctor orally and in writing. They had both been told that the meeting of 13 August 2013 and the subsequent meeting she was required to attend were investigatory and not disciplinary, and (consistent with the terms of the code of conduct) that disciplinary action may follow if the investigatory process established a contravention of Woodside's policies: (see [63] of the reasons for decision).
At [192] ‑ [193] of his reasons for decision the arbitrator said:
In some ways I can understand why Woodside took the action it did to stand Ms Kieronski down, given the gravity of the allegations made against her. However, whilst it may have been a prudent step, in my view, that does not make it discipline in the context of Woodside's own processes.
In the absence of the prescriptive nature of the Commonwealth statutes with respect to discipline, I consider the best evidence is the procedure set out in Woodside's Code of Conduct and the actual procedure it followed. In this case Ms Kieronski had not reached the point of discipline.
Woodside submitted that the word 'discipline' is not defined in the WCIM Act and is not used in that Act according to its common understanding. It submitted that the interpretation of what constitutes discipline therefore involves at least a mixed question of fact and law.
In Housing Industry Association Limited v Murten [2004] WASCA 139, Le Miere J, with whom Steytler and EM Heenan JJ agreed, said at [20] ‑ [21]:
The word 'discipline' is to be given its ordinary meaning. It must be interpreted in context. The context in which it appears is as follows. The effect of s 18 of the Act read in conjunction with the definition of 'disability' in s 5, is that a worker who in the course of his employment contracts a disease caused by stress is entitled to compensation. The proviso to the definition of disability limits the instances in which a worker who contracts a disease caused by stress will be entitled to compensation. Thus a worker is not entitled to compensation where the disease was caused by stress that arose wholly or predominantly from the matters set out in para 5(4)(a), unless there has been conduct that is unreasonable and harsh on the part of the employer. The matters set out therein include the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment.
That is the context within which the word discipline is to be defined. It should therefore be given its ordinary meaning in an employment context. It is not helpful to attempt to define the outer boundaries of what is included within 'discipline'. However, it clearly includes the issue of a written warning such as the written warning of 17 April 2000 given by the appellant to the respondent.

I respectfully agree with the approach taken by Herron DCJ in Pilbara Iron Company (Services) Pty Ltd vSuleski to the determination of what constitutes discipline in any particular case.
In this case it is clear that the arbitrator understood the nature of the statutory inquiry he was required to undertake in order to determine whether Woodside's conduct on 13 August 2013 amounted to discipline. The answer to that question involved a question of fact. There was evidence before the arbitrator from which he could reasonably come to the conclusion that the process in which it was then engaged was not discipline and therefore no error of law was made in coming to that conclusion.
It follows that I would refuse leave in relation to ground of appeal 2.

Ground of appeal 1 – did Ms Kieronski's stress arise wholly or predominantly from an expectation of discipline?

Woodside says that the arbitrator erred in law, or alternatively in fact and law, in finding that Ms Kieronski's stress did not arise wholly or predominantly from the expectation of discipline.
Woodside submits that an error of law, or mixed fact and law, was made because the arbitrator misapprehended the test to be applied in determining whether stress 'arises from' an expectation of a matter in s 5(4) of the WCIM Act.
The arbitrator accepted that the expectation of discipline or dismissal was an active matter contributing to Ms Kieronski's stress on 13 August 2013. However, he formed the view that it was not the whole or predominant matter from which her stress arose. Rather, as I have already noted, the arbitrator found that the predominant causes of Ms Kieronski's stress were her perceived loss of reputation, her sense of injustice and the need to clear her name (see reasons for decision [9], [153] - [154]).
Ms Kieronski says that no error of law or of mixed fact and law arises because the issue involved a question of fact.
Woodside submits that it is implicit in the arbitrator's findings that Ms Kieronski's perceived loss of reputation, her need to save face and her fixation with disproving the allegations which had been made against her were all a direct result of the events of 13 August 2013 and that, on that basis, it was illogical for the arbitrator to distinguish (as he did) as a cause of stress the consequences of the discipline, dismissal or expectations thereof from Ms Kieronski's reactions to those matters.
Woodside also submits that it would be contrary to the purposes of s 5(4) of the WCIM Act, containing the vitiating elements for a stress claim, to avoid those by focussing on the individual worker's response to discipline or expectation thereof and to use that as the basis for a finding that the cause was something other than discipline, or an expectation of discipline.
If the arbitrator failed to appreciate what was encompassed by the words 'arise from' in s 5(4) of the WCIM Act, then he will have made an error of law. However, if, correctly appreciating what is meant by that term, he simply came to a view of the facts based on evidence before him, then he will not have erred in law even if that view of the facts differs from that which I myself may have reached on that same evidence.
Starting then with the issue of the meaning of the words 'arise from'.
The Macquarie Dictionary defines the word 'arise' as 'to come into being or action; originate; appear'; and 'arise from' as 'to result or proceed from'. The New Shorter Oxford English Dictionary defines 'arise' as 'spring up from; come into existence'.
The term 'arising out of' was considered in Dickinson v Motor Vehicle Insurance Trust [1987] HCA 49; 163 CLR 500. In that case the High Court was concerned with the meaning of the words 'arising out of the use of' a motor vehicle where a child suffered severe burns in a fire which started when her brother was playing with matches when they were left in the car by their father while he went to buy records from a record shop. In the course of its decision the Full Court observed (at [11]) that the test posited by the words 'arising out of' was wider than that posited by the words 'caused by'. The court said that although they accepted that it required some causal or consequential relationship between the vehicle and the injuries it does not require a direct or proximate relationship which would be necessary to conclude that the injuries were caused by the use of the vehicle.
In Pilbara Iron Company (Services) Pty Ltd v Suleski Herron DCJ considered an appeal from a decision to award worker's compensation in circumstances where the worker suffered an injury, described as stress and anxiety, which was said to have arisen from his experiencing of bullying and threats by management in the course of his employment. The worker had strongly disagreed with his employer's decision to place him on a performance management plan ('PMP') because he regarded himself as a long term employee who had performed his duties well and diligently and took exception to his supervisor's criticism of his performance. His Honour found that it was having been placed on the PMP which caused the worker to make complaints about bullying and harassment and being unfairly treated and which ultimately resulted in him contracting the stress disease. His Honour accepted the evidence of doctors and psychologists was that it was the placing of Mr Suleski on the PMP that was the cause of stress, and that the stress predominantly arose from that action. His Honour stated at [78] ‑ [79]:
Whether Mr Suleski's perception that he was treated unfairly was reasonable or unreasonable, it is clear that perception was a reaction to the decision by Pilbara Iron to place him on the PMP. If the PMP is not an excluded matter, relevantly is not discipline, Mr Suleski will have established his employment contributed to a significant degree to the contraction of the disease and will be entitled to compensation …
… If the reason for considering what was Mr Suleski's perception and for finding that his perception was that he was treated unfairly was for the purpose of determining whether there were employment factors other than the implementation of the PMP which were contributing factors and contributed to a significant degree to the contraction of the disease … it was unnecessary to consider that matter because Mr Suleski's perception only arose from the fact of the implementation of the PMP. It is clear from the evidence, particularly the medical evidence, that the disease suffered by Mr Suleski would not have been suffered if he had not been placed on the PMP.
In Comcare v Martin [2016] HCA 43; 339 ALR 1, the High Court was concerned with the interpretation of s 5A of the Safety, Rehabilitation and Compensation Act 1998 (Cth) which was similar in its terms to the provision in this case. The High Court said at [42]:
Causation in a legal context is always purposive. The application of a causal term in a statutory context is always to be determined by reference to the statutory text construed and applied in its statutory context in a manner which best effects its statutory purpose …
The purpose of the exclusionary clause in the WCIM Act and in legislation in similar terms has been the subject of considerable judicial consideration.
In FAI General Insurance Co Ltd v Goulding [2004] WASCA 167 [13], Murray J said:
To this point it would appear to be clear that the policy of the Act, to which its terms give effect, is to extend the concept of compensable disability to any work-caused disease contracted in the course of the employment, whether at or away from the place of employment, provided that a disease caused by stress cannot constitute a compensable disability if the stress itself results from what may be described as the management processes referred to in section 5(4), unless those processes of the employer are seen to be unreasonable and harsh.
In that same case Steytler J at [39] said:
… the obvious purpose underlying the exclusion is to prevent the bringing of claims for compensation as a consequence of stress-related diseases that wholly or predominantly arise out of specified incidents of the employment relationship which, by their very nature, are particularly stressful, but which are not harsh and unreasonable on the part of the employer.
In Comcare v Martin, the High Court considered the exclusionary clause in s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) which provided that a disease suffered as a result of administrative action taken in a reasonable manner in respect of the employee's employment was not a compensable injury under that Act. When dealing with the issue of the cause of an employee's stress, and whether it was the result of administrative action taken by the employer, the High Court said:
[44]… In excluding from the definition of an injury compensable under the Act a disease that is suffered by an employee 'as a result of' reasonable administrative action taken in a reasonable manner in respect of the employee's employment, s 5A(1) is naturally read as referring to the contribution made to the suffering of the disease by an event in the course of the employee's employment which answers that description of reasonable administrative action.
[45]When the exclusionary phrase is so read, it becomes apparent that an employee has suffered a disease 'as a result of' administrative action if the administrative action is a cause in fact of the disease which the employee has suffered. The administrative action need not be the sole cause. There may be multiple causes, some of which might even be related to other aspects of the employee's employment. What is necessary is that the taking of the administrative action is an event without which the employee's ailment or aggravation would not have been a disease: it would not have been contributed to, to a significant degree, by the employee's employment.
[46]That reading conforms to the purpose of the exclusion. The purpose was described in the explanatory memorandum to the Bill for the Amending Act as being to 'ensure that the wide range of legitimate human resource management actions, when undertaken in a reasonable manner, do not give rise to eligibility for workers' compensation' and as including, in particular, to prevent claims 'being used to obstruct legitimate management action by excluding claims where an injury (usually a psychological injury) has arisen as a result of' such action. The taking of administrative action in respect of an employee's employment was in that way sought to be insulated from need for concern about the psychological effect of the decision on the employee. This purpose would be defeated if the operation of the exclusion were dependent upon the subjective psychological drivers of the employee's reaction.
[47]Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment. (My underlining)
While the words 'as a result of' which are used in the Commonwealth legislation considered in Comcare v Martin are different from 'arising from' used in the WCIM Act, the purpose of the exclusion is the same.
Ms Kieronski submitted that the approach to causation (essentially the application of the 'but for' test) taken in Comcare v Martin is not available in Western Australia given the very different wording of the legislation.
In my view, having regard to the meaning of the phrase 'arising from' and the purpose of the exclusion in the WCIM Act, there is no reason to apply a test other than that as expressed in Comcare v Martin.
In Ms Kieronski's case, there was no evidence before the arbitrator (I do not understand it to have been suggested by Woodside that there was) that Ms Kieronski's concerns about the need to save face and restore her reputation were engendered by anything other than the events of 13 August 2013. For example, there is no evidence that the stress was caused by conflicts with co‑workers, bullying or from an excessive workload. Indeed, there was no evidence that, absent Woodside putting the allegations to her on 13 August 2013 in the general sense in which they did, telling her that those allegations would be being investigated, standing her down, taking her phone and security pass and escorting her from the workplace, Ms Kieronski would have suffered stress causing her to be unfit for work.
It must therefore be the case that but for the events of 13 August 2013 Ms Kieronski would not have suffered from stress.
If Woodside's relevant conduct had been characterised as discipline, I would have accepted that Ms Kieronski's stress was not compensable. To do otherwise would have been contrary to the purpose of the exclusion of stress arising from such a process. This would be the case even though Ms Kieronski's subjective concerns were more concerned with loss of face and reputation than loss of employment. In that situation, whatever her thoughts, Ms Kieronski's stress would have arisen wholly or predominantly from discipline.
But, where actual discipline is not involved, what is required for compensation to be excluded is that the stress arise wholly or predominantly from an expectation of:
(a)dismissal, retrenchment, demotion, discipline, transfer or redeployment; or
(b)not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment.
In my view, therefore, it is necessary to consider the arbitrator's reasons in some greater detail in order to understand his finding about from what Ms Kieronski's stress predominantly arose, bearing in mind it was accepted that she did have an expectation of discipline and that that expectation did contribute (in part) to her stress.
At [158] and following the arbitrator said:
[158]During cross-examination, Ms Kieronski gave evidence that her name was more important than her job ... I considered that this evidence was an honest and candid reflection of her world view, and consistent with the evidence given by both parties as to what Ms Kieronski was focussed on during the investigations.
[159]As set out in Woodside's Closing Submissions … Ms Kieronski gave evidence that she wanted the investigation to be completed so that she could 'clear her name', and continued to repeat her innocence whilst giving evidence.
…
[161]I consider this desire was amplified following her previous workers' compensation claim in which she had similar allegations made against her, that were ultimately determined to be unsubstantiated.
[162]This concern over her reputation and need to clear her name are clearly set out in the medical reports of Dr Edwards-Smith and Dr Sharma.
…
[164]After the meeting on 13 August 2013, the doctors described her self-esteem as having been significantly impacted, and her ruminating about the future and the risk to her reputation. Dr Sharma described her stress resulting from a sense of betrayal and injustice from her employers, as she had been quite proud of her work.
[165]Dr Edwards-Smith described her as wanting to clear her name, being preoccupied with thoughts surrounding her employer, her belief that her reputation had been damaged, and her sense of injustice. Dr Edwards-Smith described Ms Kieronski as having a very strong sense of justice.
[166]Dr Edwards-Smith was of the opinion that there were strong cultural influences on her presentation with strong feelings of shame, humiliation and distress regarding her statement that she believed her reputation had been damaged.
…
[169]She also had a particular sense of self and cultural background that caused her to react in the way she did on being told there were new allegations of misconduct against her.
[170]As set out above, in my view, the cause of Ms Kieronski's stress was not predominantly caused by discipline, dismissal or an expectation thereof, but rather the sense of injustice she felt that she had been accused of similar allegations again, and a desire to clear her name and restore her reputation.
From those passages it can be seen that the arbitrator accepted Ms Kieronski's own evidence and the supporting medical evidence to the effect that Ms Kieronski's stress did not arise predominantly from her anticipation of being disciplined, or being transferred or dismissed (or from her anticipation of any other matter in s 5(4)(a) or (b) of the WCIM Act). Rather, he found, based on the evidence before him that her stress arose from her concerns about having been treated unjustly, from her need to save face (which was a cultural concern) and to restore her good name.
Ms Kieronski refers to the case of Department of Education v Azmitia [2014] WADC 85 and says that that case is factually strikingly similar to Ms Kieronski's. In that case a teacher attended a meeting with the headmaster following a complaint by a parent. In that case the arbitrator found, among other things, that even if the respondent expected an excluded matter such as discipline or loss of a benefit to occur, such was not the whole or predominant cause of the injury and thus the excluded matters were not enlivened. Rather, the arbitrator accepted the evidence established that it was not discipline or the expectation of it but the way in which the relevant meeting had been conducted (it had been described by the arbitrator as 'an ambush') and her perception that her integrity and reputation had been attacked that was the predominant cause of her stress.
In that case McCann DCJ upheld the decision of the arbitrator finding that it was open on the evidence to conclude, as a matter of fact, that the predominant cause of the respondent's stress was other than excluded matter in s 5(4) and no error of law had been made by the arbitrator in coming to that conclusion.
I find Ms Kieronski's case to be analogous.
I find that the arbitrator correctly appreciated the test to be applied in determining whether Ms Kieronski's stress arose from her expectation of a matter in s 5(4) of the WCIM Act and made a finding of fact which was open to him on the evidence.
Given no error of law or of fact and law has been established I would refuse leave to appeal in relation to ground 1.

Ground 3 – was the discipline hard and unreasonable?

Given that I have found that no error of law was made in the arbitrator's conclusion that the process in which Woodside was engaged was not discipline, it is not necessary to deal with ground 3.

Notice of contention

Because of the finding I have made in relation to the grounds of appeal it is unnecessary to deal with the issues raised by Ms Kieronski's notice of contention.

Conclusion

For the reasons set out above I would refuse leave in relation to appeal and dismiss the appeal.

Orders

I will order that the appellant's application for leave to appeal be refused and the appeal be dismissed.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CH
Associate to Judge Glancy
8 MAY 2019