Woodside Energy Ltd v Kieronski
[2016] WADC 144
•29 SEPTEMBER 2016
WOODSIDE ENERGY LTD -v- KIERONSKI [2016] WADC 144
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 144 | |
| Case No: | APP:90/2015 | 19 AUGUST 2016 | |
| Coram: | PARRY DCJ | 29/09/16 | |
| PERTH | |||
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted in relation to grounds 3, 4 and 5 Appeal allowed and decision quashed Matter remitted to Workers' Compensation Arbitration Service for determination in accordance with law by a different arbitrator | ||
| PDF Version |
| Parties: | WOODSIDE ENERGY LTD CATHERINE KIERONSKI |
Catchwords: | Workers' compensation Application for leave to appeal from decision of arbitrator Total incapacity Disease caused by stress wholly or predominantly arising from discipline of worker No compensable injury unless discipline of worker 'unreasonable and harsh' on part of employer Determination by arbitrator that discipline of worker unreasonable and harsh on part of employer Whether question of law involved Relevance Content of duty of procedural fairness Whether, if leave to appeal granted and appeal allowed, court should itself determine whether employer's conduct was unreasonable and harsh or should remit matter to Workers' Compensation Arbitration Service |
Legislation: | Workers' Compensation and Injury Management Act 1981 (WA) s 5(1), s 5(4), s 5(4)(a), s 18, s 247, s 247(1), s 247(2)(a)(i), s 247(5), s 247(7) |
Case References: | BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Department of Education v Azmitia [2014] WADC 85 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 Frost v Shire of Kalamunda [2007] WASC 322 Hope v Bathurst City Council (1980) 144 CLR 1 Housing Industry Association Ltd v Murten [2004] WASCA 139 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 R v Vaughan (No 2) [2009] SASC 395; (2009) 105 SASR 532 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CATHERINE KIERONSKI
Respondent
ON APPEAL FROM:
Jurisdiction : WORKCOVER WA
Coram : ARBITRATOR W POWLES
Citation : A12976
Catchwords:
Workers' compensation - Application for leave to appeal from decision of arbitrator - Total incapacity - Disease caused by stress wholly or predominantly arising from discipline of worker - No compensable injury unless discipline of worker 'unreasonable and harsh' on part of employer - Determination by arbitrator that discipline of worker unreasonable and harsh on part of employer - Whether question of law involved - Relevance - Content of duty of procedural fairness - Whether, if leave to appeal granted and appeal allowed, court should itself determine whether employer's conduct was unreasonable and harsh or should remit matter to Workers' Compensation Arbitration Service
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA) s 5(1), s 5(4), s 5(4)(a), s 18, s 247, s 247(1), s 247(2)(a)(i), s 247(5), s 247(7)
Result:
Leave to appeal granted in relation to grounds 3, 4 and 5
Appeal allowed and decision quashed
Matter remitted to Workers' Compensation Arbitration Service for determination in accordance with law by a different arbitrator
Representation:
Counsel:
Appellant : Ms G A Archer SC
Respondent : Mr J R Brooksby
Solicitors:
Appellant : Jackson McDonald
Respondent : Donna Percy & Co
Case(s) referred to in judgment(s):
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Department of Education v Azmitia [2014] WADC 85
Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
Frost v Shire of Kalamunda [2007] WASC 322
Hope v Bathurst City Council (1980) 144 CLR 1
Housing Industry Association Ltd v Murten [2004] WASCA 139
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
R v Vaughan (No 2) [2009] SASC 395; (2009) 105 SASR 532
- PARRY DCJ:
Introduction
1 Woodside Energy Limited (Woodside) seeks leave to appeal, pursuant to s 247(1) of the Workers' Compensation and Injury Management Act 1981 (WA) (WCIM Act), against the decision of the Workers' Compensation Arbitration Service made on 28 October 2015 in which Arbitrator Powles determined that Ms Catherine Kieronski is entitled to compensation from Woodside for total incapacity under the WCIM Act in respect of an injury suffered by her on 13 August 2013. The arbitrator ordered Woodside to pay Ms Kieronski weekly payments of compensation for total incapacity from 13 August 2013 to the date of the determination and ongoing (until such time as they may lawfully be ceased or reduced), and reasonable statutory expenses in respect of the injury.
2 On 13 August 2013, Ms Kieronski was stood down on full pay from her position as a marketing liaison officer with Woodside, pending the outcome of an investigation in relation to allegations of serious breaches of Woodside's code of conduct, including involvement in an inappropriate relationship with a Chinese customer and providing confidential information to parties external to Woodside.
3 It was common ground at the arbitration that, on 13 August 2013, at the time when she was stood down or shortly afterwards, Ms Kieronski sustained a psychiatric condition. Under s 18 of the WCIM Act, if an 'injury' of a worker occurs, then, subject to the Act, the employer is liable to pay compensation in accordance with Sch 1. Under the definition of the term 'injury' in s 5(1) of the WCIM Act, an injury includes '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' (par (c)). Under the definition of the term 'disease' in s 5(1) of the WCIM Act, a disease includes a 'mental ailment'. However, the definition of 'injury' in s 5(1) of the WCIM Act contains the following exclusion from that term:
[B]ut 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. (emphasis added)
4 One of the matters mentioned in s 5(4)(a) of the WCIM Act, for the purposes of this exclusion from the definition of 'injury' in s 5(1) of the WCIM Act, is 'the worker's … discipline'.
5 It was common ground at the arbitration that the psychiatric condition that Ms Kieronski sustained on 13 August 2013 was a disease caused by stress and that the stress wholly or predominantly arose from Ms Kieronski's discipline by Woodside on that day. The effect of this agreed position between the parties was that, unless Ms Kieronski's discipline by Woodside on 13 August 2013 is characterised as 'unreasonable and harsh on the part of the employer', she has not suffered a compensable injury for the purposes of the WCIM Act.
6 Ms Kieronski contended before the arbitrator that Woodside's conduct in her discipline on 13 August 2013 was 'unreasonable and harsh', whereas Woodside contended to the contrary. The arbitrator found that Woodside's conduct was unreasonable and harsh. Woodside seeks leave to appeal from that determination.
Factual background
7 Ms Kieronski grew up in China and migrated to Australia in the mid-1990s, when she was 25 years old. In about 2000, Ms Kieronski commenced employment with Woodside as a technical assistant. Soon afterwards, she was seconded to the north-west shelf liquefied natural gas (NWS LNG) project to work as a marketing liaison coordinator. Her role in the NWS LNG project predominantly involved liaison with Chinese clients.
8 In October 2011, Ms Kieronski became aware that a senior contract operations manager of the NWS LNG project alleged that she was leaking information to Chinese customers. As a result of the allegations and the subsequent conduct of that manager towards her, on 13 October 2011, Ms Kieronski suffered stress and depression.
9 In August 2012, Ms Kieronski made a claim for compensation under the WCIM Act for the psychiatric injury she sustained on 13 October 2011. Woodside accepted liability for that injury and paid compensation to Ms Kieronski. Ms Kieronski underwent medical treatment.
10 In December 2012, Ms Kieronski's secondment concluded and she was transferred to the liquefied natural gas (LNG) marketing department at Woodside's central office, where she worked under the direct supervision of Mr Mark Hanna, a senior general manger LNG marketing and operations. Mr Hanna gave evidence at the arbitration that it was unusual for him to directly supervise someone in Ms Kieronski's position. However, he explained that he was aware of the issues involved in relation to Ms Kieronski's compensation claim, which he said were sensitive, and he wanted those issues to remain private as between Ms Kieronski, the human resources department and himself. Mr Hanna gave evidence at the arbitration that 'I knew the issues involved and wanted to be personally involved to make sure that Catherine was okay' (ts 64.19).
11 Mr Hanna gave evidence at the arbitration that he observed Ms Kieronski engaged in what he regarded as suspicious behaviour. In particular, he said that he saw her taking notes at three or four meetings while lead negotiators were talking about extremely sensitive price information of LNG projects worth billions of dollars, whereas the information had no bearing on Ms Kieronski's role and no-one else was taking notes.
12 In June 2015, Mr Hanna reported Ms Kieronski's behaviour to the head of Woodside's security for possible breach of Woodside's code of conduct. On 27 June 2015, Woodside commissioned a formal investigation into Ms Kieronski's actions, including allegations that she had violated the company's code of conduct by releasing confidential information to, and holding inappropriate relationships with, parties external to Woodside.
13 On 12 June 2013, Ms Kieronski was examined by a psychiatrist, Dr Gemma Edwards-Smith, at Woodside's request. Dr Edwards-Smith diagnosed Ms Kieronski as suffering from a major depressive episode with melancholia and generalised anxiety disorder. Dr Edwards-Smith considered that Ms Kieronski had a partial capacity for work and recommended that her hours of work be reduced from full-time to part-time and that she be provided with a flexible working arrangement to accommodate her fluctuating symptoms.
14 Ms Kieronski began participating in a return to work programme. At the beginning of August 2013, she was working four days a week and receiving weekly payments of compensation for one day per week.
15 On 13 August 2013, Ms Kieronski was called to a meeting with Mr Hanna and Mr Chris Davies, Woodside's employee relations manager. At the meeting, Ms Kieronski was advised of the allegations against her and an investigation in relation to these allegations, and was stood down on full pay, pending the outcome of the investigation in relation to the allegations. In addition to the allegation concerning an inappropriate relationship with a Chinese customer, Ms Kieronski was advised of allegations concerning irregularities in relation to her sick leave and misuse of her corporate credit card. Her mobile telephone and security pass were taken from her, which, Mr Hanna said in evidence at the arbitration, was the standard practice at Woodside if somebody was being investigated and stood down.
16 Mr Bruce Towie, an investigator employed by Woodside, came into the meeting to explain the process for the internal investigation that would follow.
17 Ms Kieronski requested that she be allowed to go back to her desk to recover her personal belongings before she left the building. Consequently, Mr Davies and Mr Towie went with Ms Kieronski from the 22nd floor of the building, where the meeting took place, to the 24th floor of the building, where her desk was located. Mr Davies went with Ms Kieronski to her desk, while Mr Towie stayed in the lift lobby area.
18 Mr Towie gave evidence at the arbitration that, because Ms Kieronski was upset, Woodside arranged for a taxi to take her home. Because they were concerned about Ms Kieronski getting home safely, Mr Hanna and Mr Davies accompanied her in the taxi to her home.
19 On 14 August 2013, the day after the meeting at which she was stood down, Ms Kieronski saw Dr Edwards-Smith again. In a report written that day, Dr Edwards-Smith stated that Ms Kieronski:
said that she felt very shocked by [having her mobile telephone and security pass taken and having to leave her workplace] and immediately developed physical symptoms including palpitations, emotional distress and panic attacks.
20 Dr Edwards-Smith reported that Ms Kieronski 'had experienced suicidal thoughts and she said that she felt her life was in danger'. However, the report also states:
[S]he did not want to act on [these thoughts] as she wanted to see the investigations through as 'I don't want to die for no reason' in case she was found innocent of the charges.
21 Dr Edwards-Smith reported her findings on mental state examination and concluded the report as follows:
Ms Kieronski has developed an escalation of emotional symptoms in response to the disciplinary events of the preceding day in which she was stood down suddenly from employment. She has developed significant escalating emotional distress and anxiety associated with suicidal thoughts. … There is not an immediate risk as she is motivated to see the investigation through and to comply with treatment, and indicated that she wishes to do so.
22 On 9 September 2013, Mr Towie sent a letter to Ms Kieronski and a copy to her lawyer setting out the allegations against her and referring to arrangements for a meeting scheduled for 12 September 2013. That meeting took place on 12 September 2013. During the meeting, Mr Towie interviewed Ms Kieronski and asked her questions about the allegations. During breaks, Ms Kieronski was able to seek advice from her lawyer.
23 In October 2013, Mr Towie prepared an interim report on the investigation of the allegations against Ms Kieronski.
24 On 1 November 2013, Woodside wrote to Ms Kieronski's lawyer attaching a copy of a letter to be couriered to Ms Kieronski that day advising her of Mr Towie's interim findings and inviting her to 'show cause' by 13 November 2013 as to why her employment should not be terminated. The letter was subsequently sent to Ms Kieronski on 1 November 2013.
25 On 15 November 2013, Ms Kieronski emailed Woodside, making complaints and claiming that Woodside's treatment of her had caused her medical issues. She said that it would now be extremely difficult for her to return to work and therefore she will be seeking compensation.
26 On 19 November 2013, Woodside terminated Ms Kieronski's employment with effect from that day.
27 On 20 November 2013, Ms Kieronski made the claim for compensation which was the subject of the proceeding before the arbitrator.
Arbitrator's decision
28 After providing an introduction and referring to the factual background and the legislative framework for the purposes of the arbitration, the arbitrator summarised the parties' respective positions. The arbitrator stated as follows:
20. In essence, Ms Kieronski submits Woodside's conduct was unreasonable and harsh because she was required to attend a meeting at which she was ambushed, in that she was given no prior notice of the nature of the meeting or of the allegations that had been made against her, the evidence supporting the allegations was not adequately disclosed and she was given no opportunity to be heard, because she had no opportunity to prepare or give her answer to the allegations. She submits she was treated unfairly and humiliated in front of her co-workers.
…
23. Woodside denies its actions were unreasonable and harsh. Woodside contends that the entire disciplinary process has to be looked at from the time Ms Kieronski was told of the allegations against her and stood down, until she was dismissed from the employment.
29 The arbitrator then referred to the documentary evidence presented by the parties, the medical evidence, the evidence of Ms Kieronski, and the evidence of Woodside's witnesses, Mr Hanna and Mr Towie, before making findings of fact. The arbitrator noted that Woodside sought to rely on 'a supplementary book of documents filed by consent on 10 March 2015' which 'documents relate to events that occurred after 13 August 2013' ([27]). The arbitrator then said [27]:
I have considered them, but I am not referring to them in these reasons for decision, as I consider they are not relevant to the issues I am required to determine.
30 The arbitrator also expressed the same decision, namely that evidence of events after 13 August 2013 was irrelevant to the determination of whether the discipline on 13 August 2013 was unreasonable and harsh, in relation to Ms Kieronski's own evidence of events subsequent to 13 August 2013. The arbitrator decided that that evidence was irrelevant, saying [60]:
It is … appropriate to focus on the events of 13 August 2013 only, and it is unnecessary to consider Ms Kieronski's evidence about subsequent events and circumstances.
31 In her summary of Ms Kieronski's evidence, the arbitrator stated as follows [63]:
Ms Kieronski says [that at the meeting on 13 August 2013] she repeatedly asked for the source of the new allegations or for supporting evidence, but was informed it was confidential. She also asked for the allegations to be put in writing, but this was refused. She was told she would have time to answer all the allegations.
32 The arbitrator's 'findings of fact' were as follows [81]:
On the basis of the evidence of the witnesses and the documentary evidence adduced at arbitration I find as follows:
(a) Prior to the events on 13 August 2013 Ms Kieronski suffered a compensable psychiatric injury in the course of her employment with Woodside. Woodside knew she had been diagnosed with Major Depressive Disorder with melancholia and Generalised Anxiety Disorder, was undergoing treatment, and was on a return to work program working four days per week and receiving weekly payments of compensation for partial incapacity equivalent to one day per week.
(b) Ms Kieronski was called to the meeting on 13 August 2013 with no advance notice of what the meeting was about.
(c) Her manager Mr Mark Hanna and Employee Relations Manager, Mr Chris Davies were at the meeting with her. She was told by Mr Hanna that there had been an investigation into her conduct and preliminary findings had been made, as a result of which she was to be stood down immediately on full pay.
(d) There is some conflict in the evidence as to what Ms Kieronski was told by Mr Hanna about the allegations. Mr Hanna's evidence is that he told her that it was alleged that she had been in an inappropriate relationship, there were serious irregularities in relation to purchase orders and there were irregularities in relation to her taking sick leave. Ms Kieronski's evidence is that she was told that it was alleged she had been involved in an inappropriate relationship with a Chinese customer, that her annual leave and sick leave had not been recorded properly, that she had misused her Woodside credit card and that she had breached the Woodside code of conduct. Mr Towie's evidence included (at attachment ABT-3, pages 50 and 51 of the Respondent's Book of Documents) a letter to Ms Kieronski dated 9 September 2013 in which he stated (the underlining is mine):
As indicated on 13 August 2013, the following issues are subject of the investigation and will be discussed at interview:
1. An allegation that you are involved in an inappropriate relationship with Mr Jin Zhengyi of the Shenzen Energy company, that may present a conflict of interest with your employment with Woodside;
2. An allegation that you have provided confidential information to parties external to Woodside or NWS ALNG including Mr Jin Zhengyi and others;
3. Anomalies concerning the legitimacy and recording of annual and sick leave incurred and entered by you; and
4. Concerns surrounding the use of WEL resources including electronic and financial resources.
In addition to these allegations a further matter will be discussed at interview:
5. Irregularities surrounding the engagement of vendors during your secondment to NSW ALNG [sic].
There is a commonality in these various accounts which leads me to conclude that Ms Kieronski was told that the allegations were that she had been involved in an inappropriate relationship with a Chinese customer, that her sick leave had not been recorded properly and that she had misused her Woodside credit card. I am unable to find as a fact what else she may have been told about the allegations.
(e) Ms Kieronski requested the allegations in writing. Her request was refused. Nothing was provided in writing to Ms Kieronski until 12 September 2013. Neither a written summary of the allegations nor any documents relating to the allegations were given to her until 12 September 2013.
(f) Ms Kieronski wanted to respond to the verbal allegations at the meeting on 13 August 2013 and was told it was not appropriate and instead there would be a meeting in due course with the investigator.
(g) At the meeting Ms Kieronski became highly distressed, was crying and felt physical symptoms of a panic attack.
(h) Mr Hanna left the meeting room and Mr Towie joined the meeting. He asked Ms Kieronski about her preferred location for a future interview and she answered that the venue didn't matter, she had done nothing wrong and she wanted to be able to show that.
(i) There is a conflict in the evidence as to how Mr Towie was described to Ms Kieronski. She says she was told he was a Security Officer for Woodside who used to work for the Federal Police. Mr Towie's evidence was that he has never worked for the Federal Police and he did not say to her that he was a former Federal Police Officer. After considering the evidence of the witnesses, I find that Mr Towie was introduced as an Investigator and Ms Kieronski viewed him as having the status and demeanour of a police officer.
(j) Before going home, Ms Kieronski was accompanied by Mr Davies and Mr Towie to the floor of the building where her desk was to get her personal belongings. There is a conflict in the evidence regarding the circumstances when Ms Kieronski went to retrieve her belongings. Ms Kieronski gave evidence that both men escorted her to her desk and she felt embarrassed and humiliated in front of her colleagues. Mr Towie gave evidence that he remained by the lift while Ms Kieronski went to collect her belongings accompanied only by Mr Davies. I find that it is more likely than not that Mr Towie remained by the lift and only Mr Davies accompanied Ms Kieronski. She did not tell Dr Edwards-Smith the following day that she had been escorted by the two men to get her personal belongings. Nor, in her witness statement dated 6 May 2014 did Ms Kieronski say that she had been escorted by the two men to collect her personal belongings. She simply said that after having her security pass and mobile phone taken at the meeting, she was promptly escorted from the building. I find that it was only Mr Davies who went with Ms Kieronski to her desk to collect her belongings
(k) I also find that Ms Kieronski was embarrassed and humiliated in front of her co-workers by this event. It was clearly embarrassing and humiliating for Ms Kieronski to have to walk into a work area where her co-workers could see that she was in a distressed state, and that she was being accompanied by Woodside's Employee Relations Manager who watched while she collected her belongings and accompanied her from the area back to the lift where the Woodside investigator was waiting.
(l) Mr Davies and Mr Towie accompanied Ms Kieronski to her home in a taxi because she was so distressed.
33 The arbitrator considered and determined the question 'Was Woodside's conduct unreasonable and harsh?' at [91] – [111] of her reasons. The arbitrator commenced this discussion by noting that the words 'unreasonable' and 'harsh' in the exclusion from the term 'injury' in s 5(1) of the WCIM Act bear their ordinary meanings: Housing Industry Association Ltd v Murten [2004] WASCA 139 [25] (Le Miere J (with whom Steytler and E M Heenan JJ agreed)). As the arbitrator said, the dictionary definitions of those words, referred to and applied by the compensation magistrate in the decision which was the subject of the appeal in Murten,are as follows [91]:
Unreasonable: Not acting in accordance with, or guided by reason or good sense; not based on or in accordance with reason or sound judgement; not reasonable in conduct, demands, expectations, etc; going beyond what is reasonable or equitable; excessive in amount or degree; immoderate; exorbitant.
Harsh: Ungentle and unpleasant in action or effect; repugnant or roughly offensive to the feelings; severe; rigorous, cruel, rude, rough, unfeeling.
34 The arbitrator then said the following [94]:
Ms Kieronski carries the onus of establishing that Woodside's conduct was unreasonable and harsh. She submits that it was both unreasonable and harsh because she was not treated with fairness or accorded natural justice. In this context, it is submitted that fairness equates to natural justice: Kioa v West (1985) 159 CLR 550 and requires that there be prior notice; adequate disclosure of evidence; the opportunity to be heard and a proper hearing process. Additionally, she was humiliated and embarrassed in front of her co-workers. Furthermore, Ms Kieronski submits her pre-existing depression and anxiety was known to Woodside and their conduct towards her must be considered in this context.
35 The arbitrator noted [95] that Ms Kieronski relied on the decision of McCann DCJ in Department of Education v Azmitia [2014] WADC 85. Azmitia involved an application for leave to appeal from a decision in which an arbitrator found that a worker suffered a stress-related injury in the course of her employment as a teacher at a primary school following a meeting with the principal of the school concerning a complaint that had been made by a parent about the teacher. In the course of the judgment, McCann DCJ said the following:
30. The arbitrator concluded ([60] – [61], [67], [69]) that the meeting had been an 'ambush' and a 'surprise attack' (my emphasis) on the respondent because its purpose was not disclosed to her beforehand, she was given no prior notice of the allegations made by the parent and was not given an opportunity to prepare for, nor respond to, the allegations or the referral of the matter to the Standards and Integrity division.
31. He found that Mr Edwards 'pre-judged the situation, having formed an opinion that the parent's allegations about what was said had in fact occurred and were in themselves serious enough to warrant intervention'.
32. Based on the arbitrator's findings, it is quite clear that the meeting did amount to an ambush and that there was a lack of procedural fairness. The arbitrator later found ([150]) that in all the circumstances Mr Edwards' actions were harsh and unreasonable. It is difficult to argue with that contention.
36 In the present case, Arbitrator Powles determined as follows in relation to Azmitia [98]:
[T]he observation by McCann DCJ quoted above, in which he endorsed the arbitrator's characterisation of the meeting with the principal as an ambush, where there was a lack of procedural fairness, provides relevant guidance for current purposes.
37 The arbitrator found that [111]:
[T]he disciplining of Ms Kieronski on 13 August 2013 was conduct that was unreasonable and harsh on the part of Woodside.
38 The arbitrator came to this determination for essentially four reasons. The arbitrator's first reason was as follows:
101. … Woodside failed to prepare her for what was going to happen at the meeting, and did not even give an indication that there were serious matters to discuss with her.
102. The nature of the meeting and the allegations against her came as a complete surprise that shocked Ms Kieronski and caused her immediate distress. It was not in accordance with good sense or good judgment for Woodside to tell her the allegations without any advance notice that serious matters relating to her conduct were to be discussed at the meeting. I consider that given their knowledge about her existing psychiatric condition it was unfeeling and cruel to surprise her in this way.
39 The arbitrator's second reason for her determination was as follows [104]:
I find it was unreasonable and harsh to provide no written summary of the allegations at the 13 August meeting. I do not accept that there was a risk of disclosure of confidential matters contrary to Woodside's interests if Ms Kieronski had been given that letter at that meeting. Woodside were planning to immediately escort Ms Kieronski from the building at the conclusion of the meeting, so being provided with a letter listing the allegations was no more risk to Woodside's interests than telling her the allegations. I find that it was poor judgment by Woodside and offensive to the feelings of Ms Kieronski to merely tell her of the allegations. She was already known to have a psychiatric condition and no consideration appears to have been given to the impact on her of being unexpectedly given verbal notice of allegations against her. It was insensitive and unfeeling to expect her to absorb the information given verbally and go home with nothing in writing to verify that she was accurately recalling what she had been told. It was reasonably predictable that she might be shocked and distressed upon being told the allegations and the action that Woodside were taking in standing her down immediately and might therefore be unable to take in what she was being told. Woodside did not act in accordance with good sense or sound judgment and was unfeeling in not providing a written statement of the allegations.
40 The arbitrator's third reason for her determination was as follows [107]:
I accept that Woodside informed Ms Kieronski on 13 August that there would be an opportunity for her to answer the allegations, told her what that process would entail and in fact, did commence that process, and that therefore it did not deny Ms Kieronski the opportunity to be heard before making its final decision. However, Ms Kieronski was told at the meeting on 13 August 2013 that there had been a preliminary investigation into allegations against her and preliminary findings had been made, and that it was on this basis she was being stood down. Even though described as "preliminary", the terminology of "findings" could nevertheless give rise to the impression that Woodside had come to conclusions about the allegations without having given her any notice that there was to be an investigation, what the subject-matter of the investigation included and without an opportunity for her to give an explanation for her conduct or any response to the allegations. This was contrary to principles of procedural fairness as it conveyed an impression that Woodside had made findings against Ms Kieronski without hearing from her.
41 The arbitrator's fourth and final reason for her determination was as follows [109]:
I have found that Ms Kieronski was crying at the meeting on 13 August and so distressed that Mr Davies and Mr Towie considered it necessary to accompany her home in a taxi. She was in this distressed state when Mr Davies accompanied her to her desk to collect her personal belongings. I have found this caused her to be embarrassed and humiliated in front of her co-workers. I consider that having Mr Davies go with her to collect her belongings when she was overtly distressed and this was observed by her co-workers was unfeeling and not in accordance with sound judgment.
42 The arbitrator then summarised her reasons for her determination that Woodside's conduct involved in the discipline of Ms Kieronski on 13 August 2013 was 'unreasonable and harsh' as follows [110]:
In summary, I find that Woodside's conduct in calling Ms Kieronski to the meeting on 13 August 2013 without prior notice of what it was about; telling her that there were allegations against her in respect of which preliminary findings had been made; failing to give her written notice of the allegations until nearly a month after they had been given to her verbally; having her collect her personal belongings when she was observed by her co-workers to be in a distressed state and accompanied by Mr Davies; all in a context of Woodside's knowledge of her pre-existing psychiatric disease and consequent partial incapacity for work; was unreasonable and harsh.
Legal framework and principles
43 Part XI div 4 of the WCIM Act establishes the Workers' Compensation Arbitration Service and provides for disputes under the WCIM Act, which have not been resolved by conciliation, to be determined by arbitration.
44 Section 247 of the WCIM Act states, in part, as follows:
(1) If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213(3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2) Subject to subsection (3), the District Court is not to grant leave to appeal unless -
(a) in the case of an appeal in which an amount of compensation is at issue -
(i) a question of law is involved and the amount at issue in the appeal is both —
(I) at least $5 000 or such other amount as may be prescribed by the regulations; and
(II) at least 20% of the amount awarded in the decision appealed against;
(5) An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.
(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against cannot be given on an appeal to the District Court except with the leave of the District Court.
(7) On hearing an appeal made under this section, the District Court may -
(a) affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b) subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.
46 As Pullin JA (with whom Wheeler JA agreed) held in BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]:
To establish that there is a 'question of law' involved it is necessary to show that an error of law or an error of mixed law and fact has occurred. See Highmoon Pty Ltd v City of Fremantle [2006] WASCA 21 [34] and Woolworths (WA) Ltd v Liquorland (Australia) Pty Ltd (Unreported, WASCA, Library No 940553, 7 October 1994) (Anderson J).
47 As his Honour also held in Brady [15]:
Furthermore, a decision does not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different': Australian Broadcasting Tribunal v Bond [(1990) 170 CLR 321], 353.
48 Where leave to appeal is granted, s 247(5) of the WCIM Act provides that '[a]n appeal under this section is to be by way of review of the decision appealed against …'. In Pacific Industrial Co v Jakovljevic [2008] WASCA 60, Wheeler JA (with whom Pullin and Buss JJA agreed) held as follows in relation to the nature of a 'review' of a decision appealed against under s 247 of the WCIM Act:
20. As to the question of what a "review" entails, it is to be noted that the review is ordinarily conducted on the materials before the arbitrator: s 247(6). It is not a hearing de novo. So far as the content of a "review" is concerned, there is authority, both in New South Wales and in this court, in the context of workers' compensation legislation. In Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580, the Court of Appeal of New South Wales considered the nature of a "review" by a judge of a commissioner, pursuant to the Compensation Court Act 1984 (NSW). In reasons with which Waddell and Samuels AJJA agreed, Kirby P repeated the view that he expressed in an earlier decision, which was to the effect that a review was wider than an appeal in the strict sense, and wider than the usual kind of narrow appeal from discretionary decisions which required some error of principle to be shown before the decision could be overturned (586). His Honour also noted, however, that the fact that there is a decision which is being "reviewed" postulates that the judge (in that case) would start not with a blank page, but with a formal decision and that, unless the "review" persuaded the judge that the order being reviewed should be varied, discharged, or otherwise disturbed, it would stand. His Honour had said in his earlier decision, and repeated:
This suggests the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision under challenge. Invoking the review procedure does not sweep aside the effect of the decision. It remains valid unless the Judge, on review, otherwise orders.
21. The policy reasons which, in part, led Kirby P to the conclusions which he reached in Boston are considerations which are largely relevant here. His Honour pointed out that the decisions made affected substantial rights. His Honour referred also to the training, experience and office of the judge of the Compensation Court (587). Under the Act, too, substantial rights are affected, and the commissioner is a judge of the District Court (s 281).
22. In this court, in Sotico Pty Ltd v Wilson [2007] WASCA 112, Pullin JA, in considering the powers of a commissioner, made the following observation at [46]:
Once a question of law is identified, leave is granted and an error of law is held to have occurred (Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [14]), then the Commissioner is obliged 'within the constraints marked out by the nature of the appellate process … to conduct a real review …': Fox v Percy (2003) 214 CLR 118 at [25].
23. His Honour's reasons differed from those of the majority in some respects, but his analysis of the statutory framework was not inconsistent with the majority reasons.
24. In my view, the statutory framework, and the policy considerations to which Kirby P referred, support the conclusion that a review pursuant to s 247 is not limited merely to the correction of errors of law. It is broader than an appeal in the strict sense. As Pullin JA said in Sotico, once leave is granted the commissioner is obliged to conduct a "real review".
Grounds of appeal
49 The appeal notice dated 20 November 2015 sets out six grounds of appeal. At the hearing, ground 2 was not pressed. Furthermore, as Ms G A Archer SC, counsel for Woodside, acknowledged, there is 'considerable overlap if I can use that gentle expression in the way the grounds are drafted' (ts 19.2). Grounds 3 and 4 express essentially the same complaint in different ways. Furthermore, as Ms Archer observed:
[A]ll of those grounds can be captured by the complaint that the error was in considering the discipline did not have to be looked at in context, that it could be considered just on the stand-down day.
(ts 19.7)
50 The five remaining grounds of appeal are as follows:
1. The learned Arbitrator erred in law, alternatively in fact and law, by concluding that [Woodside's] actions on 13 August 2013, considered in isolation, were "discipline" within the meaning of section 5(4)(a) of the [WCIM Act].
3. The learned Arbitrator erred in law, alternatively in fact and law, by concluding that any events that occurred after 13 August 2013 were irrelevant to the application of section 5(4)(a) of the [WCIM Act].
4. The learned Arbitrator erred in law, alternatively in fact and law, by failing to consider the disciplinary process in relation to [Ms Kieronski] as a whole before determining that [Woodside's] actions on 13 August 2013 were harsh and unreasonable pursuant to section 5(4) of the [WCIM Act].
5. The learned Arbitrator erred in law, alternatively in fact and law, by concluding that [Woodside] denied [Ms Kieronski] natural justice on 13 August 2013, or at all.
6. The learned Arbitrator erred in law, alternatively in fact and law, by concluding that [Woodside's] conduct on 13 August 2013 was harsh and unreasonable within a meaning of section 5(4) of the [WCIM Act].
51 I note that grounds 4 and 6 erroneously contemplate that a determination as to whether conduct involved in a worker's discipline is unreasonable and harsh on the part of the employer is made pursuant to s 5(4) of the WCIM Act. In fact, as noted earlier, the expression 'unreasonable and harsh on the part of the employer' is found in the exclusion from the term 'injury' in its definition in s 5(1) of the WCIM Act. However, nothing turns on this error.
Is there a question of law involved?
52 Mr J R Brooksby, counsel for Ms Kieronski, submits that the arbitrator's determination that Woodside's conduct was 'unreasonable and harsh' was a finding of fact which was reasonably open on the evidence before her and therefore 'no appeal can lie from it' (ts 65.1). As Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed) observed in Hope v Bathurst City Council (1980) 144 CLR 1, 7, where a statute uses words according to their common understanding (such as the words 'unreasonable' and 'harsh' in the exclusion from the definition of 'injury' in s 5(1) of the WCIM Act), and it is not unreasonable to conclude that the facts as found fall within those words, the conclusion that the facts do fall within the ordinary meaning of those words involves a question of fact, not a question of law or a mixed question of law and fact. More particularly, as Le Miere J (with whom Steytler and E M Heenan JJ agreed) held in Murten [33]:
In this case the question whether the discipline of the respondent was unreasonable and harsh on the part of the employer was a question of fact and degree.
53 However, although the arbitrator's determination that 'the disciplining of Ms Kieronski on 13 August 2013 was conduct that was unreasonable and harsh on the part of Woodside' was finding of fact, the arbitrator's first three of her four reasons for coming to that determination ([101] – [102], [104] and [107]) involved questions of law in respect of which she erred. As discussed below, the questions of law involved in relation to the arbitrator's first three reasons for her determination are the relevance of evidence (of events occurring in the investigative and disciplinary process after 13 August 2013) (grounds 3 and 4) and the content of the duty of procedural fairness (ground 5). Furthermore, the errors of law discussed below in relation to the arbitrator's first three reasons for her determination were clearly material to her decision in the sense that, but for the errors, the decision might have been different.
Relevance of evidence – Grounds 3 and 4
54 As noted earlier, the arbitrator decided that documents sought to be relied upon by Woodside which related to events that occurred after 13 August 2013 and Ms Kieronski's own evidence about subsequent events and circumstances were irrelevant to the issue of whether Woodside's conduct on 13 August 2013 was unreasonable and harsh ([27], [60]).
55 The determination of whether evidence is relevant, that is, whether it is logically probative of a fact in issue, involves a question of law: Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 [31] (Gummow and Hayne JJ). In R v Vaughan (No 2) [2009] SASC 395; (2009) 105 SASR 532 Kourakis J held that [98]:
[Q]uestions of fact are determined by evidence but the admissibility of evidence of those facts is not a question of fact.
56 As his Honour explained [99]:
Evidence is relevant if it tends to render the existence of a fact in issue probable or improbable. Although the question of relevance must therefore be decided in a factual context, it does not involve the weighing or balancing of any fact. A determination of the relevance of evidence involves only a legal assessment of its capacity to prove that fact.
(citation omitted)
57 The arbitrator determined that evidence relating to Woodside's subsequent conduct in the investigative and disciplinary process concerning Ms Kieronski was irrelevant to the determination of whether Woodside's conduct on 13 August 2013 was unreasonable and harsh. That determination involved a question of law, namely the relevance of evidence, and the learned arbitrator erred in law in determining that evidence relating to Woodside's subsequent conduct in the investigative and disciplinary process in relation to the allegations against Ms Kieronski was irrelevant to the determination in this case.
58 Significantly, none of the attendees at the meeting on 13 August 2013, including Ms Kieronski, believed or were under the impression while they were at the meeting that the meeting constituted the totality of the investigative and disciplinary process. Rather, they each understood that it was merely the first step in a process and the subsequent steps in the process were foreshadowed at the meeting. Significantly, also, the participants' mutual understanding was correct; the consequent steps of investigation and determination of the allegations against Ms Kieronski that were foreshadowed at the meeting on 13 August 2013 in fact took place over the following three months.
59 As the arbitrator found, at the meeting on 13 August 2013:
• Ms Kieronski 'was told that the allegations [note: not 'findings' or 'determinations'] were that she had been involved in an inappropriate relationship with a Chinese customer, that her sick leave had not been recorded properly and that she had misused her Woodside credit card' ([81(d)]);
• Ms Kieronski 'was told it was not appropriate [to respond to the verbal allegations at the meeting] and instead there would be a meeting in due course with the investigator' ([81(f)]); and
• Mr Towie, after he joined the meeting, 'was introduced as an Investigator' ([81(i)]) and he 'asked Ms Kieronski about her preferred location for a future interview and she answered that the venue didn't matter, she had done nothing wrong and she wanted to be able to show that' ([81(h)]).
60 As the arbitrator also found, Ms Kieronski was sent a letter dated 9 September 2013 setting out, in writing, the allegations that she had been advised of at the meeting on 13 August 2013 together with a further allegation that 'will be discussed at interview' which, as noted earlier, was scheduled to take place, and did take place, on 12 September 2013.
61 Furthermore, it is apparent from Ms Kieronski's evidence at the arbitration and from what she told Dr Edwards-Smith on 14 August 2013 that Ms Kieronski understood at the time of the meeting that it was part of a process in which she would have the opportunity, following the meeting, to respond to the allegations. Ms Kieronski gave evidence that she was told at the meeting 'you will have time to explain all of this' (ts 21.38). As the arbitrator noted [39], Dr Edward-Smith reported that Ms Kieronski told her on 14 August 2013 that she wanted to 'see the investigations through'. Similarly, as the arbitrator noted [41] in her report dated 4 October 2013, Dr Edwards-Smith said that Ms Kieronski told her that she 'wanted to give her side of the story to the investigator' at the investigation interview.
62 Mr Hanna and Mr Towie gave evidence at the arbitration to similar effect to Ms Kieronski in relation to their understanding of the meeting forming merely part of a process. Mr Hanna gave evidence that at the meeting he:
continued to insist that these were simply allegations and that there would be a process followed by the company where she would have the opportunity to discuss those allegations with [indistinct] but the purpose of that meeting was not to go through the allegations.
(ts 74.20 – 74.24)
63 Mr Towie gave the following evidence at the arbitration:
[T]he primary purpose for me [attending the meeting on 13 August 2013] was to introduce myself to Ms Kieronski to – and advise her of the process going forward on the – the investigative process. Letting her know that she'd been made aware of the allegations but letting her know that I will be the person that would be proceeding with the investigation and approaching her in the weeks to come or days to come to identify certain time for the interview process to take place, or for that investigative process to take place.
(ts 81.30 – 81.36)
64 Given that each of the participants at the meeting on 13 August 2013, including Ms Kieronski, understood that the meeting was merely a step in the investigative and disciplinary process, the subsequent steps in the process were foreshadowed at the meeting, and the process was in fact followed by Woodside, evidence of events occurring in the investigative and disciplinary process in relation to the allegations against Ms Kieronski after 13 August 2013 is relevant to a determination of whether Woodside's conduct in the discipline of Ms Kieronski on 13 August 2013 was unreasonable and harsh. In my view, the arbitrator erred in law in determining otherwise.
65 Furthermore, this error was material in relation to the arbitrator's first three reasons for her determination that Woodside's conduct was unreasonable and harsh, and hence material to that ultimate determination, in the sense that, but for the error, the determination may have been different. Had the arbitrator considered as relevant events in the investigative and disciplinary process after 13 August 2013 and had she considered, as she should have, Woodside's conduct on 13 August 2013 in the context of the investigative and disciplinary process as a whole, she may well have determined that Woodside's conduct in the discipline of Ms Kieronski on 13 August 2013 was not unreasonable and harsh.
Content of the duty of procedural fairness – Ground 5
66 The second question of law involved in the arbitrator's decision is 'the content of the duty of procedural fairness' (Frost v Shire of Kalamunda [2007] WASC 322 [47] (Murray J)). As is apparent from [94] of the arbitrator's reasons, Ms Kieronski put her case that Woodside's conduct was unreasonable and harsh on two bases. The primary basis was 'because she was not treated with fairness or accorded natural justice'. The second basis was that 'she was humiliated and embarrassed in front of her co-workers'. Furthermore, Ms Kieronski submitted that Woodside's conduct towards her 'must be considered in [the] context' of her pre-existing depression and anxiety which was known to Woodside.
67 In relation to the primary basis on which Ms Kieronski put her case, the arbitrator observed [94]:
In this context, it is submitted that fairness equates to natural justice: Kioa v West (1985) 159 CLR 550 and requires that there be prior notice; adequate disclosure of evidence; the opportunity to be heard and a proper hearing process.
68 However, as Woodside submits, although this is a correct statement of the law:
What is incorrect, and with respect, an error of law, is to suppose that they all must occur in the first meeting.
69 As Ms Archer expressed the point in oral submissions:
[T]he arbitrator, with respect - has compressed an entire process which requires procedural fairness, which requires steps to happen in an orderly fashion, beginning with notice, no prejudgment, opportunity to be heard and decision.
That's the process, the arbitrator has compressed that entire process into a single day and said, "If this stuff all didn't happen on this one day - you lose".
(ts 33.4 – 33.5)
70 In my view, the arbitrator erred in law in relation to the content of the duty of procedural fairness in respect of each of her first three reasons for her determination that Woodside's conduct was unreasonable and harsh.
71 I note in relation to the arbitrator's first reason for her determination ([101] – [102]) that she did not expressly state that Woodside was in breach of the duty of procedural fairness or denied Ms Kieronski natural justice by calling her to the meeting without giving her prior notice of what it was about or that serious matters relating to her conduct were going to be discussed at the meeting. However, when read in the context of the primary basis on which Ms Kieronski put her case as summarised by the arbitrator [94] ('fairness equates to natural justice … and requires that there be prior notice') and in the context of the arbitrator's reference to and reliance upon Azmitia [98] ('McCann DCJ … endorsed the arbitrator's characterisation of the meeting with the principal as an ambush, where there was a lack of procedural fairness, provides relevant guidance for current purposes'), it is clear that the arbitrator, in effect, determined [101] – [102] that Woodside's conduct in the discipline of Ms Kieronski on 13 August 2013 was in breach of the duty of procedural fairness and involved a denial of natural justice by failing to give Ms Kieronski prior notice of what the meeting was about or that serious matters relating to her conduct were going to be discussed at the meeting.
72 In my view, the arbitrator erred in law in this respect in relation to the content of the duty of procedural fairness, because as Woodside submits, 'the meeting of 13 August 2013 was the prior notice of the allegations; it was the start of the process'. When viewed, as is appropriate and necessary, in the context of the entire investigative and disciplinary process that was foreshadowed to Ms Kieronski at the meeting on 13 August 2013 and that was in fact undertaken by Woodside, there was no breach of the duty of procedural fairness or denial of natural justice in calling Ms Kieronski to the meeting without giving her prior notice of what it was about or that serious matters relating to her conduct were going to be discussed at the meeting.
73 Moreover, contrary to Ms Kieronski's submission (arbitrator's reasons [20]), which the arbitrator seems to have accepted [98], the meeting on 13 August 2013 cannot be characterised as an 'ambush', when viewed, as is appropriate and necessary, in the context of the investigative and disciplinary process that was foreshadowed to Ms Kieronski at the meeting and which in fact subsequently took place. In this regard, Azmitia, which the arbitrator considered 'provides relevant guidance for current purposes' ([98]), because it concerned a case of 'an ambush, where there was a lack of procedural fairness', involved quite a different situation from the present case. In Azmitia, the meeting at which the worker was 'ambushed' was, in essence, the process, rather than the first step in the process. The fact that the arbitrator considered Azmitia provides 'relevant guidance for current purposes' highlights the error of law in relation to the content of the duty of procedural fairness.
74 I note in relation to the arbitrator's second reason for her determination ([104]) that she did not expressly state that Woodside was in breach of the duty of procedural fairness or denied Ms Kieronski natural justice by not providing her with a written notice or summary of the allegations at the meeting on 13 August 2013. However, again, as in relation to the arbitrator's first reason, when her second reason is read in the context of the primary basis on which Ms Kieronski put her case as summarised by the arbitrator [94] ('fairness equates to natural justice … and requires that there be … adequate disclosure of evidence'), it is clear that the arbitrator, in effect, determined [104] that Woodside's conduct in the discipline of Ms Kieronski on 13 August 2013 was in breach of the duty of procedural fairness and involved a denial of natural justice by failing to give her a written notice or summary of the allegations at the meeting.
75 In my view, the arbitrator erred in law in this respect also in relation to the content of the duty of procedural fairness. The arbitrator found ([81(d)]) that Ms Kieronski was informed at the meeting on 13 August 2013 of the allegations that she had been involved in an inappropriate relationship with a Chinese customer, that her sick leave had not been recorded properly and that she had misused her Woodside credit card. The arbitrator also found ([81(d)]) that this oral disclosure of allegations was followed up by a written statement of the allegations together with an additional allegation by the letter dated 9 September 2013 (prior to the investigation meeting on 12 September 2013). Once again, all of the participants at the meeting on 13 August 2013 understood that that meeting was merely a step in the investigation and disciplinary process. The process, foreshadowed at the meeting, was followed by Woodside. The process included the provision of allegations in writing to Ms Kieronski to which she could respond within the process.
76 When viewed, as is appropriate and necessary, in the context of the entire investigative and disciplinary process that was foreshadowed to Ms Kieronski at the meeting on 13 August 2013 and that was in fact undertaken by Woodside, there was no breach of the duty of procedural fairness or denial of natural justice by not providing Ms Kieronski with a written notice or summary of the allegations at the meeting on 13 August 2013.
77 The arbitrator's third reason for her determination ([107]), which was in essence that Woodside breached the duty of procedural fairness and denied Ms Kieronski natural justice by not giving her an opportunity to be heard before 'preliminary findings' were made, also involves an error of law in relation to the content of the duty of procedural fairness. As the arbitrator herself recognised [107]:
I accept that Woodside informed Ms Kieronski on 13 August [2013] that there would be an opportunity for her to answer the allegations, told her what that process would entail and in fact, did commence that process, and that therefore it did not deny Ms Kieronski the opportunity to be heard before making its final decision.
78 Notwithstanding this finding, the arbitrator found that because Ms Kieronski was told that she was being stood down, on full pay, pending the outcome of the investigation, because there had been 'preliminary findings':
Even though described as "preliminary", the terminology of "findings" could nevertheless give rise to the impression that Woodside had come to conclusions about the allegations without having given her any notice that there was to be an investigation, what the subject-matter of the investigation included and without an opportunity for her to give an explanation for her conduct or any response to the allegations. This was contrary to principles of procedural fairness as it conveyed an impression that Woodside had made findings against Ms Kieronski without hearing from her.
79 Having found that Woodside 'did not deny Ms Kieronski the opportunity to be heard before making its final decision', it was both illogical and erroneous to determine that the expression 'preliminary findings' was 'contrary to principles of procedural fairness as it conveyed an impression that Woodside had made findings against Ms Kieronski without hearing from her'. As at the date of the meeting on 13 August 2013, Woodside had not in fact made any 'findings' against Ms Kieronski in relation to the allegations and Ms Kieronski was not under the impression that findings against her in relation to the allegations had in fact been made. It is clear from her own evidence and from what she told Dr Edwards-Smith that Ms Kieronski understood that the allegations were allegations, and not findings.
80 Furthermore, the expression 'preliminary findings' did not reflect or convey a prejudgment of the allegations against Ms Kieronski. As the arbitrator found ([81(c)]), Mr Hanna told Ms Kieronski at the meeting 'that there had been an investigation into her conduct and preliminary findings had been made, as a result of which she was stood down immediately on full pay'. The 'preliminary findings' were clearly directed to whether Ms Kieronski should be stood down pending the outcome of the investigation and disciplinary process. The expression did not reflect or convey the outcome of that process.
81 There was no breach of the duty of procedural fairness or denial of natural justice in using the expression 'preliminary findings' in the context in which it was used.
Should leave to appeal be granted?
82 Although the arbitrator's determination 'that the disciplining of Ms Kieronski on 13 August 2013 was conduct that was unreasonable and harsh on the part of Woodside' was a finding of fact, three of the four reasons that led the arbitrator to that determination involved questions of law in respect of which the arbitrator erred. The arbitrator erred in law in relation to the relevance of evidence (grounds 3 and 4) and in relation to the content of the duty of procedural fairness (ground 5). Furthermore, the errors of law were material to three of the arbitrator's four reasons for her determination, and hence material to that determination, in the sense that, but for the errors, the determination might have been different.
83 It follows that leave to appeal should be granted in relation to grounds 3, 4 and 5.
84 On one view, ground 1 merely expresses the same essential complaint as grounds 3 and 4. The words 'considered in isolation' in ground 1 support this view. However, the subsequent words 'were "discipline" within the meaning of section 5(4)(a) of the [WCIM Act]' may be said to raise a separate issue as to whether Ms Kieronski's 'discipline', for the purposes of s 5(4)(a) of the WCIM Act and hence for the purpose of the exclusion from 'injury' under s 5(1) of the WCIM Act, occurred on 13 August 2013 or over a period of time commencing on that day. Given that, as noted in the introduction above, it was common ground at the arbitration that the stress that caused Ms Kieronski's disease which she sustained on 13 August 2013 wholly or predominantly arose from her discipline by Woodside on that day, and given my decision to grant leave to appeal in relation to grounds 3 and 4 in any case, I do not grant leave to appeal in relation to ground 1.
85 Ground 6, as expressed, seeks to challenge a finding of fact and does not involve a question of law. I therefore do not grant leave to appeal in relation to ground 6.
Disposition of appeal
86 Contrary to the arbitrator's decision, events occurring in the investigative and disciplinary process in relation to the allegations against Ms Kieronski after 13 August 2013 are certainly relevant to the determination of whether Woodside's conduct in Ms Kieronski's discipline on 13 August 2013 was unreasonable and harsh. Each of the participants at the meeting on 13 August 2013 understood that the meeting was merely a step in the investigative and disciplinary process, the subsequent steps in that process were foreshadowed at the meeting, and the process was in fact followed by Woodside. It is therefore appropriate and necessary for the determination as to whether Woodside's conduct in Ms Kieronski's discipline on 13 August 2013 was unreasonable and harsh to be made having regard to the entire investigative and disciplinary process from the time Ms Kieronski was told of the allegations against her and stood down until she was dismissed from her employment. The arbitrator failed to do so.
87 Furthermore, contrary to the primary basis on which Ms Kieronski put her case and contrary to the arbitrator's decision, Woodside's conduct on 13 August 2013 did not involve a breach of the duty of procedural fairness and did not involve a denial of natural justice to Ms Kieronski.
88 The arbitrator erred in law in relation of three of her four reasons for her determination that Woodside's conduct in the discipline of Ms Kieronski on 13 August 2013 was unreasonable and harsh. In my view, given that the errors materially affect three of the four reasons for the determination, they vitiate the determination. Unless Woodside's conduct on 13 August 2013 is characterised as 'unreasonable and harsh', Ms Kieronski did not suffer a compensable injury on that day. The appeal should therefore be allowed and the decision of the arbitrator should be quashed.
89 In its notice of appeal dated 20 November 2015, Woodside seeks the following order consequent upon the appeal being allowed and the decision of the arbitrator being quashed:
The matter be remitted to a different Arbitrator for consideration.
90 However, at the conclusion of her oral submissions, in answer to question that I asked, Ms Archer suggested that once the court has reached a view about the merits of the appeal, it is 'a very short step' to then conclude that Woodside's conduct was not unreasonable and harsh in the circumstances of the case. Ms Archer submitted 'that is what your Honour should do' (ts 42.9).
91 Although Mr Brooksby did not oppose the court itself determining whether Woodside's conduct was unreasonable and harsh, in my view, on balance, the course proposed in the notice of appeal should be followed.
92 I consider that the matter should be remitted to the Workers' Compensation Arbitration Service for determination in accordance with law by a different arbitrator, because the Arbitration Service is the specialist workers' compensation jurisdiction in this State and the determination of whether Woodside's conduct on 13 August 2013, viewed as is appropriate and necessary in the context of the entire investigative and disciplinary process that Woodside foreshadowed to Ms Kieronski at the meeting and which subsequently took place, was unreasonable and harsh, involves a question of fact and degree. Although the court is required to conduct a 'real review' (Jakovljevic [24]) and is expressly authorised by s 247(7)(a) of the WCIM Act to 'substitute, and make in addition, any decision that should have been made in the first instance', in my view, the contemplation of the WCIM Act is that factual determinations in relation to claims for workers' compensation, such as whether an employer's conduct in a worker's discipline is unreasonable and harsh, should generally be made within the specialist jurisdiction, rather than by the appeal court.
Counterclaim
93 By a notice of counterclaim, Ms Kieronski contends that Woodside's conduct 'over [the] entire period' from the conclusion of Ms Kieronski's secondment 'was unreasonable and harsh'. As I have said, the contemplation of the WCIM Act is that factual determinations in relation to claims for workers' compensation, such as whether an employer's conduct in a worker's discipline is unreasonable and harsh, should generally be made within the specialist jurisdiction, rather than by the appeal court. If this new contention is maintained, it will be up to the new arbitrator to determine whether leave should be granted to Ms Kieronski to present a different or alternative argument in support of her claim for compensation.
Conclusion
94 Leave to appeal should be granted in relation to grounds 3, 4 and 5. The appeal should be allowed, the decision of the arbitrator made on 28 October 2015 should be quashed and the orders made on that day should be set aside. The matter should be remitted to the Workers' Compensation Arbitration Service for determination in accordance with law by a different arbitrator.
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