What Makes Those Actions Reasonable?
Whittle v State of New South Wales (Hunter New England Local Health District) [2021] NSWPIC 319
The Applicant was a Registered Nurse based at Armidale Hospital in NSW, who in November 2018 received a caution from the Australian Health Practitioner Regulation Agency (AHPRA) which imposed conditions on his registration.
Conditions placed upon the Applicant included that he had to be supervised by another registered health practitioner when practicing as a Registered Nurse. Due to Armidale Hospital being unable to facilitate the necessary supervision, the Applicant was transferred to Manning Base Hospital at Taree in 2019.
On 29 June 2020 the Applicant was informed by the Respondent that allegations of sexual harassment, bullying and intimidation of female staff and patients had been received against him. The Applicant was stood down on full pay pending an investigation and was requested to attend a meeting on 15 July 2020 with representatives of the Respondent. He received a letter from the Respondent on 2 July 2020 advising him of the allegations of misconduct. The Applicant attended his GP on 7 July 2020 and was diagnosed with Depression and referred to a Psychologist.
On 15 July 2020 the Applicant’s GP certified him as unfit for work and he has not returned to work since this time.
The Respondent disputed the Applicant’s entitlement to compensation on the basis that his psychological injury was wholly or predominantly caused by reasonable actions taken by the Respondent in respect of either transfer, discipline or dismissal pursuant to Section 11A of the Workers Compensation Act 1987.
The Applicant commenced proceedings seeking weekly benefits and medical expenses from 7 July 2020 on a continuing basis. The matter was listed for a Conciliation/Arbitration before Member Sweeney.
Determination / Reasons
Member Sweeney confirmed that there was no issue that the Applicant’s psychological condition arose out of or in the course of his employment with the Respondent. The issue which required determination was whether the Applicant’s psychological injury resulted wholly or predominantly caused by reasonable actions taken by the Respondent with respect to discipline.
Relying upon the decision in Hamad v Q Catering Ltd [2017] NSWWCCPD 6, Member Sweeney noted that clear medical evidence was important when determining whether an employer’s actions are the whole or predominant cause of a psychiatric injury. Member Sweeney noted that the history of injury taken by the Applicant’s IME, Dr Takyar was very different to that taken by the Respondent’s IME, Dr Anand.
He noted that Dr Takyar failed to record a history of the allegations of misconduct and as such his report was of limited assistance in determining the cause of the Applicant’s psychological injury.
Member Sweeney relied primarily on the opinion of Dr Anand and considered that it was probable that the disciplinary action in June and July 2020 was the predominant cause of the Applicant’s psychological injury. He noted that the Applicant likely experienced psychological problems prior to the disciplinary proceedings but given that he did not consult a medical practitioner until after the commencement of the disciplinary proceedings, his opinion as to the predominant cause was not altered.
In respect of reasonableness, Member Sweeney noted that the Respondent only had to establish that their actions in respect of discipline up until 2 July 2020 were reasonable in order to succeed in a defence under Section 11A of the 1987 Act. Member Sweeney considered that the actions in respect of discipline was the investigation into the allegations of misconduct. In respect of the investigation, Member Sweeney noted that the purpose of the investigation was to establish the credibility of the complaint and to establish whether they could be proven or substantiated.
The Applicant submitted that the Respondent’s actions were unreasonable as it had not followed its policies when suspending him from duty. It was submitted that in order for the Commission to determine reasonableness of the suspension and investigation there had to be primary material evidencing the complaints prior to the suspension and investigation. However, Member Sweeney considered that the Respondent sought to comply with its policies and to act fairly in the fact-finding investigation. He considered that the Applicant’s suspension from duty on full pay was reasonable whilst investigations were undertaken into the allegations. The decision in State of New South Wales v Stokes [2014] NSWWCCPD 78 confirmed that, whilst in some cases it was necessary for evidence to be called to prove that a protocol or other action is reasonable, there will be other instances where is can be inferred from the circumstances of the case that an action is reasonable.
Overall, Member Sweeney concluded that the Applicant’s psychological injury was predominantly caused by the reasonable actions taken by the Respondent with respect to discipline, namely the fact finding investigation. An Award was made in favour of the Respondent.
Implications
This case serves to highlight that the evidence required to establish reasonableness for the purposes of a Section 11A defence, depends upon the circumstances of the individual case. In some matters, the provision of relevant primary material prior to taking disciplinary action is not a prerequisite to the proof of reasonableness, but rather reasonableness can be inferred from the circumstances.
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