The Hills Shire Council v Podesta (NSWPICPD 2023)

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Key Takeaways

The PIC has reiterated the importance of considering the question of ‘fairness’ when determining whether the actions of an employer are reasonable for the purposes of s11A of the Workers Compensation Act 1987 (the 1987 Act).

In this case, Acting Deputy President Parker upheld the Member’s decision that the actions of the employer were not reasonable. The Acting Deputy President agreed with the Member that the worker was not afforded fairness during the course of disciplinary action.

Brief Facts

The worker suffered a psychological injury in the course of his employment as a workshop team leader.

In November 2020, a colleague received an anonymous note on his desk saying ‘we sacked the last guy, look out or you will be next’. A meeting of all workshop employees, including the worker, was called, during which the manager allegedly raised his voice and suggested that their employment could be at risk.

Following the meeting, an external investigation was arranged. The worker was advised that the decision to conduct a workplace investigation related to ‘various alleged inappropriate practices’. During his interview, the worker was questioned about various matters unrelated to the anonymous note.

At first instance, the Member determined that the employer had not discharged its onus of proof in establishing that the worker’s injury was wholly or predominantly caused by reasonable action taken, or proposed to be taken with respect to discipline. The employer appealed, arguing that the Member had erred in finding that the action taken was ‘not reasonable’.

Judgment

ADP Parker was satisfied that the Member had considered all available evidence when determining the issue of reasonableness under s11A. Although there was nothing unreasonable about holding the meeting, he agreed with the Member that the manner in which it had been conducted was not reasonable.

Similarly, ADP Parker agreed that arranging an investigation was reasonable, however the way it was carried out was not. Although the Acting Deputy President accepted the employer’s submission that the Member incorrectly quoted the passage of Geraghty CCJ in Irwin v Director-General of School Education (unrep, Compensation Court, 18 June 1998), he was not persuaded that she had erred in applying the test of reasonableness.

He noted that the principles in Irwin required the worker to be treated fairly and agreed with the Member’s view that the employer failed in this regard. Applying the decision of BlueScope Steel Ltd v Markovski (NSWWCCPD 2013), ADP Parker was of the view that the worker was not afforded ‘basic fairness’ as he was not given an agenda for the external investigation interview, despite being given advance notice and an opportunity to bring a support person. He accepted the Member’s conclusion that the phrase ‘various alleged inappropriate practices’ did not give the worker any information about what would be raised in the interview.

ADP Parker dismissed all grounds of appeal raised by the appellant employer and the previous Certificate of Determination was confirmed.

Implications

The test of reasonableness is an objective one, and requires an assessment of whether the actions of the employer were fair in all of the circumstances.

In this case, and although the actions of the employer in arranging a meeting and an external investigation were reasonable, the way those actions were carried out was not.

When raising a defence under s11A, employers must consider not just the reasonableness of their actions at a macro level (calling a meeting, issuing a warning etc) but also the way those actions are conducted at a more micro level including:

• the volume, tone of voice and body language adopted during meetings;
• the choice of words in meetings and written correspondence such as letters or e-mails;
• the time at which e-mails are sent, meetings scheduled and timeframes given to a worker for a response or other action;
• the location at which conversations and meetings take place.