BHK v Secretary, Department of Education (NSWPICPD 2024)

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Key Takeaways

Protracted investigations will not necessarily be fatal to a s11A defence, particularly in circumstances where the severity of the allegations levelled against a worker requires extensive evidence gathering, and managing competing interests, such as confidentiality. As always, each s11A defence will turn on the individual facts of the case.

Brief Facts

The appellant was employed as a teacher and on 8 December 2021, was informed by letter of a complaint made against him asserting various inappropriate interactions with students. Despite being distressed, the appellant continued to work and an investigation ensued. During this time, further allegations by students were made against the appellant and on 4 April 2022, the appellant was issued with a letter which informed him that his permission to work in any NSW Department of Education school or facility was temporarily withdrawn and he was placed on the ‘not to be employed’ (NTBE) list. On 13 September 2022, the allegations against the appellant were particularised in a detailed letter.

On 13 April 2022, the appellant lodged a claim for a psychological injury arising from alleged unfair treatment by the respondent. The claim was disputed on the basis of s11A of the Workers Compensation Act 1987 (the 1987 Act), that is, the appellant’s injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the respondent with respect to discipline or dismissal.

The appellant argued that the length of time the investigation took was unreasonable and that he was provided with very limited information regarding the allegations. The respondent argued it had acted reasonably between 8 December 2021 to 4 April 2022, and the length of time was not unusual or unreasonable.

The Member did not accept that any of the actions before or after 4 April 2022 were relevant, as there was no evidence of injury at that time, nor incapacity following the first complaint of 8 December 2021. It was only after being informed of further allegations and being placed on the NTBE list on 4 April 2022 that the appellant was diagnosed with a psychological condition.

The Member determined the matter in favour of the respondent. The appellant appealed on the basis that the Member erred both in fact and in law in making this finding. The grounds relied upon were that the Member erred in finding the respondent’s disciplinary action on or up to 4 April 2022 were ‘reasonable’ and erred in failing to consider the causes of injury beyond the deemed date of injury of 4 April 2022 and that the latter constituted a misapplication of Heggie¹ or Sinclair².

Judgment

On appeal, Judge Philips found that the Member had not disregarded events that post-dated the injury, rather made a number of factual findings regarding those events and held that as a matter of law, all events said to have occurred after the deemed date of injury were to be disregarded. Judge Philips stated that these findings did not amount to a misapplication of either Heggie or Sinclair and dismissed that ground of appeal.

Judge Philips clarified that for the reasons set out in Heggie, the relevant time when reasonableness is considered is the time when the action is taken. In this case, that is on 4 April 2022 when the appellant was suspended and advised that he was to be placed temporarily on the NTBE list.

Judge Philips went on to deal with other grounds of appeal, which more or less dealt with variations of the above ground and ultimately found that the Member clearly considered events and facts and rejected their relevance, and by doing so, did not err in her decision.

Judge Philips did not find that any error on the part of the Member could be established and confirmed the Certificate of Determination.

Implications

Whilst a defence pursuant to s11A of the 1987 Act has generally been notoriously difficult to maintain, this matter provides an example of a set of circumstances in which the employer’s action was found to be reasonable with respect to discipline, by reference to the guiding principles found in Heggie and Sinclair.

¹ Northern NSW Local Health Network v Heggie (NSWCA 2013)
² Department of Education and Training v Sinclair (NSWCA 2005) (Sinclair)