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Section 11A (1) defence: what evidence is required to establish ‘reasonable action’

  • Newsletter Article
  • Published 14.10.2021
Whittle v State of New South Wales (Hunter New England Local Health District) (NSWPIC 2021)

Key Takeaways

The evidence required to establish reasonableness depends on the circumstances of the case. In this case, providing a worker with all relevant material before a factual investigation into that worker’s conduct was not a prerequisite to the proof of reasonableness.

Brief Facts

The worker, a nurse, had been suspended from work following complaints of misconduct by other staff.

On 29 June 2020, the worker was advised verbally over the telephone that he was to be stood down pending the outcome of an investigation. On 2 July 2020, the worker received a letter and email from the employer advising him of the allegations of misconduct.

The worker subsequently suffered a psychological injury and made a claim for workers compensation. The employer disputed liability under s11A (1)1  on the basis that the injury resulted wholly or predominantly from reasonable action taken by it.

Member Sweeny of the Personal Injury Commission (PIC) concluded that the worker’s psychological injury was predominantly caused by reasonable action taken by the employer with respect to discipline and he entered an award for the employer.


One of the issues to be determined was whether the employer’s actions with respect to discipline were ‘reasonable’ and whether the employer had to disclose to the worker the evidence which it relied on.

The worker argued that the only information he was provided with in respect of the allegations made against him was that contained in the letter of 2 July 2020. He stated that his solicitor sought information from the employer in respect of the ‘preliminary review’ and the ‘initial assessment’ referred to in the letter of 2 July 2020 but no information was provided in response to that request.

It was held that, in accordance with the instruction in Heggie2, the inquiry as to the reasonableness of the employer’s actions in respect of discipline must focus on the incidents which have caused the injury. In this case, those events occurred on and before 2 July 2020. Therefore, the actions of the employer after 2 July 2020 were not relevant in answering the question of reasonableness.

What was proposed by the letter of 2 July 2020 was a fact-finding investigation antecedent to a determination of misconduct. It was not obligatory for the employer to provide the worker with statement evidence from witnesses and the other complainants, for the purposes of the investigation.

Conversely, the worker would undoubtedly be entitled to that evidence if the investigation established that disciplinary action was required.

In addition, the employer’s Managing Misconduct Policy required that the staff member concerned should be advised about the allegations against him or her and the advice ’must contain sufficient information about the allegations to allow the staff member concerned to provide a considered response.’  The letter of 2 July 2020 complied with that policy. It provided the worker with a clear summary of the allegations made by the complainants and it placed him in a reasonable position to provide a considered response to the allegations.


This case confirms that an employer does not necessarily have to provide all evidence to a worker in the context of a disciplinary investigation in order for the employer’s actions to be ’reasonable’ under s11A. However, it is important that employers adhere to their internal policies when enforcing any disciplinary action.

1 Workers Compensation Act 1987

2 Northern NSW Local Health Network v Heggie (NSWCA 2013)