The employer’s defence under section 11A(1) of the Workers Compensation Act 1987 (WCA) was rejected on the basis that the worker had not been afforded procedural fairness as he had not been provided with the statements obtained in an investigation relating to allegations of sexual harassment made against him.

The Arbitrator and the Deputy President on appeal found that a section 11A(1) defence was not made out as the issue of reasonableness due to the withholding of the statements from examination before the Commission.

Background

The worker was employed as a Security Monitoring Facility Supervisor with the employer and supervised a team of eight workers. A complaint was made against the worker by two female colleagues in October 2015 in relation to the worker harassing them, following them to the toilet and touching them.

During a meeting on 10 November 2015 with his managers, the worker denied acting inappropriately. A further meeting took place on 23 November 2015 when the matter was referred to the Workplace Conduct and Investigation Unit and on 27 November 2015 the worker was removed from his supervisory duties and transferred to a different work area pending the investigation.

The worker ceased employment in March 2016 after consulting his GP.

Following an investigation into the allegations against the worker, a further complainant was identified who also alleged inappropriate touching by the worker. On 22 March 2016 the worker was requested in writing to respond to the allegations, although the specific dates or times of the allegations could not be provided. The worker was notified that the investigation would continue in the absence of a response from him.

The worker instructed solicitors who responded on his behalf in April 2016. The worker was not interviewed at any time.

Ultimately the allegations were substantiated and the worker was dismissed. The worker then claimed workers compensation which was declined by way of dispute notices relying on a section 11A(1) defence. Proceedings in the Workers Compensation Commission were then commenced by the worker.

The primary issue that arose before the arbitrator was whether the employer’s conduct was reasonable for the purposes of a section 11A(1) defence.

Decision

In the first instance, Arbitrator Harris determined that the section 11A(1) defence was not made out. He did however accept that the employer’s decision to transfer the worker to alternative duties during the investigation was reasonable as the safety of employees far outweighed the worker’s interests.

Arbitrator Harris referred specifically to the employer’s decision not to provide the worker with any of the statements or attachments obtained as part of the investigation. The arbitrator considered that the statements should have been provided to the worker in this instance however did not consider that the worker had any right to question the witnesses.

The arbitrator also accepted that there was unfairness in how the conclusions were reached in the investigation noting that the worker was not interviewed. Arbitrator Harris referred to the decision of State of NSW v Stokes (2014) NSWWCCPD 78 in which it was found that the employer had failed to discharge its onus of establishing that its actions were reasonable due to the absence of putting on appropriate evidence.

Arbitrator Harris held that the worker was entitled to procedural fairness. The arbitrator considered that the employer had intentionally withheld the statements from examination before the Commission with no explanation given. The arbitrator could therefore not determine the reasonableness of the employer’s actions.

The employer appealed the decision of Arbitrator Harris on four grounds, all of which were rejected by Deputy President Snell and the Arbitrator’s decision was upheld. D/P Snell rejected the employer’s argument that the worker was fully appraised of the allegations and was given ample time to respond.

On the issue of reasonableness, D/P Snell noted that an employer’s compliance with its own protocols could be highly relevant to the issue. However he noted the case of Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle v Broad which considered that an employer complying with its own protocol would only be considered reasonable if those protocols were objectively reasonable.

D/P Snell considered that the Arbitrator was not required to determine whether the worker had engaged in misconduct, rather whether the employer’s actions were reasonable.

In addition D/P Snell noted that the employer’s actions in withholding the relevant statements taken during the investigation could suggest the depriving of the respondent of an opportunity to make submissions was the appellant’s intention, or they could simply record that the respondent’s ability to make submission was impeded as a result of the failure.

Implications

This decision confirms that in relying on a defence under section 11A(1) of the WCA 1987 the actions of an employer will not be considered reasonable if procedural fairness is not afforded to the worker. In this case the withholding of statements and other information obtained during an investigation into the worker’s actions resulted in reasonableness not being able to be determined.