Killen v SafeWork NSW and NSW Rural Fire Service [2022] NSWIRComm 1017 | Case summary

Industrial Relations Commission (NSW)|2021-10-12|Before: Ms J

Background leading to the involvement of the first respondent

Not in dispute between the applicant and the second respondent is that: 1. In May 2017 four District Managers of the second respondent made bullying complaints against their Regional Manager to the second respondent. 2. The second respondent began an assessment of the complaints in July 2017. 3. The second respondent determined to deal with the complaints as interpersonal grievances rather than bullying complaints and referred the complaints to an external investigator on 4 September 2017. 4. The second respondent granted multiple extensions to the external investigator, ultimately receiving the investigator's report on 28 May 2018. 5. On 15 August 2018 the second respondent determined that the Regional Manager had not engaged misconduct but did counsel the Regional Manager. 6. Before the investigation was concluded, the Regional Manager was assigned to a new role which did not involve supervising the four District Managers. The assignment to the new role was unrelated to the complaint or its investigation. 7. Until the Regional Manager was assigned to the new role, the District Managers continued to report to the Regional Manager.
The unchallenged evidence of the three District Managers was that being left reporting to the Regional Manager during the lengthy period of the investigation caused them substantial distress, including to the level of medically diagnosed anxiety or mental health conditions, and periods of time off work, some of significant length.

The Improvement Notice and Internal Review

Both on the face of the Improvement Notice [6] , and based on the evidence of Mr Shepherd [7] , he issued the Improvement Notice because: "The PCBU's current processes for investigating alleged bullying and other psychosocial hazards exposes workers/persons to a risk to their health and safety due to a significant delay in responding to reported psychological health effects at the earliest available opportunity. i.e. the grievances lodged by multiple managers in May 2017 against [a senior manager] involved multiple reports of psychological health effects to multiple investigators, resulting in the completion of any external investigation in May 2018 with no action taken to address the psychological health effects during this 12-month period."
In paragraphs 10 and 11 of his written statement, Mr Shepherd [8] also referenced his participation in an assessment of a different bullying investigation at the second respondent as information available to him. In his statement, his evidence was that the separate bullying investigation was relevant to the issuing of the Improvement Notice.
The Improvement Notice required the second respondent to: "1. … [Develop], implement and maintain a safe system of work for the reporting, evaluation, and investigation of bullying and other psychosocial hazards. 2. The safe system of work should, so far as is reasonably practicable, include but not be limited to: - the early identification of psychological risk factors arising from bullying as a work health and safety issue; - the assessment of control measures for the effective management of psychological hazards (e.g. poor workplace relationships) to ensure the work health and safety of all parties involved; and - a timely investigation process which minimises the impact of the investigative processes on the site physical and psychological health of all parties."
On 17 April 2019 the second respondent sought an Internal Review of the Improvement Notice. It did so on four bases [9] : 1. "Having regard to the background of the matter as outlined …, as well as the factual matrix …, it was not reasonable for [the] Inspector … to form the view that an Improvement Notice was appropriate or necessary in the circumstances." 2. "While … the mandatory directions required by the Improvement Notice relate to fundamental obligations under WHS laws, … these mandatory directions are unnecessary in the circumstances. The [second respondent] currently has a detailed system of work in place that addresses effective management of psychosocial hazards." 3. "The timeframe in which the contravention must be remedied … is highly unreasonable. It is unrealistic to expect that the [second respondent] can meaningfully comply with the mandatory directions of the Improvement Notice … within a period of 2 months." 4. The Improvement Notice named the person about whom bullying complaints had been made.
On 6 May 2019 Mr Allison issued a decision revoking the Improvement Notice [10] . He did so on two bases, being: 1. "… there is no claim of [a] contravention extending up to the date the notice was issued, or that it is likely to continue"; and 2. The identification of the person about whom bullying complaints had been made.
Mr Allison's decision did not address the issue of whether there had been a contravention of the Act in circumstances that made it likely contravention would be repeated. That is, the alternative basis for issuing an Improvement Notice pursuant to section 191(1)(b) of the Act.
In his decision, Mr Allison also did not address the second basis on which the second respondent had sought an internal review, namely that the second respondent already had a detailed system of work in place that effectively addresses management of psychosocial hazards. Presumably this was because he found there was no continuing relevant breach, and accordingly there was no basis to issue an improvement notice.
Nowhere in the decision of Mr Allison was there any reference to the third basis for internal review, being that two months in which to comply with the corrective order was an unreasonable timeframe. Again, this was presumably on the basis that he had found there was no basis to issue an improvement notice.
On this issue, the submissions of the second respondent on external review only briefly referred to the time frame in which to comply, noting almost in passing that consultation on changes would alone take more than the one month the applicant pressed the Commission to give the second respondent to update its policies and procedures [11] .

The second respondent's policies

The second respondent led extensive evidence as to the policies and written procedures it had in place to deal with bullying, interpersonal grievances, and other related disputation that can be expected in any organisation the size of the second respondent.
The second respondent made much of having updated these policies, having obtained specific funding to implement relevant training related to those policies, and having adopted new policies, since the time at which the Improvement Notice was issued.
The second respondent submitted that the changes made since the issuing of the Improvement Notice made for a more efficient process, which would assist with the timeliness of dealing with bullying complaints.
Ms Alderson submitted that it would be inappropriate for the second respondent's policies to set specific timeframes for investigations of bullying and harassment investigations [12] . This was because complaints would be too varied and different from each other. Ms Alderson also submitted that "[a]adding an arbitrary number … would … not affect the actual risk of delay …" [13] .
Later, Ms Alderson did take the Commission to time frames in the second respondent's policies which did set out when certain steps "have to be met", in grievance processes [14] .
In any event, the second respondent did not take the Commission to anything in its policies or procedures, either as existing at the time of the Improvement Notice, or as subsequently amended, which amounted to a process or procedure to monitor and manage the time that investigations of bullying complaints would take.
Ms Schmidt [15] gave evidence that when a complaint involves a manager and person who reports to them, the second respondent conducts an assessment as to risk mitigation, including such issues as changing reporting lines, temporarily re-assigning, or suspending the manager. Ms Schmidt did not refer to or describe the existence of any written policy outlining this process.
Other than Ms Schmidt's evidence, the second respondent did not take the Commission to any policy or process to consider whether reporting lines should be amended, or other action should be taken, during an investigation of a bullying complaint by an employee against their direct manager.
As it was readily within the power of the second respondent to produce such a policy if it exists, on the balance of probability I find that there is no such written policy or procedure.

Finding as to facts

In my view, the totality of the evidence on external review shows: 1. The second respondent had at the time the Improvement Notice was originally issued, and has now, comprehensive policies covering personal interactions, bullying and interpersonal conduct. 2. Despite the finding in item (1), the second respondent did not at the time the Improvement Notice was originally issued, and does not now, have any process to monitor and manage the timeliness of investigations of complaints of bullying, harassment or interpersonal grievances; 3. The second respondent's policies and documented procedures did not at the time the Improvement Notice was issued, and do not now, place any timeframes around the investigation of complaints; 4. As the applicant submitted, the risk of not having such processes "… in fact crystallised …" [16] because an excessively lengthy period to investigate and report on complaints about the Regional Manager actually resulted in further harm to the Area Managers; 5. A further example of the consequences of a lack of an appropriate process, being an unrelated investigation into a complaint against one of the Area Managers, which was also excessively lengthy; and 6. The second respondent did not then, and does not now, have any formal process by which to assess the appropriateness of leaving an employee reporting to their existing manager in circumstances where the employee has made a complaint in the nature of bullying, harassment or an interpersonal grievance.
In the case of each of the findings as to fact set above in [50] it is clear from the evidence before this Commission that there is a reasonable basis for coming to these conclusions both now and at the time the Improvement Notice was originally issued.

Applicant's submissions

In its Statement of Case dated 7 November 2019, the applicant proposed that: "8. The question for the Commission is whether the decision of the internal reviewer should be: 9. varied as proposed by the [applicant]; or 10. otherwise confirmed, revoked or varied." [17]
The applicant's primary submission was that the first of these was the proper outcome. That outcome would restore the original Improvement Notice, subject to some minor amendments.
The applicant's case has always been put primarily on the basis that the overly lengthy time to investigate complaints against the Regional Manager was the foundation of their case. This primary basis was buttressed by a separate investigation into complaints against one of the Area Managers, which the applicant submitted further demonstrated that the second respondent did not resolve complaints in a proper time.
The substance of the applicant's case was that Inspector Shepherd held the relevant belief required by s 191(1)(b). Importantly, the length of time to investigate the complaints outlined at [49(4) and (5)] was in itself sufficient to found that belief as reasonably held.
In its Outline of Submissions, dated 14 February 2020, the applicant submitted that: "6. Multiple extensions were granted to the investigator without consultation with any of the complainants. [The District Managers] give evidence about the stress that: a. being left reporting to [the Regional Manager]; b. the extensive delays in finalizing the investigation; and c. the lack of communication by [the second respondent], during and after the investigation, caused them. Both (sic) suffered psychological injuries as a result, and some were off work for long periods." … 28. It appears that what is centrally in issue in these proceedings is whether [the belief of the inspector] was reasonably held. Given that: a. As a matter of common sense, taking over a year to resolve a bullying complaint is likely to create a psychological risk to both the complaint and the complainee, which is only exacerbated by leaving the parties working directly with one another and otherwise 'in limbo'; b. This risk in fact crystallised (as it had at the time the inspector formed his belief), with [the District Managers] suffering psychological injury and, in the case of [one of them], requiring extensive time off work as a result of the process; c. On the evidence before the Commission, this was not a one-off or an outlier: an identically defective process was followed in respect of complaints made against [one of the District Managers] , and [that District Manager] again experienced a level of stress detrimental to his mental health; [18] and d. At the time the inspector formed his view, [the second respondent] had not taken any steps to improve its policies or procedures, the Commission would comfortably conclude that there was a reasonable basis for the Inspector's belief. … 32. The Commission would be fortified in this conclusion by having regard to the Decision-maker's reasons. The decision to 'set aside' the Improvement Notice was based only on: a. The view that the Improvement Notice was a not validly made, in that there was no 'claim of [continuing] contravention', which has now been determined to be incorrect; and b. The fact its drafting could lead to [the Regional Manager] being identified if it were displayed, a matter much more appropriately addressed by variation.
The applicant also submitted, at paragraph 16 of its Outline of Submissions, that "[the second respondent] has not taken any steps to change processes for investigating and managing bullying complaints."
In oral submissions for the applicant, Ms Saunders of Counsel made the pertinent point that the second respondent having policies which prohibit bullying is "… a strong start, but it doesn't really come to grips with ... the question of time, [or] the question of handling direct reporting lines …" [19] . She submitted that "[t]he policy is a good start, but it's only as good as its implementation …". [20]

The second respondent's submissions

At paragraph 47 of its Outline of Case, the second respondent summarised the applicant's case as being: "(a) the system for handling bullying complaints [at the second respondent] is defective; (b) the system is defective because: (i) complaints are not resolved in a timely way; (ii) the psychological wellbeing of complainants is not protected during the course of the investigation; (c) propositions (a) and (b) above are demonstrated by the facts that: (i) the Regional Manager investigation took 16 months to complete; and (ii) the manager was not suspended during the investigation."
With some qualifications about paragraph (c), I consider this is otherwise a fair summary of the case put by the applicant. It is certainly the case against which the second respondent put its case.
Paragraph (c)(i) of this summary omits the applicant's reference to the unrelated investigations into allegations against one of the Area Managers.
In relation to paragraph (c) (ii), the applicant's submission that the psychological wellbeing of complainants is not protected is more accurately put as being that complainants are left reporting to the manager about whom they have complained. The applicant did not narrow their focus to a suggestion that the subject of the complaint should be suspended. Read fairly, the applicant left open how the respondent could resolve the issue of reporting lines.
The second respondent says that the external review should be dismissed because: 1. There is and was no reasonable basis to form a view that the second respondent was, at the time of the Improvement Notice, contravening the Act; 2. There is and was no reasonable basis to form a view that the second respondent had contravened the Act in circumstances where it was likely that the contravention would be repeated; 3. The second respondent has and always had detailed systems of work in place to deal with the effective management of psychosocial hazards; 4. The second respondent has further improved its policies and procedures and added further resources to assist it to deal with risks posed by psychosocial hazards in its workplaces; 5. The form of the direction given in the original Improvement Notice was too vague to be appropriate. It lacked sufficient specificity as to the action the second respondent should take; and 6. The applicant has appropriate internal processes which he could and should use to address his concerns.

Case put to the Commission by the applicant

As set out in [54] above, the applicant put its case at external review primarily on the basis that the investigation into alleged bullying by the Regional Manager, and the unrelated investigation into a complaint about one of the Area Managers, were in combination a sufficient basis on which to find that a continuing contravention arose.
The obvious weakness in the applicant's position, that it relies on a narrow set of circumstances, was unsurprisingly focused on by the second respondent. There is force to the second respondent's submissions that one investigation, as the respondent characterises the factual matrix, is not a proper basis to draw a conclusion that the second respondent has a defective system of work.
Notwithstanding the existence of the second investigation, which was known at the time the Improvement Notice was issued, I have concluded that the second respondent is correct in this submission.
This conclusion was not as clear cut as submitted by the second respondent; indeed, it was a finely balanced conclusion. But ultimately it was the correct decision.
On the evidence before the Commission, given the facts known at the time the Improvement Notice was issued, and the facts as known now by the Commission, there is not a sufficient basis to find a continuing contravention, or past contravention in circumstances which make it likely that the contravention will be repeated, based on the two investigations alone.
The applicant submitted that any evidence that would show or contradict the two investigations being outliers was held by the second respondent. That may be so, but it was not in evidence before the Commission. The onus to establish the basis for intervention was on the applicant.
Nevertheless, having heard the evidence on external review, I cannot agree that the correct or preferable outcome is to simply dismiss the application.
As the parties agreed, and as set out in [21-23], this is a hearing de novo, the Commission stands in the shoes of the regulator and should come to the correct and preferable decision based on the evidence.

Case put to the Commission by the second respondent

The first of the second respondent's submissions is logically built upon the view that as there was no bullying investigation which was ongoing at the time of issuing the Improvement Notice, there was no continuing breach at that time. This was the basis upon which the internal reviewer set aside the Improvement Notice.
The next of the second respondent's submissions was put on the basis that, without conceding any contravention had occurred, if any contravention had occurred, there was no reasonable basis to conclude it would be repeated. It was put that a single bully investigation taking too long to conclude was not a basis to conclude that other investigations would also take too long to conclude.
While internally logical, these submissions are misdirected in focusing on the existence or otherwise of a specific complaint and the actions of the second respondent in addressing that specific complaint.
Correctly understood, the relevant contravention is that the second respondent does not have a system in place to manage the investigation of bullying complaints, so that they do not, so far as is practicable, take excessively long to conclude.
I do not wish my decision to be read as unreasonably critical of the inspector who issued the Improvement Notice, especially as he did not have the benefit of the extensive submissions I received, nor the subsequent time for consideration I have had before issuing my decision. However, the way in which the Improvement Notice was phrased has I think caused the second respondent to misconceive the issues to which it should be responding.
It seems to me that the use of the abbreviation "ie" in the Improvement Notice has contributed to the focus of the second respondent's dissatisfaction, and the decision on internal review, being misdirected. Had the Improvement Notice used the abbreviation "eg" instead of "ie", this would have gone some significant way to keeping the focus of the contravention on the lack of a relevant process. It is possible the inspector intended to use "eg" but in the course of a busy schedule mistakenly used "ie".
Nevertheless, in my view the inspector correctly identified in the opening words of the Improvement Notice that the contravention, which he believed was occurring, and which enlivened s191 of the Act in the current circumstances, was the second respondent not having a system of work that so far as is practicable, prevents bullying complaints taking an excessive length of time to conclude.
For the reasons set out in the paragraphs below, based on the evidence before the Commission, there was a reasonable basis for the inspector to conclude that such a contravention existed and was continuing.
As I have noted above in [41-43], the second respondent led extensive evidence as to the policies and written procedures which it had in place to deal with bullying, interpersonal grievances, and other related disputation. It also led extensive evidence of having updated these policies, having obtained specific funding to implement relevant training related to those policies.
I accept that the second respondent has comprehensive policies relating to how people within the second respondent should treat and deal with each other, and as to how complaints about breaches of these proper processes should be responded to by the second respondent.
However, the second respondent did not, and conceded it cannot, point to any aspect of those policies specifically directed to monitoring and managing the timeliness of investigations in to alleged breaches of these polices collectively.
The extensive evidence of the second respondent about its polices is both relevant and a positive statement by the second respondent of its approach to communication and respect between staff. However, as submitted by the applicant, this is only part of having a procedure which properly responds to allegations that managers or other employees have breached such requirements.
It is obvious that the investigation into alleged bullying by the Regional Manager took longer than any reasonable organisation, especially one the size of the second respondent, could defend as appropriate. The second respondent conceded that the investigation took longer than was reasonable.
It is wrong for the second respondent to say these matters were beyond its control because it had hired an external party to conduct the review.
Analogously, the second respondent might choose to outsource its payroll preparation, but it would retain legal responsibility for the accuracy of that payroll. It would be expected to devote sufficient internal resources to monitor the correctness of that payroll provider and enhanced internal resources in circumstances where there was a reasonable basis to believe that the external provider was failing to provide the service as contracted.
Accordingly, the second respondent has failed to demonstrate that it had proper processes in place, either at the time of the original incidents, or now, to ensure that complaints were dealt with in a timely fashion.
Given the foregoing, the third of the second respondent's submissions, while in large part accurate, does not succeed.
It is necessary to have an adequate policy, but it is insufficient to do so. A sufficient procedure requires proper implementation, including implementation within an adequate timeframe.
Also, and again from the foregoing analysis, it is clear that the fourth submission of the second respondent, that it has improved its policies and procedures and added further resources to assist it to deal with risks posed by psychosocial hazards in its workplaces since the Improvement Notice was issued, also fails.
Based on the Sedco Forex rationale, had the second respondent changed its procedures to better control timeliness of such investigations, I consider that I would have still been required to uphold the claim made on external review application, albeit the "defect" had subsequently been rectified. However, I do not have any evidence of such a change having been made.
The second respondent's fifth submission was in my view stymied by a gap in the evidence.
I do not know if the first respondent has a Standard Operating Procedure or internal guidance about the issuing of Notices of Improvement. In response to a question from the Commission, Mr Moir of Counsel for the first respondent agreed that there was no evidence before the Commission as to whether the first respondent had any Standard Operating Procedures, or similar documents, which could guide the drafting of such directions.
Mr Allison did not address the wording of the Improvement Notice, either approvingly or disapprovingly, in his decision on internal review. He was not directly asked to do so by the second respondent's request. In any event he may have considered it unnecessary to do so, even if he thought the wording unusual, given the expressed bases for his decision.
While the second respondent submitted that the form of wording was unusual, it did not advance the argument much beyond the submission that the wording was lacking specificity as to what action the second respondent should take.
On the evidence and submissions in this proceeding, I am unable to find the form of wording used in the mandatory action section of the original Improvement Notice is so unusual that I should not have regard to that wording.
The sixth and final submission of the second respondent, was put on the basis that the issuing of an Improvement Notice is a discretionary exercise of jurisdiction. Undoubtedly, that is a correct view.
The applicant's response to this submission was that he did not have faith that raising his issues in internal forums would have resulted in any advancement of his concerns.
There is a paradox in the applicant complaining that the second respondent does not have a proper system of work in place, while at the same time not going through all available internal steps before using an external process. Nevertheless, that external process is legitimately available to the applicant. The external process is not stipulated to be contingent on other processes having been attempted.
The finding by Mr Allison that the Improvement Notice should be revoked, because there was no suggestion of a continuing breach does not accord with the evidence before the Commission.
The factual circumstances existing at the time of the internal review, and which continue to exist to this day, mean that the correct and preferable decision cannot be the complete revocation of the Improvement Notice.

Reporting lines during investigations

On the question of complainants being left to report to a manager about whom they have made bullying or similar complaints, there is force to the submission of the second respondent that the seniority of the complainants was such that they were not in the most vulnerable class of employees.
Nevertheless, it is clear from the evidence that at least some of the complainants were badly affected by continuing to report to the manager about whom they had made bullying complaints.
Indeed, it is clear that some of the complainants suffered sufficiently that they were afforded considerable time off work on the basis of accepted medical advice because of the impact of continuing to report to that manager.
As with the question of timeliness of investigation, the correct question is not whether in a particular case leaving the reporting line unaltered was a good or a bad decision. The correct question is whether the second respondent has a system of work that can properly address such risks.
In accordance with the finding set out in [49] above, the second respondent does not have a written policy in place.

Need for intervention of the regulator based on findings as to facts

The second respondent has comprehensive policies covering personal interactions, bullying and interpersonal conduct, and these do not require the intervention of the regulator.
The second respondent does not have in place processes to properly manage the timeliness of complaints of the nature of bullying or inappropriate interpersonal conduct. This does require the intervention of the regulator.
The second respondent does not have in place processes to properly assess whether reporting lines need to be altered when bullying or similar complaints are made by an employee about their direct manager. This does require the intervention of the regulator.

Content of intervention

None of the findings require the second respondent to change its extensive written policies in order to rectify the identified deficiencies. It is sufficient that the second respondent implement management overlays that would: 1. In the first case, exercise sufficient control over investigations so that those investigations are concluded within a reasonable period; and 2. In the second case would provide relevant management a framework within which to consider whether, in the specific circumstances of a particular case, and taking into consideration both the relative seniority of the employee and the impact on the employee and known to the second respondent, whether it is appropriate that any change in reporting line is needed while an investigation proceeds.
This formulation also conveniently addresses the concerns of the second respondent as to the specificity of the remedial direction to it. It removes completely the basis of the second respondent's objection that the original Improvement Notice was too vague to be capable of being complied with.

Timeframe to comply

This formulation also conveniently addresses the concerns of the second respondent that the Improvement Notice gave the second respondent an inadequate period in which to comply.
The second respondent submitted, both in writing and orally before this Commission, that it would require 12 months in which to rewrite its policies if it were to implement such a process. This was expressed to be on the basis that other internal policies required a process for consultation and implementation which could not be completed within 12 months.
To have in place a process which would prevent excessively lengthy times for the investigation of similar complaints, the second respondent could re-write its policies. But it is not necessary for the second respondent to do so.
The second respondent could exercise management control by more regular monitoring of the progress of such reviews, by selecting reviewers with capacity which had been expressly confirmed, or by providing internal resources which would have the effect of making the timely completion of reviews more likely.
None of these management actions in my view require the wholesale re-writing of the second respondent's policies.

Orders

In conformity with the matters set out in [21] above, I propose to vary the decision on internal review by amending, arguably extensively, the original Improvement Notice.
In conformity with the matters set out in [22] above, I do not consider the variations change the subject matter of the Improvement Notice.
The decision on internal review is varied to: 1. The 'Brief description of how the provision is being or has been contravened' box on the Improvement Notice is varied so that it reads: 1. 'The PCBU's current policies and procedures are inadequate in failing to have a process or procedure for the oversight of the evaluation and investigation of bullying and other psychosocial hazards such that the evaluation and investigation of such complaints is completed in a timely fashion. 2. The PCBU's current policies and procedures are also inadequate to guide the PCBU in determining how it should respond when an employee makes a bullying or similar complaint against their manager.' 1. The 'Directions as to the measures to be taken to remedy or prevent the contravention or likely contravention' box on the Improvement Notice is varied so that it reads: 1. You must develop, document, implement, and maintain a management process to monitor and manage investigations of bullying and other psychosocial hazards such that the evaluation and investigation of such complaints is completed in a timely fashion. 2. You must develop, document, implement, and maintain a management process to evaluate whether it is appropriate to leave an employee, who has made a complaint against their manager, reporting to that manager. The process should include considerations as to the seniority of the parties, the known and reasonably anticipated impact of the employee continuing to report to the manager, and possible means to change reporting lines in appropriate cases. 1. The date by which the contravention must be remedied is varied to 18 May 2022. Christopher Muir Commissioner

Endnotes

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (on behalf of its member Mick Amerasinghe) and WorkCover Authority of New South Wales [2012] NSWIRComm 143 at [50], NSW Rural Fire Service v SafeWork NSW 257 IR 467 at [70]; Growthbuilt v SafeWork NSW 274 IR 317 at [34] - [36].
See discussion in Sydney Trains v Safework NSW (2017) 266 IR 276 at [19] - [26]
NSW Rural Fire Service v SafeWork NSW (2016) 257 IR 467 at [72]; noting that a contrary view was expressed in Sydney Trains v Safework NSW (2017) 266 IR 276
Page 24, line 1 of the transcript.
Page 7, line 34 of the transcript.
Page 6 of the Court Book.
Page 882 of the Court Book.
Page 885/6 of the Court Book.
Page 863 of the Court Book.
Page 877 of the Court Book.
Respondent's Outline of Case, paragraph 6, page 681 of the Court Book.
Page 29, line 30 of the transcript.
Page 29, line 44 of the transcript.
Page 35, line 13 of the transcript.
Page 689, paragraph 15 of the Court Book.
Paragraph 28(b) of the applicant's Outline of Submissions.
Paragraph numbering is as per the applicant's Statement of Case.
The applicant's Outline of Submissions referenced the testimony of the District Manager.
Page 11, line 4 of the transcript.
Page 15, line 18 of the transcript. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2022

The Commission's task pursuant to s 229

All parties agreed that the external review was a merits review, and that this did not involve the Commission needing to find any error in either the internal review or the original Improvement Notice in order to exercise powers pursuant to s 229 of the WHS Act.
In his Outline of Submissions, filed 14 February 2020, the applicant submitted that: "19. Section 229(4) empowers the Commission to conduct a merits review of the decision: that is, the question is whether the Improvement Notice should have been cancelled. It is not necessary to demonstrate error on the part of the decision-maker. As Staff J observed in AFMEPKIU (NSW) (on behalf of its member Mick Amarasinghe) v WorkCover Authority of NSW [2012] NSWIRComm 143: The power granted to the Commission under s 229(4) of the WHS Act is to conduct a merit review. That is, to 'confirm, vary or revoke' the decision being reviewed so as to determine what is the correct or preferable decision. Accordingly, the Commission 'stands in the shoes' of the decision-maker and may only exercise those powers that were available to that decision-maker. 20. This decision was cited with approval in NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4, where Kite AJ … ultimately held at 72: The external review is an administrative merits review to be undertaken following the normal arbitral processes of the Commission. While the reasons for decision on the internal review would be relevant and accorded due weight the Commission is intended to make a decision based on all the material before it at the date of the decision. 21. Some disagreement with this approach was expressed by Newall C in Sydney Trains v Safework NSW (2017) 266 IR 276, who said: In a de novo hearing, all issues must be retried and the party succeeding below enjoys no advantage: Drake v WorkCover NSW (1999) 90 IR 432 at 440; Turnbull v NSW Medical Board at 298; Sweeney v Fitzhardinge (1906) 4 CLR 716. The reasons for the reviewer's decision would in a de novo hearing been given no weight; they would in no wise be a relevant consideration. The matter is dealt with afresh. … 23. In any event, it may be that the controversy is more apparent than real. There is no dispute that the correct approach requires a re-consideration of the evidence, and a determination of the correct or preferable decision. The exercise does not require a search for error on behalf the decision-maker. 24. However, that does not mean the reasons themselves are entirely irrelevant to the question. The task is analogous to that which arises in the appeal of an evaluative (ie non-discretionary) question. As the High Court set out in Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30, errors in reasoning (including, for example, conclusions of fact or based on facts which are not available on the evidence) are relevant in that they may demonstrate incorrectness in the final result such that the Tribunal might more comfortably conclude that it was not the correct outcome. Something less than deference but more than total disregard is required. 26. Read in context, and in particular the extensive consideration of the distinction between de novo and re-hearing which preceded the passage cited at [21] above, it appears this approach is what is being referred to in NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4."
The second respondent agreed, with its Outline of Case of 3 April 2020 submitting that: "37. In conducting an external review of the internal review decision, the Commission's task is to come to the decision that it thinks is correct and preferable [1] . The Commission may "confirm, vary or revoke" the decision of the internal reviewer: s 229(4). 38. While the language of s 229(4) is different to that in respect of the powers given to the internal reviewer of the decision (which is to set aside the decision and substitute an appropriate decision), it has been recognised that this Commission can substitute its own decision for that of the internal reviewer [2] . 39. Whether it was the correct and preferable decision of the internal reviewer to set aside the Notice is a decision to be made on the material now before the Commission."
Perhaps unsurprisingly, the applicant and the second respondent respectively took the view that the reasons for decision for the issuing of the original notice, or the decision on internal review, were more relevant than the other, and should be accorded appropriate weight.
In this respect, the applicant's submissions are succinctly captured in paragraphs 30 and 31 of its Outline: "30. Once the Commission is satisfied that a valid improvement notice exists, good reason would be needed to set it aside: confirming it is, presumptively, the correct and preferable decision. 31. None exist in this matter. [The internal review decision] accordingly should be revoked."
The second respondent's submission was that: "40. The [second respondent] contends that the reasons for decision on internal review are relevant and should be accorded appropriate weight by this Commission [3] ."
In their totality, the decisions cited by both parties are authority that the Commission may consider any reason or logic articulated by the original decision maker or the decision-maker on internal review, but that the Commission is unconstrained by either of those decisions.
It is clear, therefore, that it is not open for the Commission to proceed on the basis that the original Improvement Notice is presumptively correct, even were I to find that the Inspector believed, on a reasonable basis, that there was a relevant contravention as required by s 191(1). To do so would be to absolve myself of the task set me by s 229 of the WHS Act.
It is also clear from the decisions cited that, in conducting an external review pursuant s 229(4), the Commission is to act on the material before the Commission, and not be constrained by what was before either of the earlier decision-makers.
Both the applicant and the second respondent cited a Full Bench decision of the Fair Work Commission, being Sedco Forex v NOPSEMA [2016] FWCFB 2066. The second respondent, through Ms Alderson of Counsel, cited the decision as further support for its position that "the Commission on appeal is to make its own decision, in place of the investigator, on the basis of the evidence, the material before the Commission." [4]
The applicant also took the Commission particularly to [42] to [45] of the decision, with Ms Saunders of Counsel submitting that in a review pursuant to s 229 the Commission "can't take an exclusively contemporaneous approach but also, by analogy, not an exclusively historical approach." [5]
What is clear from the Sedco Forex decision is that, in making a decision pursuant to s 229, based on the evidence before it, the Commission should not use a contemporaneous factual matrix to set aside what would have been a validly issued Improvement Notice, or indeed a validly determined Internal Review. That is, the external review should not be used to expunge a validly issued notice because the recipient of the notice had subsequently corrected the contravention.
In the matter now before the Commission, this would be a relevant consideration if the facts supported the issuing of an Improvement Notice in April 2019, but the second respondent had made subsequent changes which resulted in such a finding not being open on the facts now before the Commission.
For completeness, it is noted that the first respondent submitted that the task of the Commission could be summarised as follows: "6. As identified in the authorities referred to at [37]-[40] of the Outline of Case filed by [the second respondent], the Commission's task is, in substance, to consider the test in s 191 and make a fresh decision based on the facts and circumstances as at the date of the external review. That is: whether there are reasonable grounds to conclude the [second respondent] is contravening the WHS Act or has done so in circumstances that make it likely the contravention will be repeated, and it is otherwise necessary and appropriate for an improvement notice to issue requiring [the second respondent] to remedy the contravention or prevent a likely contravention. 7. This task necessarily requires the Commission to consider evidence regarding the [second respondent's] process for investigating alleged bullying and other psychosocial hazards. In this regard, a body of material has been put before the Commission as to the position from May 2017 to date, in the form of evidence relied upon by the applicant; the evidence relied upon by [the second respondent]; and the evidence relied upon by [the first respondent]."
In summary, in conducting an external review, the Commission: 1. Stands in the shoes of the regulator and may only exercise those powers that are available to the regulator; 2. Should come to the correct and preferable decision based on the evidence before the Commission, but based on the facts existing at the time of the original Improvement Notice; 3. May consider any reason or logic articulated by the original decision maker, or the decision-maker on internal review, but is unconstrained by either of those decisions and should come to its own decision; 4. May vary, extensively, the decision of the internal reviewer such that a decision on internal review to revoke an improvement notice could be varied by replacing the revocation with amendments to the original improvement notice.
In respect of point (4) in [21] I find that: 1. It is not open to the Commission on external review to completely change the subject matter of the Improvement Notice, as varied, if at all, by the internal review. As a counterpoint it is apparent that the internal reviewer has wider scope, including perhaps extending to changing the subject matter covered by an Improvement Notice; and 2. Any narrower or more technical approach to the power given to the Commission pursuant to s 229(4) could result this application, and likely many other applications for an external review, being left without an effective remedy.
The combination of points (1) and (2) in [21] can be contrasted with the Commission's role in an unfair dismissal application. In such a case the Commission is not to determine whether the presiding member would have dismissed the employee, but to arbitrate within certain constraints on the decision of the employer. In this case, I am to determine the outcome I consider correct and preferable, within confines set by the WHS Act.

Killen v SafeWork NSW and NSW Rural Fire Service

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (9)

Cited By (2)