Yeo v Western Sydney Area Health Service [1999] NSWCC 1 (4 February 1999)

Last Updated: 5 July 1999

CITATION: Yeo v Western Sydney Area Health Service [1999] NSWCC 1

PARTIES: John S Yeo v Western Sydney Area Health Service trading as Cumberland Hospital

TITLE OF COURT: Compensation Court of New South Wales

JURISDICTION: Original

MATTER NO/S: NSWCC 31703 of 1998

DELIVERED ON: 4 February 1999

DELIVERED AT: Parramatta

HEARING DATES: 3 February 1999

JUDGMENT OF: Neilson J

NUMBER OF PARAGRAPHS:

CATCHWORDS: Workers Compensation Statutes & Delegated Legislation; Injury - psychological injury - whether misperception of real events constitutes;

s11A(1)(b) "discipline" -includes all that is antecedently necessary thereto;

"workers" - whether plural meaning should be assigned;

Townsend v Commissioner of Police (McGrath CJ, unreported) applied;

Monier Ltd v Szabo (1993) 8 NSWCCR 305 considered;

Melder v Ausbowl (1997) 15 NSWCCR 454 applied;

Jackson v Work Directions Australia P/L (Walker, J unreported, 14176/96, 1 October 1998) not followed;

Doyle v Manly Pacific International Hotel (Walker J, unreported, 2508/97, 1 October 1998) not followed.

REPRESENTATION

APPLICANT/S

Mr J P Deggens instructed by R L Whyburn & Associates appeared for the applicant

RESPONDANT/S

Mr T A Gotterson instructed by Hunt & Hunt appeared for the respondent

COMPENSATION COURT OF NEW SOUTH WALES

Matter No 31703 of 1998

John S Yeo

v

Western Sydney Area Health Service

Trading as

Cumberland Hospital

4 February 1999

JUDGMENT

NEILSON J

1. Mr John Sinn Chaun Yeo of Lapstone claims weekly payments of compensation from 14 August 1996 to 21 September 1996 and a general order under s60 for the payment of his hospital, medical and like expenses.

2. Mr Yeo is 44 years old. He has a wife and three children. He is a registered nurse and has certificates in psychiatric nursing. He has been employed for many years by the respondent at the Cumberland Hospital as a psychiatric nurse.

3. On 10 August 1996 he received a telephone call to attend upon Mr Francis Mackay Hughes, who is known as Malcolm Hughes, who was also a psychiatric nurse and the director of nursing at the Cumberland Hospital.

4. When the applicant presented in Mr Hughes' office Mr Hughes told him that a complaint had been made against him. The substance of the complaint was contained in a letter addressed by Dr Snars, the acting director of clinical services at the Cumberland Hospital, to Mr Hughes as the director of nursing. The letter sets out that on the morning of 8 August 1996 he received a telephone call making a complaint against Mr Yeo. The complaint was made by Mrs Margaret Kingsley who had been told by her son, Mr Michael Kingsley, that the applicant had made derogatory remarks about Mrs Kingsley.

5. Dr Snars set out the substance of the complaint in his letter which bears date 9 August 1996 and which was obviously handed to Mr Hughes on that day. However Mr Hughes was unable to contact the applicant on 9 August and hence he contacted him on Saturday 10 August 1996 in order to inform Mr Yeo of the complaint that had been made against him.

6. It is common ground that not only was the letter addressed to Mr Hughes by Dr Snars shown to Mr Yeo, but he was also given a copy of it. It is common ground that Mr Hughes told the applicant that a meeting would be held at 9.30 am on Wednesday 14 August 1996 to investigate the allegation. It is clear that the meeting could not have been held on Sunday 11th probably because of the absence of Dr Snars and/or the applicant and/or Mr Hughes from the hospital on that day.

7. Monday 12 and Tuesday 13 August 1996 were rostered days off for the applicant. The first day upon which the meeting could be held with the necessary persons in attendance was in fact Wednesday 14 August and the meeting, as I have said, was scheduled to commence at 9.30.

8. The applicant told me that the tone of Mr Hughes when delivering this information to him was very forceful. He said that Mr Hughes appeared to be very angry and that he was staring at him. The applicant said that he did not say very much and that he felt shocked. He said that his thoughts started racing and he had palpitations. He said that he felt very worried. He told me that Mr Hughes in his forceful and angry manner told him that if the allegation was proved he would be "sacked".

9. The applicant told me that his impression of the meeting he had with Mr Hughes was that he had been prejudged and that he would be found or was guilty of the offence. The applicant did work on Sunday 11 August but with increasing mental agitation. His agitation continued on Monday 12 August whilst he was on his rostered day off and he found it necessary to phone the Katoomba Health Centre where he spoke to a psychiatric nurse. She told him that it would be necessary for him to see a psychiatrist but at first he would have to see his general practitioner, Dr Chew. Arrangements were made for the applicant to see Dr Chew on 13 August 1996.

10. The applicant said that Dr Chew told him that he should not attend at work at 7.00 on the morning of 14 August because he was unfit to work. He told the applicant that he need turn up for the meeting only. He gave him a certificate of unfitness for work and hence the commencement of the claim on 14 August 1996. It is common ground that the meeting of 14 August 1996 was held but the applicant was unclear as to the effect of that meeting. Eventually he returned to work on 22 September 1996.

11. On 13 August 1996 the applicant told Dr Chew that Mr Hughes had indicated to him that he would be sacked if the complaint was proved. The applicant told Dr Chew that Mr Hughes had been wanted to get rid of him for the past twelve months since an earlier complaint against Mr Yeo had been investigated and dismissed. It is clear that the applicant indicated to Dr Chew that Mr Hughes had an animus against the applicant.

12. On 30 August 1996 after the meeting of 14 August 1996, the applicant was interviewed by a psychologist, Mr Gregory Sawyer. The applicant told Mr Sawyer that he was surprised when he was handed a copy of the complaint by Mr Hughes and that he, Mr Yeo, felt that the matter have been extremely urgent given Mr Hughes' presence on the grounds of the hospital on Saturday 11 August. It appears also to be common ground that the usual days of work of the director of nursing, Mr Hughes, are Monday to Friday. The applicant also told Mr Sawyer that Mr Hughes told him that if the allegations were proven correct, he would be "sacked".

13. In Mr Sawyer's report he says this:

Mr Yeo remarked he felt the whole process of accusation and investigation was not normal; being heavy handed and intimidatory. Mr Yeo commented he felt there had been no investigation of who had made the complaint and no prior interview with himself regarding the circumstances surrounding the complaint. He indicated he felt he had been deemed guilty until proved innocent.

Mr Yeo remarked he felt extremely vulnerable and attacked by management.

Eventually the applicant saw a psychiatrist, Dr Paul Thiering on 17 September 1996. Dr Thiering records, as part of the history obtained by him, the following:

Mr Yeo felt affronted and unsupported by the "heavy handed" manner in which the matter was handled and felt that there had been a presumption of guilt against him. He felt that this was part of an ongoing dispute between himself and the director of nursing and that this was a vindictive action on behalf of the director of nursing.

Further in his medico legal report Dr Thiering say this:

Mr Yeo felt very unsupported, believed that unfair criticism had been made against him and he has still been unable to disprove them.

In commenting on whether the applicant's employment was a substantial contributing factor to his illness, Dr Thiering said it was:

In particular the director of nursing's manner of dealing with the complaint about him [Mr Yeo].

14. It is clear that the applicant became psychiatrically disturbed prior to the meeting of 14 August. A diagnosis of the applicant's psychiatric problem was made by Dr Chew on 13 August 1996. It is not the events of 14 August 1996 which are the cause of the applicant's incapacity for work in the relevant period but rather the events of 10 August 1996.

15. It is clear from the applicant's evidence-in-chief and from the histories that he gave to Dr Chew, Mr Sawyer and Dr Thiering that the applicant left the meeting on 10 August with the impression that he had been presumed guilty, with threat of the termination of his services hanging over his head.

16. Although the applicant did not tell me of this, he gave histories to the three practitioners to whom I have referred of an animus held by Mr Hughes against the applicant; such an animus would explain why Mr Hughes behaved in a forceful and angry or threatening and intimidating manner towards the applicant on 10 August 1996. However the evidence of Mr Hughes is quite the opposite of the applicant's as to the events of 10 August 1996.

17. I have head and seen both Mr Yeo and Mr Hughes. I did not form an unfavourable impression of Mr Yeo but at the end of the day I prefer the evidence of Mr Hughes as to the events of 10 August 1996. I shall endeavour to state my reasons in short form.

18. The first reason is that as the applicant gave his evidence-in-chief it appeared to me that his reaction to what happened on 10 August 1996 was not particularly rational. The second reason is that the applicant did not give me any evidence of an animus held by Mr Hughes against him, although he did give such histories to the medical practitioners. The applicant did however tell me that he had observed Mr Hughes over the years at the hospital and he was known to behave in an angry, threatening or intimidating manner.

19. The applicant's failure to give me any evidence about the animus directly is heightened by the fact that Mr Hughes was not cross-examined at all to suggest in any fashion that he had any animus against the applicant whatever. It was never suggested to Mr Hughes that he wanted to get rid of the applicant's services as the applicant had told Dr Chew on 13 August 1996 and as he also told Dr Thiering.

20. My next reason is that it appeared to me that the recollection of Mr Hughes of what happened on 10 August 1996 was much clearer and probable than what the applicant had told me.

21. A further reason is the events of 14 August, to which I shall refer in due course.

22. Mr Hughes' evidence is that after giving Mr Yeo a copy of the complaint, Mr Yeo read it, denied the substance of it and then became quite angry. His evidence is that it was the applicant who brought up the statement that if the allegation was proven he would be sacked. Mr Hughes told me that the applicant said to him that allegation must be taken very seriously for him, Mr Hughes, to have come into the hospital on a Saturday in order to inform the applicant of the allegation.

23. It is to be recalled that the applicant gave a history of that belief to Mr Sawyer; however the applicant did not give me any evidence about it at all. In other words Mr Hughes recollected the matter occurring and raised it even thought it might have been thought to be contrary to his interest to do so. However Mr Hughes pointed out in his evidence that he told the applicant that it was quite normal for him to come into work on Saturdays and it was a mere coincidence and had nothing to do with any view as to the gravity or seriousness or substance of the complaint that had been made against him.

24. Mr Hughes' evidence that the applicant did become quite angry and repeatedly complained about having been a registered nurse for twenty years and that he ought not to have to put up with unwarranted allegations of the type which was now visited upon him.

25. Mr Hughes said that when the applicant raised the prospect of his being dismissed because of the allegation he told the applicant that it all depended on the outcome of the fact finding inquiry to see whether there was any substance to the complaint that had been made. Mr Hughes pointed out that he told the applicant that he was required to investigate every complaint made by a patient or other person against the hospital or a member of the staff and that he was only acting in the normal course. Mr Hughes told me that it was the applicant who raised his voice and became angry with him. He denied his becoming angry with the applicant.

26. In addition to speaking to the psychiatric nurse at Katoomba on 12 August 1996, the applicant also made contact with his trade union and his facsimile transmission to the union was returned by a telephone call made by the union organiser, Mr Brendan Mackaway, at 12.50 pm on 12 August.

27. Mr Mackaway contacted the hospital to ascertain the nature of the meeting to be held on 14 August. It is common ground there are two types of meetings: firstly a fact-finding meeting and secondly, if the facts are substantiated, then a disciplinary meeting. Mr Mackaway told me that it was common for him to attend disciplinary meetings but he said he did not usually attend mere fact-finding meetings. He was told that the meeting on 14 August 1996 was only a fact finding meeting but he nevertheless attended at it because of Mr Yeo's request that he do so.

28. The meeting was attended by Mr Hughes, Dr Snars, the applicant and Mr Mackaway. According to Mr Mackaway's evidence it lasted about a quarter of an hour. Mr Mackaway made notes of the meeting, upon which he was cross-examined. He noted the outcome of the meeting in four points. The first point was that Dr Snars was to formally respond to Mr Kingsley saying that there was found to be no substance to the complaint. The second point was that no documentation about the complaint was to be placed on Mr Yeo's file such that it would not in any way affect the applicant's employment or promotional prospects. The third outcome was a normal one in such circumstances that the applicant was not to treat Mr Kingsley if he was again admitted to the hospital at least without another nurse being present. The fourth outcome was that no further action was to be taken on the complaint.

29. Mr Mackaway told me in the applicant's case the Mr Hughes did not contribute a great deal to the meeting but when he did his comments and conduct were appropriate. The inference to be drawn is that Mr Mackaway did not observe any animus being exercised by Mr Hughes against the applicant. Mr Mackaway also told me that the conduct of Dr Snars, who ran the meeting, was also appropriate. Furthermore Mr Mackaway in cross-examination confirmed that at the meeting Mr Yeo did not raise any complaint about the meeting that had been held between him and Mr Hughes on 10 August. He told me that if a complaint about that had been made, he would have made a record of it.

30. The applicant when cross-examined about the meeting on 14 August was extremely reluctant to make any admission whatever. He asked me to infer that he was not told that the complaint was found to baseless and that he did not know what was to happen to him but expected to receive a formal notification after the meeting, which formal notification he never received. He also refused to concede even the possibility that he had been told that no documentation concerning the complaint would be put on his personal file.

31. That which the cross-examiner put to the applicant was proven in cross-examination by Mr Mackaway. It was not necessary for the cross-examiner then to call much evidence about it from Mr Hughes but Mr Hughes' evidence about the meeting on 14 August is consistent with the admissions made by Mr Mackaway.

32. It is the inconsistency between the applicant and Mr Mackaway as to what happened on 14 August and also a better recollection of both Mr Mackaway and Mr Hughes about what happened on 14 August that also weigh in my mind in accepting as more probable than not the version of Mr Hughes as to what happened on 10 August 1996. I have no doubt that the applicant was told at the meeting that that was the end of the matter and there was nothing for him to concern himself with but the applicant now refuses to admit it.

33. The applicant's case was presented in a further way, that is that the whole process of the applicant's being called into Mr Hughes' office, merely being given a copy of the complaint, being told orally as to when the meeting was to be held and of the meeting's being held so rapidly, of not receiving any formal or written notification of the hearing nor after the meeting receiving any formal written notification of the outcome, was all irregular and indicative of some form of "persecution" of the applicant.

34. In my view such "bush lawyer" quibbles are ex post facto rationalisation. I accept the evidence of Mr Hughes that the way he proceeded on both 10 and 14 August was a normal one, that no formal written notice of such a meeting was usually given, although the complaint, a copy of the complaint is always given in writing but that may only be by making a photocopy of a complaint that had been sent to the hospital.

35. The lack of formality after the meeting is in my view immaterial. The applicant's incapacity had already commenced. However the matter was done quickly and informally in order to dismiss what can be seen an allegation that could never be established. The only direct evidence about whether the derogatory comments were made about Mrs Kingsley could come from the applicant himself and from Mr Michael Kingsley who was being treated at the hospital for schizophrenia and whose evidence would obviously be capable of being rejected on the grounds that Mr Kingsley was deluded from time to time.

36. The applicant's pleadings are these. On 10 August 1996 at the respondent's premises, whilst the applicant was working as a nurse, he was injured by the unreasonable action taken by the employer "and disciplining and interview of the applicant".

37. It is not alleged in these proceeding that the mere fact of an untrue allegation being made about Mr Yeo caused the psychiatric condition, rather the allegation in these proceedings is that it was the effects of the interview between the applicant and Mr Hughes on 10 August 1996 that caused his psychiatric condition and caused the incapacity for the closed period in question.

38. As I have said the pleading does not raise an allegation of what transpired on 14 August 1996 as being a cause for incapacity and even it had been it would not be supportable because the incapacity had already commenced.

39. I accept that the applicant became very angry when told about the complaint. I do not accept that there was any animus on the part of Mr Hughes, that any threat was made to the applicant, that he had been prejudged in any fashion. I accept the substance of the meeting as deposed to by Mr Hughes.

40. S11A of the Workers Compensation Act 1987, as then in force, provided in subs(1) the following:

No compensation is payable under this Act in respect of an injury that is a psychological injury unless;

(a) The employment concerned was a substantial cause of the injury, and

(b) the injury was not wholly or predominantly caused by a reasonable action taken or proposed to be taken by or on behalf of the employer with a respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.

Subs(5) of the same section provides this:

A worker's employment is not to be regarded as a substantial cause of a psychological injury merely because the employment is a real or actual cause of the injury. The term "substantial" is used in this section in a sense of real and important.

The first question is whether the meeting of 10 August 1996 falls within s11A(1)(b). The only way in which it could fall within para(b) would be under the heading of "discipline". The submission made to me by the applicant's counsel did not suggest that the meeting in question fell outside the category of "discipline".

41. An employee is entitled to natural justice. An employee is entitled to be heard if his employment is to be in any way affected, if he is to be disciplined in any way monetarily or otherwise or to have his services terminated. Before discipline can be administered, facts, if disputed, must be established. The applicant when confronted with the complaint, disputed it. It was then agreed to have a meeting to ascertain the facts. If there were no substance to the complaint, no further action could happen. If the facts of the complaint were established as being true, then a further meeting would be held to consider necessary disciplinary action.

42. It appears to me that the meeting of 14 August 1996 was clearly a necessary part of any disciplinary proceedings and informing the applicant of the complaint and the next meeting on 10 August 1996 was also part of the same disciplinary process.

43. The words in s11A(1)(b) which refer to a number of categories should include all that is reasonably necessary or incidental to each of the activities referred to in it. The meeting of 10 August and of 14 August were part, as I have said, of a disciplinary process and therefore in my view fall within the description of the activities of the employer, "with respect to the ....... discipline". Mr Deggens did not submit otherwise.

44. No submission was put to me that the applicant, even if I found against him on other matters, was still entitled to compensation because in s11A(1)(b) the word "worker" is used in the plural rather than the singular.

45. I am aware that Walker J has indicated obiter dictum that the word, being in the plural, must refer only to, for example, transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of a number of workers but not one worker in particular: see Jackson v Work Directions Australia Pty Ltd (14176/96, 1 October 1998); Doyle v Manly Pacific International Hotel (2508/97, 1 October 1998). Support for that can be gleaned from the fact that in the same Act which inserted the then s11A, being Act No. 89 of 1995, the WorkCover Legislation Amendment Act 1995, Sch 1, cl 2, was amended by amending the words "nor employs workers" to "nor employs any worker". That was undoubtedly to overcome the effect of the decision of the Court of Appeal in Monier Ltd v Szabo (1993) 8 NSWCCR 305.

46. The argument of course is that the Court of Appeal having drawn attention to the fact that the Act uses the word "worker" sometimes in the plural and sometimes in the singular, one must, where it is used in the plural, give it a plural meaning, so that where a Sch 1, cl 2 disentitled a contactor who employed "workers", it was still permissible for the contractor to employ one person and obtain compensation.

47. No submission having been made by the applicant that I should so construe s11A(1)(b)it is really not necessary for me to determine it. However I hazard the observation that it appears to me that the draftsman, with his usual grasp of the English language, did not know whether to qualify the word "worker" with the definite article or the indefinite article and sought to resolve his dilemma by using the plural. Such grammatical infelicities are not uncommon in everyday speech and are now not uncommon in formal documents, including statutes, where the plural personal pronoun is often used to obviate using either the masculine singular or the feminine singular pronoun. For example where "person" is referred to, it is nowadays common to refer to that person again in the possessive case with the pronoun "their", rather than to use the grammatically correct "his" or "her". Looking at the whole of s11A, it appears to me that parliamentary intention was that the section applies, even if it affects only one particular worker.

48. Burke J has also adverted to this problem of construction, but did not appear to be enamoured of it: Melder v Ausbowl Pty Ltd (1997) 15 NSWCCR 454, commencing at 460E. My tentative view is to agree with that which fell from Burke J at 461D.

49. The question arises as to whether the action of the employer on 10 August 1996 was reasonable. I have no hesitation in finding that it was. Mr Hughes was duty-bound to investigate every allegation. The days are long gone when what are thought to be unreasonable allegations are dismissed without any investigation. Our modern society requires that every allegation, no matter how fanciful it might be thought to be, be investigated.

50. Mr Yeo may be a victim of this modern attitude but it is not up to me to create or enforce any particular social policies. The fact is that Mr Hughes had to investigate the complaint and he proceeded to do so in the normal manner taking reasonable steps to act promptly in order to resolve the complaint that had been made. His action in my view was quite reasonable. The lack of formality was equally reasonable and indeed one can see in other circumstances where someone would complain of excess formality rather than it being done more informally.

51. Accordingly, although it can be see that the applicant's injury arose in the course of his employment, subject to what I say below, the injury was wholly or predominantly caused by the reasonable action taken or preposed to be taken by or on behalf of the respondent concerning the discipline of the worker.

52. Accordingly the applicant is not entitled to compensation under the Act as amended by Act No. 89 of 1995.

53. The further matter which I should add is this. Townsend v The Commissioner of Police (unreported, McGrath CJ) is authority for the proposition that a misperception by a worker of otherwise innocuous matter, which misperception leads a worker to develop a psychiatric condition, does not constitute injury arising out of or in the course of employment. The applicant misperceived what was occurring in the interview with Mr Hughes on 10 August. It was completely irrational for him, on the evidence that I accept, for him to believe that Mr Hughes had an animus against him, that he had been prejudged in any way or that he was likely to have his services terminated. That irrational behaviour is a misperception of the real events which were going on. In accordance with Townsend v The Commissioner Of Police, the applicant would not succeed in the claim in any event merely because he had failed to establish that he had sustained an injury arising out of or in the course of his employment.

54. I have enquired of the representatives of the parties where there any further reasons for judgment are required. I am told that none is so required.

55. For those reasons I make an award for the respondent.

Mr J P Deggens instructed by R L Whyburn & Associates appeared for the applicant.

Mr T A Gotterson instructed by Hunt & Hunt appeared for the respondent.