CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Owen v State of New South Wales (South Western Sydney Local Health District) [2024] NSWPIC 425	
		
APPLICANT:	Timothy Owen	
		
RESPONDENT:	State of New South Wales (South Western Sydney Local Health District)	
		
Member:	Michael Wright	
		
DATE OF DECISION:	7 August 2024	
		
CATCHWORDS:	WORKERS COMPENSATION - Workers Compensation Act 1987; claim for weekly compensation for psychological injury; section 11A defence; whether respondent’s actions were reasonable; capacity; Held – respondent had not discharged its onus; respondent had not acted reasonably; award for applicant.	
determinations made:	The Commission determines:
1.	The respondent has not discharged its onus of proof in respect of its defence pursuant to 
s 11A that it acted reasonably.
2.	I find that the respondent did not act reasonably in respect of its alleged defence pursuant to s 11A.
3.	I find that, as a result of the injury sustained in the course of his employment with the respondent on 25 June 2020, the applicant has or had:
(a)	no capacity for work from 25 August 2020 to 20 May 2021;
(b)	partial capacity for work from 21 May 2021 to 19 October 2023, at the rate of 
20 hours per week, being a rate on the wages schedule provided of about $790 per week for the highest earning weeks, and
(c)	no capacity for work from 20 October 2023 and continuing.
4.	Respondent to pay the applicant, pursuant to Workers Compensation Act 1987 (all sections in this order refer to this Act), weekly compensation for the periods:
(a)	25 August 2020 to 23 September 2020 - $2,166.54 per week pursuant to s 36(2);
(b)	24 September 2020 to 31 March 2021 - $1,824.46 per week - s 37(1);
(c)	1 April 2021 to 20 May 2021 - $1,832 per week - s 37(1);
(d)	21 May 2021 to 30 September 2021 - $1,384 per week - s 37(2); 
(e)	1 October 2021 to 31 March 2022 - $1,414 per week – s37(2);
(f)	1 April 2022 to 30 September 2022 - $1,570 per week - s 37(2);
(g)	1 October 2022 to 31 March 2023 - $1,650 per week – s 37(2);
(h)	1 April 2023 to 30 September 2023 - $1,750 per week – s 37(2); 
(i)	1 October 2023 to 19 October 2023 - $1,810 per week – s 37(2);
(j)	20 October 2023 to 31 March 2024 - $2,080 per week - s 38, and
(k)	1 April 2024 to date and continuing - $2,120 per week and as indexed – s 38.

STATEMENT OF REASONS
BACKGROUND
2.	In an Application to Resolve a Dispute (Application) Timothy Owen (the applicant) claimed weekly compensation for psychological injury sustained in the course of his employment with the State of New South Wales (South Western Sydney Local Health District) (the respondent) on 25 June 2020.
3.	Although the Application described injury that the applicant “was falsely accused of a crime, arrested in relation to the same and not afforded any opportunity by his employer to explain the accused crime. Prior to his arrest, Mr Owen's employer did not explain the nature of the accusation laid against him, he was simply advised words to the effect of "the police are waiting for you downstairs". Mr Owen was exonerated of all charges in relation to the false accusation. As a result of the employer's actions, Mr Owen sustained severe psychological injury”, the matter was conducted at the hearing that injury sustained as a result of the employer’s actions on 25 June 2020, although there were submissions made in relation to subsequent staff meetings in June 2020 and the termination of his employment in August 2020. This was appropriate as the medical evidence was clear that the applicant sustained injury as a result of the employer’s actions on 25 June 2020.  
4.	The dispute notices issued by the insurer and dated 11 November 2022, 27 September 2023 and 12 April 2024 all disputed a number of issues, which were not pressed at the hearing, with the only matters in dispute being the issue of the reasonableness of the employer’s actions with respect to discipline, relating to its defence pursuant to s 11A of the Workers Compensation Act 1987 (1987 Act), and the applicant’s capacity for work.
5.	There was no dispute that the respondent bore the onus of proof in its s 11A defence.
6.	It should be noted that there was no dispute that as a result of the serious allegations made against the applicant, the applicant was arrested, incarcerated on remand for 39 days, underwent the cancellation of his nursing certification, the termination of his employment following that cancellation, and faced trial in the District Court on criminal charges in October 2022, and was found not guilty on two charges, and one charge was withdrawn.
PROCEDURE BEFORE THE PERSONAL INJURY COMMISSION
7.	I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied.  I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 
8.	At the conciliation/arbitration hearing of this matter on 20 June 2024 the applicant was represented by Mr Carney of counsel, instructed by Ms Celi, solicitor, and the respondent by Mr Loukas of counsel, instructed by Mr Khoshaba, solicitor.
EVIDENCE
Documentary evidence
9.	The following documents were in evidence before the Personal Injury Commission (Commission) and considered in making this determination: 
(a)	Application and attached documents;
(b)	Reply and attached documents;
(c)	Applications to Admit Late Documents (AALD) dated 8 May 2024, 21 June 2024 and 1 July 2024, and attached documents;
(d)	transcript of hearing in the District Court in matter number 2020/00188850 - R v Timothy Richard Owen (the District Court proceedings), included in the AALD dated 1 July 2024;
(e)	Order and results dated 17 October 2022, in the District Court in matter number 2020/00188850 - R v Timothy Richard Owen, and
(f)	respondent’s wages schedule dated 22 May 2024.
Oral evidence
10.	There was no oral evidence.
Evidence 
Timothy Owen
11.	Mr Owen provided statements dated 20 July 2023, 16 January 2024 and 8 May 2024.
12.	In his statement of 20 July 2023, the applicant stated that he was employed on a full time basis as a registered nurse for the respondent for about 23 years from about 1997 until his last day of work with the respondent on 25 June 2020. He stated that he worked for the entire period of his employment with the respondent at the Bankstown Hospital on Ward 2D, a psycho-geriatric ward. He said that he would occasionally assist in other units, but his role on Ward 2D was predominantly involved in caring for elderly patients with psychiatric disorders.
13.	The applicant provided his account of events of the early morning of 25 June 2020 and of the course of events after he left work at 7:00am that day. 
14.	It is not necessary to deal with his account of the events that were the subject of the allegations made by Ms Elnazar, as these were not matters for determination, other than to note that the allegations related to the care provided to a patient, Mr Clarke, and to also note that the allegations can be summarised as an allegation of an assault and an allegation of matters which resulted in the applicant also being charged with attempted murder. I will deal briefly below with the applicant’s statements as to subsequent events.
15.	Mr Owen said he finished his shift at 7am that day, that is 25 June 2020.
16.	He said he received a phone call from Merrin Hannant, operational manager and second in charge of nursing at the hospital, at about 11:30 or 11:45am that day. He said “…Ms Hannant asked me to come in to the Hospital for a meeting with the Director of Nursing... I recall that I was told that the meeting was at 4.00pm in relation to "an incident involving an elderly patient who was under my care”…
17.	The applicant said he arrived at Ms Campbell’s office at about 4:00pm. He stated that 
“as soon as I took a seat in front of her desk, [Linda Campbell] stated ‘There have been allegations made against you that are so serious, we have had no choice but to call the police’.
…I recall that didn't answer her straight away because was so shocked by what she had said. When I regained my composure, I said words to the effect of: ‘Do I get a chance to defend myself or say anything on my behalf about what happened? I haven't had a chance to say anything in my defence. Aren't you interested to hear my side of the story? I thought was coming to speak to you’...
… [Linda Campbell] answered with words to the effect of ‘No, it is now in the hands of the police, you'll have to speak to them’. She informed me that the Police were already downstairs in the ward. She then phoned down to inform the Police that I was in her office.
…I didn't know what to say or do after that, so just sat and waited. LC moved toward her computer screen and said ‘I have some work to do here. Do you mind?’
 I shook my head and said something like ‘Go ahead’, and she then began typing on her computer keyboard.
… The Police arrived shortly afterwards and arrested me, cuffing me and taking me to the Police Station.
[Linda Campbell] never described the allegations that were made against me. I still don't know why she did not tell me why I was being arrested, or why she did not give me the opportunity to explain the situation. My whole life has been ruined because of this…”
18.	Mr Owen said that he did not work until June 2021. He stated:
“…I feel like cannot trust anyone anymore. The only people that I can put my trust in are my family and close friends. I feel like I could never trust an employer or co-workers again. do not trust the police or other government authorities. 
I feel so betrayed, and cannot believe that gave 23 of my years to a workplace, only to be thrown to the side over false allegations. 
I feel very anxious a lot of the time. 
I tend to forget things. often go out to go somewhere and forget my phone, or my keys. look around for things and find it hard to find things. I get into a state of panic very frequently. 83. My panic states become so bad, that they turn into panic attacks. I have required hospital treatment for those panic attacks. 
I am currently working on a casual basis. I am employed a in a factory as a packer. The supervisor of the factory is a friend of Hong's, so I was able to get a job through this connection. The company is called 'Filter Care'. I went back to work because I needed to earn money to support my family. 
I began working at Filter Care in or around June 2021. I usually work about 15 to 20 hours per week, earning about $560.00 per week. 
My current job is quite physical and am standing up all the time. The job is what it is. There are no prospects to move forward, or to progress in this job. I feel as though I have now lost my chance to have a progressive career. I put over 20 years of my life into my nursing career, only to have all that progression and potential ripped away from me…”
19.	In his statement dated 16 January 2024, the applicant provided further information as to his discussions with Ms Hannant and Ms Campbell of 25 June 2020
“…I was not advised by Ms. Merrin Hannant, or by anyone else, to bring a support person with me to the meeting that she had arranged between me and Ms. Linda Campbell. 
…I was supposed to work a shift that evening at 9.30pm. 
 …I was only told that the meeting was at 4:00pm with Ms. Campbell and was in relation to ‘an incident involving an elderly patient who was under your care, Mr. Robert Clarke’. 
…I recall that Ms. Hannant told me that this meeting was in relation to Robert. 
…However, she did not tell me to prepare anything for that meeting and just told me to come in to speak with Ms. Campbell. 
…Ms Hennant did not tell me that I would not be working my shift that evening. vii. I did not know that anything serious would come from that meeting…”
20.	He said that he ceased his job with Filter Care on about 29 September 2023. He said that 
“shortly after receiving the insurers declinature dated 27 September 2023, I experienced an extreme flare up in my symptoms. I was experiencing aggressive heart palpitations, and very frequent panic attacks. I presented to my GP, Dr Albert Nguyen.. I continue to suffer from those symptoms. However, they are more manageable than they were a couple of months ago. That said, I still do not feel as though I can return to my work…”
21.	In his statement dated 8 May 2024, the applicant outlined his subsequent incarceration on remand, treatment and the criminal proceedings in the District Court.
Linda Campbell
22.	Ms Linda Campbell provided statements dated 22 July 2020, which was unsigned but adopted in her signed statement dated 10 November 2022. There was no objection from the applicant in this regard. She was at the relevant time the Director of Nursing and Midwifery Services at Bankstown Lidcombe Hospital.
23.	Ms Campbell also gave evidence in the District Court proceedings, as recorded in the transcript referred to above.
24.	In her statement dated 22 July 2020, Ms Campbell outlined her discussions, including with Ms Elnazar, and the steps that she took in that regard.
25.	She stated that 
“around 11.45am on Thursday the 25h of June, 2020 I was in a meeting at Bankstown Hospital and Merrin HANNANT came into to talk to me. Merrin said that there had been an incident in 2D where a Staff member had allegedly assaulted a patient.
Merrin went down to the ward to talk to the Staff member and I asked her to ring me when she had the story SO could see how serious it was.
I let the General Manager, Peter ROPHAIL know that there had been an incident but I wasn't sure of the details yet. I waited for Merrin to get back to me.
About an hour later I spoke to Merrin on the phone and she told me that they were still getting information from a staff member. Merrin told me that the Staff member was an enrolled nurse and she was quiet distressed and it was hard to get clarity from her.
About half an hour later in between a break with my meetings I went down to Ward 2D with Merrin and into the Nursing Unit Manager's Office (NUM). I saw Shiraz ELNAZER and Meilin PESCAN who was their acting NUM in the office…
… I explained the process to Shiraz and how had to report it to the police…I told her that I would inform the GM. After spoke to the GM, Peter ROPHAIL I called the police to report what had happened.
The police arrived a short time later and told them what had happened. After I spoke to the police I escorted the police down to bed 13C in ward 2D to see Mr CLARKE. I left the ward and came back up to my office.
About 4.00pm, Tim OWEN arrived at my office. I invited Tim in and I said, ‘Tim you are aware that an incident occurred last night in 2D. There's an allegation that you assaulted a patient and because of the seriousness of the allegation I have notified the police and they are now on site. I need to let them know that you are here and I they will be coming up to speak to you’. Tim said, ‘I thought I was meeting with you. I feel like I have been judged before I have been heard. You haven't listened to my side of the story. I would have thought that you would want a to’. I said, ‘It's a police matter now I can't have a conversation with you now. I have to let the police know that you have arrived. Are you happy to wait in the office it shouldn't be long and they will be up’? Tim sat down in the chair and stared out the window without saying anything.
I said, ‘I will ring them now’. I walked outside and told the Secretary that I won't need security. I also let Merrin know that Tim was here.
A couple of minutes later the police came back into my office and they spoke to Tim and Tim left the hospital with police.
About 10.30am on Saturday the 27th of June, 2020 I came into the hospital to check on the staff in ward 2D and have a conversation with them to make sure they were ok. Whilst there I went into speak to Mr CLARKE in bed 13C. I wanted to let him know that his name was going to be changed for privacy reasons. As went in I said, ‘Good morning Mr CLARKE how are you today?’ Mr CLARKE was curled up on his left side and I was standing on the right side of the bed. I was leaning over him so he could see me. He turned his head and he said, ‘You fuckin whore’. I said, ‘What's the matter?’ He said, ‘I'm in pain you fuckin whore’ I said, ‘Would you like me to get something for your pain?’ Mr CLARKE said, ‘Where's the other fuckin whore?’ I said, ‘Who’. Mr CLARKE said, ‘Fuckin whore the one that tried to kill me and put the pillow over my face’. I was really shocked after he said this as I didn't think he would remember the incident due to his cognitive state. I was really surprised and I didn't say anything and thought that I better chase up his pain medication…”
26.	Ms Campbell also provided a statement dated 10 November 2022.
Benjamin Kalmar
27.	Benjamin Kalmar provided a statement dated 10 November 2022. He stated that the applicant had commenced employment with the respondent on 7 May 1997. He attached copies of a “File Note – Statement from EN Shiraz Elnazer” which was not signed but referred to a meeting at about 10:40am on 25 June 2020. It is not necessary to consider the contents of this document, although there is further reference in these reasons with respect to matters referred to below.
28.	Mr Kalmar also attached copies of NSW Health Policy Directives PD2018_031 Managing Misconduct and PD2018_032 Managing Complaints and Concerns About Clinicians, which will be discussed briefly below in relation to submissions.
29.	The Managing Complaints Policy provided for “Mandatory Requirements” which relevantly included
“The protection of an organisation's patients and clients, including the children for whom it is responsible, is to be the primary consideration when managing and making decisions related to potential and substantiated misconduct….
Potential misconduct must be treated seriously and an initial review of any apparent or potential misconduct must take place without delay…
Where an initial review indicates there is a credible allegation or possibility of misconduct, or that the matter involves a child-related allegation, charge or conviction, further action to pursue the matter in accordance with this policy should take place in a timely manner consistent with the requirements of procedural fairness…
Any ongoing risks related to potential or substantiated misconduct must be identified, assessed, managed, and regularly reviewed throughout the management process, including any requirements arising from the Service Check Register policy…
A person who is subject of a misconduct process must be given adequate opportunity to respond to any allegations, adverse findings, and proposed disciplinary action, prior to any final decision being made…
A person who is subject of a misconduct process must be afforded the right to a support person being present at any interviews. Other support may also need to be offered to all affected persons, where appropriate…
Any findings made must be based on relevant available information that is established 'on the balance of probabilities'…
Any required internal or external notifications concerning potential or substantiated misconduct (such as to registration authorities) must be made without delay in accordance with the relevant statutory and / or policy provisions…”
30.	The Managing Complaints Policy also provided for the “Initial Review and Response”, and the purpose of an initial review was outlined to include:
“There must be an initial review of any allegation or concern about potential misconduct without delay (Information Sheet 4). An initial review seeks to assess all readily available information that may assist in clarifying an allegation or concern in order to:
Identify any immediate risks to the safety and welfare of patients and/or staff (including any complainant) that need to be managed immediately
Determine, as far as practical, the credibility, nature and seriousness of the matter…
Identify any immediate internal and external notification requirements (Information Sheet 6), including the NSW Health Service Check Register. All allegations that involve possible criminal conduct must be reported to the NSW Police.”
31.	The above “Initial Review and Response” also provided for “Determining Further Action” which included the following:
“…Where an initial review indicates that an allegation is credible or there is an indication of apparent misconduct, or that the matter involves a child-related allegation, charge or conviction, appropriate action must be taken to address the matter in accordance with this Policy Directive (and, as appropriate, the current NSW Health policy on child-related allegations, charges and convictions).
Such action must be taken irrespective of whether the matter is being investigated by an external regulatory or investigative body (such as the Police and/or Community Services), and irrespective of the outcome of any such external proceeding. However, consultation with any external regulatory or investigative bodies must take place to ensure that any external investigations are not compromised.
In circumstances involving serious criminal allegations or child-related allegations, discussions should occur with NSW Police and/or Community Services at an early stage, which may result in a decision to defer any investigation by the NSW Health organisation pending the resolution of the criminal or child protection proceedings. Where this occurs the organisation must still undertake a risk assessment (see Section 3) to determine whether any immediate action is required to manage risks. This will normally involve a consideration of suspension of the staff member from duty or other available strategies in accordance with Section 3 and 4 of this document…
An investigation into an allegation or apparent incident of misconduct should only occur where there is uncertainty about the relevant facts (Information Sheet 4). Where the facts are clear and uncontested, findings arising from the initial review can at that stage be provided to the decision-maker, who must either accept or reject them, and then decide what action should be taken in response to the findings. A staff member subject to an adverse finding in such circumstances must be provided with an opportunity to respond to such a finding, as well as to any proposed disciplinary action (refer to Section 7.5.2 for further information)…”
32.	The above “Initial Review and Response” also provided for “Advising the Staff Member”, as follows:
“A staff member who is the subject of an initial review regarding potential misconduct should be informed that an issue has been raised about them as soon as credible details indicating potential misconduct have been identified, and it is deemed safe and appropriate to do so (Information Sheet 7). Any verbal advice should be confirmed in writing.”
33.	The Managing Complaints Policy also provided for “Investigation”. I was not taken to this area in submissions, presumably because the investigation stage takes place after the initial review stage. The policy referred to an attached flowchart and suggested timelines, unfortunately neither of which were attached.
34.	In any event, for current purposes, in my view policy document contemplates and accepts: 
(a)	the concept of procedural fairness;
(b)	the process outlined is concurrent with any external investigation or other process, although at the relevant stages, a decision may be made to defer pending the progress or outcome off the external process.
35.	I was not taken in submissions to the other policy document attached to Mr Kalmar’s statement.
Transcript of District Court proceedings – Ms Campbell, Ms Hannant, Ms Du Pecsen, 
Ms McDiarmid and Detective Bennett
36.	The above persons gave evidence in the District Court proceedings. I will refer to their evidence below briefly in my reasons.
37.	Detective Katie Bennett gave evidence, including relevantly the following:
“Q. When you got there did you speak to director of nursing Linda Campbell and acting operational nurse manager Merrin Hannant? 
A. Yes, I did. 
Q. And were you told that Ms Elnazer had told them about an incident that allegedly involved Mr Owen and a patient? 
A. Yes. 
Q. From there did you go to ward 2D, the psychiatric geriatric ward? 
A. Yes. 
Q. And did you speak with the acting nursing manager Meilin Du Pecsen? 
A. Yes, I did. 
Q. Were you provided with a recording of a conversation between Ms Hannant and Ms Elnazer? 
A. I was. 
Q. And you understand the jury's heard the recording during the trial with the relevant parts removed.
A. Yes, I do.
Q. After that were you taken to room 13 and to the patient Robert Clarke in bed 13C?
A. Yes.
…
Q. Did you have a conversation with Mr Clarke? 
A. Yes, I did. 
Q. Did you record that conversation as part of your investigation? 
A. I did.
Q. Have you subsequently received advice from a expert in geriatric medicine? 
A. Yes. 
Q. And is it your understanding that Mr Clarke suffered from a range of cognitive impairments? 
A. Yes. 
Q. And dementia? 
A. Yes. 
Q. And is it the case that you've been informed that anything that he has said is not reliable? 
A. Yes, I have…”
Relevant correspondence
38.	The following documents were relevantly provided:
(a)	letter of Amanda Larkin, of the respondent dated 13 August 2020, terminating the applicant’s employment for “frustration of contract”;
(b)	letter of the applicant to Ms Larkin, undated, lodging a complaint against 
Ms Campbell;
(c)	email of the respondent – Bankstown General Managers Unit – to the applicant dated 15 May 2023, responding to the applicant’s complaint and advising him that Ms Kate Hall Senior Workplace Investigations Officer of the respondent had been appointed to conduct the initial review;
(d)	email from Ms Jenny Dinh dated 11 June 2023, containing a copy of an email from Kate Hall to Jenny Dinh dated 9 June in which Ms Hall referred to a conversation between Ms Hall and Ms Dinh on 7 June 2023. Ms Hall outlined details of that conversation, including that in about June 2020, after Ms Dinh had found out that the applicant had been arrested, 
“…around lunchtime, the NUM at the time asked all the staff from 2D and those who worked closely with 2D E.G the dietician, the doctors etc... to meet with Ms Linda Campbell (Director of Nursing and Midwifery) in the area in out the front of room 1 - 4 of Ward 2D (located on level 2 of Bankstown Hospital). There was no notice or formal invite, Ms Campbell had just come down to level 2 to talk with you all as a group; you were present for this meeting. During the meeting, Ms Campbell told the group ‘You are not to collect money for Timothy Owen. You are not to talk about Timothy Owen or discuss what may have occurred. You are not to talk to patients or other people attending the hospital about Timothy Owen.’ Ms Campbell did not explain to you why you were not able to do any of these things and no-one asked questions - you were too scared to ask why.
…
Ms Campbell came down to the ward another couple of times in the 2 -3 weeks after finding out about Mr Owens; you do not recall exactly how many times or specific dates / times. These meeting occurred in the same way (request by NUM) and in the same location (in front of room 1 -4). The General Manager also attended at least one of these meetings. During the meeting/s Ms Campbell repeated that ‘You are not to talk about Timothy Owen or discuss what may have occurred. You are not to talk to patients or other people attending the hospital about Timothy Owen.’ However, she also said "If you do this, you will be in trouble and will have to come up and see me on level 4." Ms Campbell did not explain to you why you were not able to do any of these things and no-one asked questions.
During one of the meetings in June / July 2020 where Ms Campbell came down to level 2 to talk to the staff as a group, she also stated ‘Timothy Owen has done the wrong thing and is guilty. That is why the police handcuffed him out the front. That is why he is now in gaol.’ The group consisted of all 2D staff on at the time. It was not an organised meeting, you (and the other staff) were just called into the area out the front of room 1 - 4 to listen to what Ms Campbell had to say”, and 
(e)	in a letter of Mr Peter Rophail of the respondent to the applicant dated 
15 June 2023, Mr Rophail advised, among other matters:
	“I am writing to you in relation to the complaint you made regarding Ms Campbell and to inform you that I have received the initial review report.
	…
	In relation to your concern surrounding comments by Ms Campbell about you to staff, namely Ms Jenny Dinh, these concerns are deemed capable of being dealt with as a performance matter and have been managed as such. 
	In relation to your concern surrounding comments made by Ms Campbell to 
Ms Katrina Stott. The version of events provided by Ms Stott is not consistent with your complaint details. As such, the complaint was deemed unfounded…”
Dr Canaris 
39.	Dr Canaris, psychiatrist, provided reports to the applicant’s solicitors dated 3 August 2023 and 24 May 2024.
40.	In his report dated 3 August 2023, Dr Canaris took a consistent history and diagnosed of persistent depressive disorder (dysthymia) with a persisting major depressive episode and anxious distress. He was of the opinion:
“His chronic depressive illness remains an ongoing presence in his life. While he has returned to work, he is not up to working full-time and certainly is not able to work as a nurse even if he were to seek reregistration…
He is not incapacitated for work but his present part-time casual employment in a field of endeavour requiring considerably less skill seems to be about his limit.
He is not able to work as a nurse even if the option were open to him. The hospital setting and similar healthcare settings would be associated with high anxiety for him especially because of his difficulty with trust. Moreover, he lacks the requisite energy and capacity for concentration.”
41.	He was of the opinion that the incapacity is entirely the result of the subject injury.
42.	In his report dated 24 May 2024, Dr Canaris noted that “you have informed me that your client stopped working in his part-time casual employment and that his GP is certifying him as unfit to work”. Dr Canaris was not able to examine the applicant for this report.
43.	Dr Canaris stated that:
“However, it does not surprise me that he has stopped working. When I saw him in June and August 2023, he was struggling with the demands of his employment. He found it very difficult to be around other workers because of his shame over his earlier experiences. He also had major struggles with sleep, fatigue, and hence concentration, persistence, and pace and had lost all confidence having become socially withdrawn. Given this profile of functioning, I came away with the distinct impression that his capacity to persevere in his employment was likely to be tenuous at best.”
44.	In my view the latter opinion of Dr Canaris was not inconsistent with his earlier report, for the reasons given by Dr Canaris, which I accept. Dr Canaris, in my opinion, has provided a persuasive opinion as to capacity for work for all relevant periods.
Dr Clarke
45.	Dr Clarke, psychiatrist, provided a report to the respondent’s solicitors dated 
22 December 2023.
46.	Dr Clarke took a consistent history and diagnosed a persistent depressive disorder with anxious distress. He noted the applicant reported becoming worse as a result as a result of claim being denied and ceased his employment of two years duration due to the increased distress resulting from received this notification. 
47.	Dr Clarke stated that “it is not my opinion that there is a current or past psychiatric incapacity for employment”.
48.	Dr Clarke did not explain her reasons for her opinion as to the applicant’s capacity for work. I am unable to accept her opinion and I prefer the opinion of Dr Canaris, which in my view provided a cogent explanation of the applicant’s incapacity for work.
Dr Dilati
49.	Dr Dilati was the treating psychologist of the applicant. He noted part time employment and some improvement of symptoms at that time, but did not provide an opinion as to capacity for work.
Dr Nguyen
50.	Dr Nguyen is the applicant’s treating general practitioner (GP). He provided a report to the applicant’s solicitors dated 14 June 2024. He has been the applicant’s GP since 2008. He diagnosed:
(a)	post-traumatic stress disorder;
(b)	depression, and
(c)	anxiety.
51.	He was of the opinion in relation to capacity for work that:
“Mr. Owen has had no capacity for work as a nurse for the entire period from the date of the incident (25/06/2020) until the present date. I note that he did have some capacity for manual labour work for approximately 2 years.
a) 25 June 2020 to 2 August 2020 (period of incarceration): total incapacity for any work due to incarceration 
b) 3 August 2020 to 20 May 2021: total incapacity for any work due to psychological injury sustained from the incident on 25/06/2020 and its consequences. 
c) 21 May 2021 to 19 October 2023 (period in which our client participated in casual/part time employment): Complete incapacity for any health-related work, but partial capacity for manual labour outside the health sector. 
d) 20 October 2023 to date: total incapacity for any work”
52.	He was of the opinion that total incapacity continues.
53.	In my view, the opinion of Dr Nguyen is consistent with the opinion of Dr Canaris, which I have accepted. 
Reasons
54.	It should be noted that injury and causation were not in dispute. That is, as the result of action taken by the respondent, the applicant suffered psychological injury.
55.	This matter was conducted at the hearing on the basis that the veracity or otherwise of the complaint acted upon by the respondent was not the subject of submissions by either party. The fact that the complaint was made was not in dispute. The fact that the complaint was a serious criminal allegation or allegations was not in dispute. The respondent’s belief or conclusion that the allegations against the applicant should be reported to the police was not in dispute.
56.	The respondent’s submissions dealt with the reasonableness of its actions in relation to discipline, as well as capacity for work.
57.	The applicant’s statements were not challenged or disputed by the respondent as to the circumstances surrounding his meeting with Ms Campbell. The applicant’s credit was not challenged in this regard. I accept the applicant’s evidence as to the events from about 
11:45am leading to his arrest. I find relevantly that at about 11:45am on 25 June 2020 the applicant received a telephone call from Ms Hannant in which he was requested to attend 
Ms Campbell at her office at 4:00pm for a meeting relating to an incident involving an elderly patient under the applicant’s care. There was no dispute that Ms Hannant and Ms Campbell declined to describe the allegations made against the applicant, other than a general description of an incident in relation to Mr Clarke, and that they declined to enquire with or engage with the applicant as to his response or explanation. The applicant said he did not think anything serious would come from the meeting. He said he had been due to commence work at 9:30pm that evening.
58.	As for the evidence relating to Ms Dinh, in my view it is important to consider that it was made as a record of a conversation not between an unrelated third party, nor a person with any seeming conflict with the respondent, but was rather a correspondence produced by 
Ms Hall, who was not only an officer of the respondent, she was also appointed by the respondent to investigate matters raised in complaint by the applicant. In my view the respondent should be regarded as being aware of the contents of the correspondence from Ms Hall to Ms Dinh, because Ms Hall was the investigating officer appointed by the respondent who produced that correspondence. 
59.	Further, in correspondence from the General Manager of the respondent to the applicant dated 15 June 2023 following Ms Hall’s initial review or investigation, Ms Dinh was named and it was indicated that the applicant’s “concerns” were to be managed as a “performance matter”. In my view, the respondent has been aware of the information provided by Ms Dinh since May 2023 and has considered it. These documents all formed part of the Application. There was no evidence before me to contradict the information provided by Ms Dinh, and there was no suggestion in the correspondence of 15 June 2023 that her information was disputed.
60.	It is in that context that the respondent’s submissions, that Ms Dinh had not provided a signed statement and that her evidence was given almost three years after the events in question, and was hence not reliable, should be considered. It does not in my view strain credulity that Ms Dinh should recall the events and words that she has described, in circumstances where a professional nursing colleague, who had worked on the same ward for more than 20 years, had been arrested in the workplace, although not in the ward, and had been charged with attempted murder. I do not accept the respondent’s submissions in this regard. In my view Ms Dinh’s evidence is probative and cogent as to the reasonableness of the respondent’s actions and should be given weight. 
61.	It might be observed that the evidence of Ms Hall as to the information provided by Ms Dinh relates to matters that took place after the arrest of the applicant. However, that evidence is supportive of the applicant’s uncontested words at the time of his meeting with Ms Campbell that he believed that he had not been allowed to be heard and that he had already been judged. That evidence is also of some assistance in considering the timing and conduct of Ms Campbell’s response, and hence the respondent’s response, to the initial allegations by Ms Elnazer.
62.	In relation to Ms Campbell, the applicant challenged the reasonableness of the approach taken by her, partly on the evidence provided by Ms Dinh and alternatively or partly as to steps that it was submitted could have been taken by her or by the respondent but were not. Her evidence was not challenged as to what she said she did. 
63.	Material to the evidence of a timeline and the events on that timeline were the evidence of: 
(a)	Ms Campbell in her statements and in the District Court proceedings; 
(b)	Ms Du Pecsen, Ms Hannant and Detective Katie Bennett in the District Court proceedings, and
(c)	the evidence of the applicant. 
64.	On a preliminary point, the transcript of the District Court proceedings was admitted into evidence without objection or qualification by either party. Indeed, the transcript was lodged on behalf of the respondent, and in submissions I was invited by the respondent, appropriately in my view, to consider the evidence given by Ms Campbell. Even if I am said to be mistaken on this understanding, or that the respondent meant only a qualified referral to only part of that evidence, then I was not taken to any point of contention nor to any authority in this regard. In my view, I am supported by ss 42 and 43 of the Personal Injury Commission Act 2020 (the PIC Act), and by r 73 of the Personal Injury Commission Rules 2021 (the PIC Rules). In my opinion the evidence contained within the transcript is logical and probative, and relevant, where I have indicated. 
65.	Further, in my view I am supported by the decision in Spedding v State of New South Wales (Spedding). That matter concerned the admission of evidence in court proceedings to which applied the Uniform Civil Procedure Rules (UCPR), which of course do not apply to proceedings in the Commission. This evidence included the admission of documents including transcripts. As well as consideration being given to the UCPR, Spedding also considered application of an implied undertaking as outlined in Harman v Secretary of State for the Home Department, which was later considered in Hearne v Street.  The latter decision referred with approval to a list of matters in the relevant provision of the Supreme Court Rules, including documents that record what was said or done in open court, as they apply to “strangers to litigation”. In the current case the applicant was a party to the District Court proceedings, but the respondent was not. Spedding then listed relevant considerations in which it is arguable that the Harman restriction applies, not least of which is the contribution that the document might make to achieving justice in the second proceedings, referring with approval to Springfield Nominees Pty Ltd v Bridgelands Securities Ltd. Although the operation of ss 42 and 43 of the PIC Act may preclude the operation of the Harman restriction, nevertheless the principles outlined in Spedding are of some guidance.
66.	From the transcript evidence of the District Court proceedings, and from statements provided by Ms Campbell, I find the following in relation to the events on 25 June 2020 when and after Ms Elnazer made her report:
(a)	Ms Du Pecsen was at the relevant time the nursing unit manager of the psychiatric geriatric ward 2D of the Bankstown Hospital of the respondent. Ms Du Pecsen had been acting in that role since 15 June 2020, prior to which she worked in the stroke unit of the Bankstown Hospital for six years;
(b)	at about 9:25am Ms Du Pecsen returned to her office and saw Ms Elnazer speaking with “Shereen”, following which Ms Du Pecsen went to another meeting;
(c)	at about 10:00am Ms Du Pecsen received a text message from Shereen asking to speak urgently after Ms Du Pecsen’s meeting;
(d)	at about 10:20am Ms Du Pecsen returned to her office where she spoke with 
Ms Elnazer and Shereen. Ms Du Pecsen said that was informed by Ms Elnazar of what she said had happened involving the applicant and a patient;
(e)	Ms Du Pecsen “straight way” contacted Ms Hannant, the operational nursing unit manager. While Ms Du Pecsen waited for Ms Hannant to arrive, she asked 
Ms Elnazar further about what happened in the incident, and Ms Elnazar explained;
(f)	at the relevant time, Ms Hannant was acting operational nursing manager at Bankstown Hospital. She had been acting in that role since January 2020;
(g)	at about 10:25am Ms Hannant received a text message from Ms Du Pecsen that there had been an incident involving Ms Elnazar. Ms Hannant said then obtained some brief information over the phone from Ms Du Pecsen. Ms Du Pecsen said that Ms Hannant came to her office “straight away”;
(h)	Ms Hannant said she then contacted Ms Campbell about that incident;
(i)	Ms Hannant said she then went to the nursing unit manager’s office on Ward 2D, where she met Ms Elnazar, Ms Du Pecsen and another nurse, Shereen Gacayan. Ms Hannant said she asked Ms Gacayan to leave the room;
(j)	Ms Hannant commenced speaking with Ms Elnazar, and as she was speaking with Ms Elnazar, Ms Hannant decided to commence an audio recording of what Ms Elnazar was saying. Ms Du Pecsen said that the audio recording was done on her phone. I note that Ms Hannant was asked to assume by the prosecution in the District Court proceedings that the jury had heard the audio recording that she had made;
(k)	Ms Hannant typed “the account” of what Ms Elnazar had said to her, which was “effectively consistent” with the recording. Ms Hannant asked Ms Elnazar to review the document, gave her the opportunity to amend anything and then she asked Ms Elnazar to sign that document, which Ms Hannant described as a “file note”;
(l)	at 11:45am on 25 June 2020 Ms Campbell was in a meeting when she was informed by Ms Hannant that an incident had been reported. Ms Campbell understood that Ms Hannant was going to go and speak with a staff member about what had occurred;
(m)	at some time between about 11:30am and 11:45am the applicant was contacted by Ms Hannant and was requested to attend a meeting with Ms Campbell at 4:00pm on that day. The applicant also stated that he had finished his night shift at 7:00am that morning and he went home. He said he had been asked by 
Ms Hannant to come into the hospital for a meeting with Ms Campbell at 4:00pm that day. I infer that the applicant was not at work and was not on the premises of the respondent, and was likely at home, from 7:00am until he attended the office of Ms Campbell at 4:00pm;
(n)	at some point between 11:45am and 12:15pm or shortly afterwards Ms Campbell contacted the general manager and informed him that “there had been an incident…where a staff member had allegedly assaulted a patient”;
(o)	at about 12:15pm or shortly afterwards on 25 June 2020, Ms Campbell attended the Ward 2D Nursing Unit Manager’s office where she spoke to Ms Elnazer, who provided details of her allegations in relation to matters said to have happened between about 12:30am to about 3.30am – 4:45am that morning. Present at that meeting were Ms Elnazar, Meilin Du Pecsen and Merrin Hannant. The clinical nurse educator, Ms Shareen Gagaya, apparently was also present but left the room before or when Ms Campbell entered. Ms Campbell said that Merrin and Meilin had taken notes of “a previous conversation”. 
(p)	Ms Hannant said a decision was made to contact the police at the time 
Ms Campbell attended the office, and Ms Hannant contacted the applicant by telephone. Ms Hannant said that she informed the applicant that there had been an incident alleged between him and a patient and he was to attend 
Ms Campbell’s office in the afternoon. She said that the applicant asked what it was about, and Ms Hannant said that “It’s an incident, but I can’t tell you anything about it now”;
(q)	after speaking with Ms Elnazar, Ms Campbell spoke with the general manager and informed him “of what had happened”. Ms Campbell did not say when she spoke to him;
(r)	at some point after contacting the general manager, Ms Campbell reported to the police “what had happened”. She did not say when, although it appears that she reported to the police shortly after speaking with the general manager;
(s)	“A short time after” she reported the matter, the police arrived and Ms Campbell “told them what had happened”;
(t)	at about 2:40pm Detective Katie Bennett and Senior Constable Susanne Cooper, attended the Bankstown Hospital, where they met Ms Campbell and Ms Hannant, who told the police about what was said by Ms Elnazar;
(u)	Ms Campbell then took the police to Ward 2C to speak with the patient. She returned to her office;
(v)	Ms Hannant said that when she met the police officers, including Detective Bennett, she handed them a copy of the signed notes that she had typed, as well as informing the police and arranging to provide them with a copy of the recording of the conversation;
(w)	thereafter, the police officers attended Ward 2D and spoke with Ms Du Pecsen, and she provided them with a recording of the conversation between Ms Elnazar and Ms Hannant. The police were then taken to speak with the patient, 
Mr Clarke. I will deal with submissions in relation to Mr Clarke below;
(x)	at about 4:00pm the applicant attended the office of Ms Campbell. She informed the applicant that there was an allegation that he had assaulted a patient and that she would tell the police that he was in her office and they would come to speak to him, and
(y)	“A couple of minutes later…”, the police attended Ms Campbell‘s office and arrested the applicant.
67.	In cross-examination, Ms Hannant provided the following evidence:
“…Q. Ms Hannant, you indicated that you spoke to Meilin and Sharaz and was present when Linda spoke to Sharaz about the process of the complaint. 
A. Yep. 
Q. There's a reference to escalating an issue. What does that mean? 
A. Correct. So when something unusual or untoward happens within a healthcare facility with staff, there's always a chain of command and depending on the seriousness of the incident that occurs, it depends on how far up the chain of command that information needs to go. 
Q. And an incident such as this needs to go how far up the chain of command? 
A. To myself, the director of nursing, the general manager, and then it would be the executive director of nursing and the chief executive due to the seriousness of the alleged complaint…”
68.	However, the evidence before me did not explain the following matters:
(a)	the contents of Ms Campbell’s conversations with the General Manager between 11:45am and 4:00pm. Ms Campbell outlined in her statement of 
10 November 2022 her actions in reporting to senior management after the applicant had been arrested, but her account of her discussions with senior management before the applicant’s arrest were notably lacking in detail;
(b)	why Ms Du Pecsen and Ms Hannant saw fit to audio record their interview with Ms Elnazar, type a written document and ask her to sign a printed record of that interview. This is a relevant consideration in respect of the urgency of the matter being reported to the police, as asserted by the respondent, and the need for the police to conduct their own investigation;
(c)	Ms Campbell in cross examination in the District Court said that she had never seen a copy of the statement of Ms Elnazar nor the transcript. Although 
Ms Campbell appeared to erroneously refer to “Shareen” “writing up” that document, and the question put to her perhaps somewhat incorrectly referred to the statement being provided to Ms Campbell by Ms Du Pecsen, in my view the implication was that Ms Campbell stated that she had not seen the document referred to by Ms Hannant in her evidence. There was no explanation in the evidence before me as to why Ms Campbell was not given that document, nor whether she was aware of its existence before she met with the applicant at 4:00pm;
(d)	what was said between Ms Hannant and Ms Campbell, or between Ms Hannant and Ms Du Pecsen, about whether or not there were discussions, and if so their contents, as to whether or not the applicant should be interviewed or whether he should be informed of the allegations made against him. I infer there was at least one discussion, because Ms Hannant said that a decision was made to report the matter to the police, apparently before or at the same time as Ms Hannant informed the applicant of the meeting at 4:00pm with Ms Campbell. Ms Hannant also said “I can’t tell you anything about it now” when she spoke to the applicant. Ms Campbell said a similar thing when spoke to the applicant: “It’s a matter for the police now. I can’t have a conversation with you”. This similar approach also indicates discussion in some form had taken place. Even if the contrary view of this evidence is to be preferred, that is there was no explanation because there was no relevant discussion as to the approach to be be taken with respect to informing the applicant of the nature of the allegations and/or interviewing the applicant, then this is also telling against the respondent in considering whether its action was reasonable in the relevant sense;
(e)	there was no evidence or explanation before me of whether or not Ms Hannant or Ms Campbell were aware of, or applied, the relevant policies as outlined in the statement of Mr Kalmar, other than the generalised reference by Ms Campbell to explaining “the process” to Ms Elnazar, and the description of “escalation” and the “chain of command” by Ms Hannant. There was no evidence before me of their understanding or application of the matters that they considered in not informing the applicant of the precise nature or of the details of the allegations made against him, nor of the reason or reasons why this was not done, nor as to being afforded the opportunity of having a support person in attendance at the meeting with Ms Campbell. This is not a trivial point. Whilst it may be said with justification that the applicant’s liberty and livelihood were in any event jeopardised, it is the respondent’s case, and onus of proof, that it acted reasonably;
(f)	further, there is no evidence before me that Ms Hannant or Ms Campbell explained to the applicant “the process”, other than a simple statement that the matter had been reported to the police, nor the relevant policies. There was no evidence before me that they explained generally or specifically to the applicant about the application of those policies to him, nor of their decision to act as they did with reference to those policies. Ms Hannant’s description of “escalation” and “chain of command” was in my view not such an explanation;
(g)	it was not explained in the respondent’s evidence why the applicant, who was not at work when Ms Hannant and Ms Campbell were acting as they described, was called in from home to attend the respondent’s premises, in circumstances where it was submitted that the matter was urgent and serious, having regard to the respondent’s obligation to ensure the safety of patients, staff and others. The applicant was called by Ms Hannant at 11:45am, at about the same time it was decided to call the police. The police attended the hospital at about 2:40pm. The applicant was not required to attend until 4:00pm, when he was not due to commence work until 9:30pm, and in the meantime the police had been on the premises conducting their enquiries, assisted by the respondent, and at about 4:00pm the police attended Ms Campbell’s office to arrest the applicant. This is not to suggest criticism of the police, as they did their duty;
(h)	there was no explanation from Ms Campbell as to why she believed that she could not discuss or engage with the applicant because the matter had been referred to the police, and
(i)	there was no explanation of whether or not Ms Campbell and Ms Hannant had discussed or identified whether there was “any immediate risks to the safety and welfare of patients and/or staff (including any complainant) that need to be managed immediately”, in accordance with paragraph 2.1 of the Managing Misconduct Policy.
69.	In relation to the respondent’s policy documents, there was no dispute as to the reasonableness of the documents themselves, other than in considering the respondent’s submission in effect that such policy documents are not prescriptive of every situation, and these circumstances were so serious and urgent that the respondent’s actions should not be measured against those documents, and in any event the respondent complied with its policy obligations contrary to the assertion that it had not. It is not necessary in these circumstances to decide whether or not those documents were reasonable.
70.	It was submitted by the respondent that the respondent had complied with its policy documents by deferring an investigation of the applicant until after a police investigation. As noted above, there was no evidence to that effect, that is that the respondent had decided to so defer. 
71.	It might be said that the flow of events in any event leads to that conclusion. However, the onus is on the respondent to prove its case. The respondent from the timeline that I have identified above had both the opportunity over several hours and the means by way of the discussions between senior management (Campbell/General Manager and possibly others identified in the “chain of command”) and the detailed actions of lower management in recording and typing file notes, to consider and explain such a deferral. 
72.	There was no evidence before me in this regard, other than evidence that Ms Campbell had not seen the document or “file note” containing the signed allegations by Ms Elnazar, although she had spoken with Ms Elnazar. A seemingly important document had not been drawn to Ms Campbell’s attention in the process of considering Ms Elnazar’s allegations. 
73.	There was no evidence before me as to whether there was an initial review conducted by 
Ms Hannant, or by Ms Campbell, in accordance with paragraph 2.1 of the “Managing Misconduct” Policy. Although their discussions with Ms Elnazar may have gone towards establishing the “credibility, nature and seriousness of the matter”, there was no evidence before me that there had been an identification of “any immediate risks to the safety and welfare of patients and/or staff (including any complainant) that need to be managed immediately”, notwithstanding the assertion to the contrary in the respondent’s submissions. Ms Campbell did not say so. On the weight of evidence, and its absence, I do not make such an inference or finding that the respondent had complied with its own policy. I do not accept that submission.
74.	It was submitted by the respondent that the allegations were serious and required urgent action by the respondent having regard to its obligations to ensure the safety of patients, staff and others, thereby providing what may be called a circumstance outside the purview of the policy document. Although there was no dispute that the allegations were serious, in my view the timeline identified above indicated that the matter was not so urgent as to warrant being outside the scope of the policy document. I accept the submissions of the applicant in this regard. The applicant was not on the premises at the time that the allegation was made. He did not attend until 4:00pm to attend on Ms Campbell at her office, not on the ward. In the meantime, the respondent had the time to conduct detailed enquiry of Ms Elnazar, to conduct discussions between management and to report the matter to the police. There was also no evidence that the safety of the patient, or staff members, were at risk, that is of present or future risk, other than the allegation being made of a past event, rather than a sequence of events or of a threatened event. I do not accept this submission.
75.	The respondent also submitted that as part of its enquiries, Ms Campbell had interviewed 
Mr Clarke, that his account was credible, and this contributed to establishing that it had acted reasonably. The applicant responded that Mr Clarke was a dementia patient, and his evidence was not reliable, and therefore this did not help to establish reasonableness. 
76.	As noted above, the evidence of Detective Katie Bennett supported the submission by the applicant. The evidence of Ms Karen McDiarmid in the District Court proceedings was that she had worked on Ward 2D for 18 years, and that ward had a mixture of patients, including psychiatric dementia patients and patients with mental health issues, and that working with dementia patients was draining and demanding. The applicant, as noted above had described the ward as a psycho-geriatric ward. Ms Campbell did not say that she had interviewed Mr Clarke as part of her enquiries on 25 June 2020, rather she said she spoke to Mr Clarke on 27 June 2020, that is after the applicant had been arrested. Ms Campbell in her statement of 22 July 2020 conceded that she was surprised to hear words from Mr Clarke in this regard “due to his cognitive state”, and in her statement of 10 November 2022 referred to him as a “vulnerable and cognitively impaired patient”.  The words of Mr Clarke that were recounted by Ms Campbell do not amount to a credible account. In my view this evidence does not support the respondent’s submissions. I do not accept the respondent’s submissions. 
77.	It was submitted by the respondent once the allegations were made it was obliged to report the matter to the police. It submitted that by reporting the matter to police the respondent was obliged not to interfere in the police investigation, to do otherwise would be to effectively tamper in the police investigation and criminal proceedings, and that persons should not be given a “heads up” as to what the police want to talk to them about. It submitted that it is no part of the respondent’s duty to put on the hat of a police officer or an investigator. 
78.	As noted above, neither Ms Campbell nor the respondent elsewhere provided any evidence as to why she believed that the respondent was obliged not to make its enquiries whilst the matter had been reported to the police and the police were investigating. The respondent did not take me to any authority in support of this proposition, nor as to the proposition that making its enquiries was to tamper with the police investigation or to give the applicant a “heads up”. The respondent took me to one authority which was not on point, as discussed briefly below. There was no evidence or authority to support these propositions. In my view if the respondent seeks to rely on a defence under s 11A then the consideration of the reasonableness of its actions does not end with the report to the police, nor with the ensuing police investigation. I do not accept the respondent’s submissions.
79.	The decision in the preceding paragraph to which I was referred by the respondent was Reichardt v Aurrum Pty Ltd. However, in that matter the worker was informed by the respondent that an allegation had been made by a co-worker that she behaved in a sexually inappropriate manner while bathing a resident in the course of employment on a specified date and place, and the alleged incident was referred to the police for investigation and an internal investigation was initiated by the employer. The police investigation was later discontinued on 5 May 2015 and the internal investigation was concluded by the employer on 3 June 2015. Ms Reichardt was cleared of any wrong doing in respect of the allegation of misconduct, but was also ultimately unsuccessful with her claim based upon the finding that the employer’s actions were reasonable. This is to be distinguished from the present case in which the specific details of the assault had not been provided to the applicant. Further the applicant had been informed that she had been stood down on full pay pending an internal investigation, which was not the case here. 
80.	I am not persuaded by this decision, and in any event, each case on the question of reasonableness involve findings of fact and must be decided on its own facts. However, this decision did note and consider the authorities of Northern NSW Local Health Network v Heggie (Heggie), Edwards v Secretary, Department of Education and Communities (Edwards), and Irwin v Director General of School Education (Irwin), to which I will briefly return below.
81.	Before dealing with Heggie, Edwards and Irwin, the parties referred to the decision of Jeffery v Linitipal Pty Ltd. The employer’s reasons for its action is an objective assessment, that is that if the action taken by the employer is found not to be reasonable in all the circumstances then it cannot rely upon s 11A because it held a genuine belief, based on reasonable grounds that its action was reasonable. It was submitted by the respondent that the Commission should determine first whether it is reasonable for the police to be involved and then, second, where the police are involved, whether an investigation process needs to be conducted by the employer, and that objectively the answer is no, that is it has been taken out of the hands of the employer. As to the former question, in my view there was no dispute. As to the latter, I have given my reasons above for not accepting this submission.
82.	It was submitted by the respondent that, following Edwards, reasonableness depends on the facts known to the employer at the time of the action, that is what could have been established at the time by reasonably diligent inquiries. It was submitted by the respondent that such reasonably diligent inquiries, such as they are in the circumstances of immediacy, are to obtain the statement from the person who was the witness, and a statement from the victim, and to then call the police. I do not accept this submission. I have dealt with the evidence in relation to Mr Clarke. I have dealt with the evidence regarding urgency or immediacy. I have dealt with the matters that were not in evidence or explained in evidence by the respondent. I accept the applicant’s submissions that reasonably diligent enquiry in this case should have included the enquiry to the applicant for his response, an enquiry which was not made. 
83.	It was submitted by the respondent that the overriding consideration for the respondent is the wellbeing of other persons in circumstances where a serious criminal allegation had been made. The respondent referred to the mandatory requirements contained in the Managing Complaints Policy in which it is specified that the protection of an organisation’s patients and clients is the primary consideration when managing and making decisions related to potential misconduct. In my view, while it is the case that the policy does specify that overriding consideration, it does not specify that it is the only consideration as evidenced by its provisions for an investigation process which includes the person subject to the complaint. The respondent submitted that in the context of the immediacy of the situation, the right of the applicant was to speak to the police to give his version of events. I do not accept these submissions, for the reasons given above in relation to urgency or immediacy, and to the question of preclusion of employer action, and for the reasons given in this paragraph.
84.	The respondent further submitted that the policy would not need to respond in any event as the policy specifies the mandatory requirement is the safety of the persons in the hospital. This submission was not developed and I do not accept it, for the reasons given in the preceding paragraph.
85.	The applicant submitted that the reference to Edwards was in effect a reference to Heggie, that is that the employer should base its decision on what was available to it at the time or to what in effect reasonable diligence would have revealed to the respondent. The applicant submitted that there was no investigation undertaken at all as the applicant had not been asked by the respondent what happened and it would have found there was a clear factual conflict and the respondent could have done what its policy required it to do, that is to defer a decision until the charges were dealt with. For the reasons given above, I accept the submissions of the applicant.
86.	The applicant also submitted that the respondent had made up its mind about the applicant’s culpability without any enquiry at all. The proposition put by the respondent that the enquiry by the respondent would be compromised by asking the applicant what happened, was challenged by the applicant. The applicant challenged the proposition that the applicant would have the opportunity to tamper with or adapt his evidence in the short period before he was taken away by the police. The applicant submitted that the evidence of Ms Dinh supported its submission that the respondent had made up its mind as to culpability of the applicant without any enquiry.
87.	In my view the applicant’s submissions have substance. I have accepted the information provided by Ms Dinh, as recorded by Ms Hall, as being of weight. The respondent in its correspondence, as distinct from its submissions, did not dispute Ms Dinh’s evidence, indeed it appeared to accept it, in the context of a formal response following the report of Ms Hall, which was not in evidence before me. The respondent challenged other evidence in that response correspondence, but not the evidence of Ms Dinh. I have also given reasons above as to why I have found that the action taken by the respondent did not amount to an initial enquiry as required by the relevant policy document. I have found the respondent had the time and opportunity to ask the applicant what happened but did not do so. There was a notable lack of detail provided by the respondent in explanation of its conduct or discussions in the relevant period. In my view the evidence of Ms Dinh supports the finding that the respondent had made up its mind about what the applicant submitted was his culpability. The respondent’s reliance on a discussion with Mr Clarke after the events of 25 June 2020 was not persuasive. I accept the applicant’s submissions.
88.	The applicant also submitted that the respondent’s termination of the applicant’s employment for frustration of contract without enquiry was further evidence that Ms Campbell and 
Ms Hannant had decided that the applicant was guilty. The respondent submitted that this was an inevitable result of the operation of law, that professional certification must be cancelled and as a result employment terminated. The applicant submitted that proper enquiry by the respondent would have indicated a factual dispute and that cancellation of certification may not have been permanent. I accept the applicant’s submissions. In view of my acceptance of the information provided by Ms Dinh, and of the matters that I have considered, the termination by the respondent of the applicant’s employment in August 2020 is further evidence of the respondent acting without enquiry or regard to the applicant’s version and evidence as to the matters alleged. 
89.	This is not a matter of later circumstances being said to be far removed from the facts known at the time of 25 June 2020, that is matters in relation to the information provided by Ms Dinh, and the employment termination letter referred to above. These later matters were in my view evidence as to the approach taken by the respondent on 25 June 2020 against the applicant.
90.	As was observed in Heggie, “the assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances”. While it is correct that protection of the respondent’s patients and clients is the primary consideration, the relevant policy also provides that the applicant was to be given adequate opportunity to respond to any allegations. He was not given any opportunity to respond. There was no evidence before me of there being a conflict between that primary consideration and the rights of the applicant, in circumstances where the applicant was not due to work again until 9.30pm that night and he had been called in to meet with Ms Campbell at 4pm, and where there was no evidence, nor was there any submission, that there was any further risk to that primary consideration. 
91.	There was no evidence before me of a decision to defer. The applicant in my view was not afforded procedural fairness by the respondent. The same policy also required that the applicant be afforded the right to a support person being present at interview. In this case the interview was the 4pm meeting with Ms Campbell, in which no such opportunity was afforded.
92.	In my view, the relevant policy did apply to the conduct of the respondent on 25 June 2020. In my opinion, the respondent did not comply with its own policy. I have not accepted the respondent’s submissions that the urgency or immediacy of the matter, and the seriousness of the allegations, placed the respondent’s actions outside its own policy. 
93.	If I am found to be wrong as to the applicability of the relevant policy, then in my view in any event the respondent’s actions did not afford the applicant procedural fairness, a matter which is still important in considering the actions of the respondent in the context of its obligations, which are outlined in the relevant policy document.
94.	The respondent in my view has not established that it acted reasonably in the sense relevant to its defence pursuant to s 11A. The respondent has not discharged its onus of proof. I find that the respondent’s actions were not reasonable within the meaning required by s 11A.
95.	As for capacity for work, I have accepted and preferred the opinions of Dr Canaris and 
Dr Nguyen. These opinions are in accordance with the evidence provided by the applicant in his statements. The report of Dr Nguyen provides the relevant dates. The respondent agreed to pre-injury average weekly earnings as listed in the applicant’s amended wage schedule dated 17 June 2024.
96.	Dr Nguyen said that the applicant was incapacitated for any work from 25 June 2020 to 
2 August 2020 due to his incarceration. However, the applicant gave evidence of his symptoms while incarcerated and that when released on bail he consulted Dr Nguyen on 
7 August 2020 with severe stress symptoms. In my view the applicant’s condition in the period of incarceration was consistent with his condition when released on bail and was certified and opined by Dr Nguyen as being totally incapacitated for work.
97.	I do not accept the respondent’s submissions that Dr Clarke was of the view that the applicant had no incapacity for work or at least that the applicant had capacity for work of at least 20 hours per week, as he did work for an employer for 20 hours per week in the period noted by Dr Nguyen. I have not accepted the opinion of Dr Clarke, and I have preferred the opinions of Dr Canaris and Dr Nguyen, which are both contrary to that submission. As to the latter part of this submission, that is that the applicant’s work of up to 20 hours per week indicates that there is such capacity on a continuing basis, Dr Canaris in my view has provided a persuasive opinion as to why that is not the case, that is that the applicant has no capacity for work since ceasing his last employment. This is supported by the opinion of Dr Nguyen. The applicant’s statement evidence also supports this finding.
98.	The applicant’s earnings during the period he worked at Filter Care were variable. I am unable to discern the reason for this variability, other than to accept the applicant’s evidence as to his limits, and the opinion of Dr Canaris that his hold on employment was tenuous. Notwithstanding that, in my view the best measure is to accept the approximate maximum of weekly rate of his earnings in that period for the purpose of the weekly payment calculation in that period.
99.	The applicant submitted that if it was found that there was no capacity for work, then payment of compensation on a continuing basis should be ordered. The respondent made no submissions in this regard. I accept the applicant’s submission. I find that the applicant has no current work capacity, and has had no current capacity for work since ceasing employment with Filter Care, based on his unfitness for his pre-injury work and the opinion that I have accepted that he is not fit for any other work. I find that it is likely to continue indefinitely that he has no current work capacity, based upon the opinions of Dr Canaris and Dr Nguyen. I find that the pre-requisites of s 38 (2) of the 1987 Act have been met.
100.	I find that as a result of psychological injury sustained in the course of his employment with the respondent:
(a)	the applicant has not at any time since 25 June 2020 been fit for his pre-injury work;
(b)	the applicant had no capacity for work from 25 August 2020 to 20 May 2021;
(c)	the applicant had partial capacity for work from 21 May 2021 to 19 October 2023, in the amount and rate as outlined in the applicant’s amended wages schedule dated 17 June 2024, subject to my acceptance that the best method is to calculate based upon the approximate maximum weekly rate disclosed; and
(d)	from 20 October 2023 and continuing the applicant has had no capacity for work.