Thinking | 30 May 2019

Investigating alleged misconduct may not constitute ‘discipline’

A District Court judge has dismissed an appeal by an employer which was found liable for a worker’s stress injury, in relation to an issue of whether there had been ‘discipline’.

Catherine Kieronski suffered a stress injury in the course of her employment with Woodside on 13 August 2013 when she was called to a meeting with her supervisor and Woodside’s employee relations manager. In the meeting, Ms Kieronski was informed of serious allegations against her and asked to participate in a subsequent interview as part of an investigation. She was told that, due to the seriousness of the allegations, she was to be stood down on full pay. Ms Kieronski’s security pass and company telephone were taken from her; she was escorted to her desk to collect her belongings and accompanied home in a taxi.

Woodside accepted that Ms Kieronski suffered a stress injury on 13 August 2013 and that her employment contributed to a significant degree to her contracting that injury. Woodside defended the claim in reliance upon the ‘discipline’ exclusions in the Workers’ Compensation and Injury Management Act 1981 (Act). Essentially, a stress claim is not compensable if the stress wholly or predominantly arose from the worker’s discipline (unless the discipline was unreasonable or harsh) or an expectation of discipline: ss5(1) and 5(4).

The presiding arbitrator awarded Ms Kieronski compensation, finding that what had occurred did not constitute ‘discipline’ and her stress did not wholly or predominately arise from an expectation of discipline.

Woodside appealed the decision on the basis that the arbitrator’s findings that the stress did not arise predominantly from an expectation of discipline and that its actions on 13 August 2013 were not discipline, both were questions of law, or alternatively mixed fact and law. Her Honour District Court Judge Glancy found that they were both findings of fact and refused leave to appeal as there was no questions of law. The appeal was dismissed.

Her Honour referred to the approach taken by District Court Judge Herron in Pilbara Iron Company (Services) Pty Ltd v Suleski [2017] WADC 114 that, in assessing whether conduct is discipline, any relevant contracts, instruments, orders, internal policies or guidelines, including codes of conduct, that regulate the rights and obligations of employee and employer will be taken into account. As a result, what might be discipline in one matter might not be discipline in another case where different disciplinary protocols apply.

In this case, Woodside’s Code of Conduct was considered the most probative evidence. Woodside’s Code provided for disciplinary action to be taken where a contravention of the Code was established following investigation. Further, the distinction between the investigative and disciplinary processes appeared consistent with the language used by Woodside throughout with Ms Kieronski.

Glancy DCJ also focused on the arbitrator’s finding of fact that the predominant causes of Ms Kieronski's stress were her perceived loss of reputation, her sense of injustice and the need to clear her name, not an expectation that she would be disciplined (although he also found that was a cause).

This decision illustrates that internal policies, guidelines and disciplinary protocols may dictate whether certain investigations into alleged misconduct may be found to be discipline. It is also a reminder that, if a combination of excluded and other matters cause the stress condition, the exclusions may not apply.

Woodside Energy Ltd -v- Kieronski [2019] WADC 64

This article was written with the assistance of Ben McGowan, Law Graduate.

Contact

Anton Vucak

Anton practices in all areas of insurance law, focusing on workers' compensation, medical treatment and public/property liability.

Rosena De Freitas

Rosena is an insurance lawyer with extensive experience in workers’ compensation and personal injury matters.

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