Case: Fry v Secretary, Department of Education [2025] NSWPIC 79

Date of Decision: 10 March 2025

Jurisdiction: Personal Injury Commission, New South Wales

Background

The Applicant was employed by the Department of Education as a special educator. The Applicant had been employed with the Respondent for 27 years since commencing employment as a casual teacher. The Applicant claims to have developed a conflict with some staff members during mid-2022.

Following the incidents, the Applicant was sent the letter dated 19 August 2022 signed by the Director of Child Protection Investigations listing out the allegations received against the Applicant which were under investigation. The Allegations were as follows:

1. Making aggressive, derogatory and/or threatening comments towards or in the presence of staff including calling staff ‘cunts’,
2. Yelling at staff,
3. Requesting staff to attend the Applicant’s residence during work hours to complete jobs for the Applicant,
4. Requesting staff to shop for and deliver groceries during work hours for staff in isolation or who were unwell,
5. Misusing school funda to pay for staff morning tea, and
6. Showing preferential treatment to staff.

The Applicant refuted almost all the allegation as untrue or having been properly authorized at the time.

The letter dated 15 November 2022 from Executive Director, PES directed the Applicant to undertake non-teaching alternative duties at the Forster Education Office due to the seriousness of the allegations and the risk posed by the Applicant to the Department.

A Findings Report dated 6 November 2022 found that most of the allegations were sustained. The report stated that, “while each example of the Applicant’s sustained misconduct maybe relatively low level, collectively they demonstrate a pattern of behaviours that is incongruous with the expectations that the Department has of executive teachers…”

Following which, the letter dated 18 November 2023, informed that the severest disciplinary actions being contemplated was demotion to the position of classroom teacher and transfer to another position at that level. The Applicant was subsequently demoted to a classroom teacher position.

The Applicant claimed compensation for a psychological injury arising out of or in the course of her employment with a deemed date of injury of 2 August 2022. Liability for which was initially accepted by the Respondent’s insurer.

However, liability to pay ongoing compensation was subsequently disputed on 10 October 2023, on the grounds that the injury had resolved. This decision was maintained following an internal review with Notices dated 15 February 2025 and 22 October 2024.

A second claim for compensation was made in respect of a psychological injury with deemed date of injury 16 November 2022. Liability was disputed on the 15 December 2022 on grounds that the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by the Respondent with respect to discipline, transfer and/or dismissal under s11A(1) of the Workers Compensation Act 1987 (the WCA).

The proceedings were commenced in the Personal Injury Commission (PIC) on 1 November 2024, whereby the Applicant sought weekly compensation from 1 February 2023 onwards and general medical and related treatment expenses with respect to dates of injury 2 August 2022 and 16 November 2022.

The matter was set for conciliation conference and arbitration hearing on 10 February 2025 where the parties were unable to reach an agreement.

Issues

There was no dispute that the Applicant suffered an injury with deemed date of injury on 2 August 2022. However, the causative events leading to the injury and the ongoing effects of that injury were in dispute. There is also no dispute that an injury occurred with deemed date of injury on 16 November 2022. However, the Respondent disputed that the Applicant was entitled to compensation relying on s11A(1) of WCA.

The following issues have been identified:

1. Whether the injury deemed to have occurred on 16 November 2022 was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, discipline and/or dismissal pursuant to s 11A(1) of WCA,
2. The extent to which any incapacity during the period from 1 February 2023 onwards resulted from:
   1. The injury deemed to have occurred on 2 August 2022, and
   2. The injury deemed to have occurred on 16 November 2022,
3. The quantification of any incapacity, and
4. The entitlement to medical and related treatment expenses pursuant to s60 of WCA.

Decision

The Commission determined:

1. The Applicant claimed that she was not provided sufficient information relating to the allegations.
   1. The Commission found that there was a material denial of procedural fairness to the applicant arising from the failure to give her sufficient information to enable her to meaningfully respond to the allegations.
   2. As a result the Commission was not satisfied that the injury deemed to have occurred on 16 November 2022 was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to transfer, discipline and/or dismissal for the purposes of s 11A(1) of the Workers Compensation Act 1987.

2. In the period since 1 February 2023, the applicant has been incapacitated as a result of both the injuries, deemed to have occurred on 2 August 2022 and the injury deemed to have occurred on 16 November 2022.
   1. In determining whether there are ongoing effects of the first injury, the Member took into consideration the specialised medical experts’ evidence presented by the Applicant and the Respondent as well as the medical reports of the Applicant’s treatment provider. The Member found the treatment provider’s reports to be most helpful and decided that the Applicant was incapacitated as a result of both the first and the second injuries in the period of weekly compensation claimed.

3. The Member found that the issue of quantification of incapacity during the period from 1 February 2023 to be difficult given that the Applicant has continued to work suitable duties at varying times since the injury occurred and since the Applicant’s incapacity had fluctuated. The parties were provided the opportunity to attempt to resolve the claim for weekly compensation after the liability disputes were determined by the Commission.

4. It was agreed that a general order for medical and related medical expenses should be made in the event that the liability disputes were determined in the Applicant’s favour.

Key Lessons for Employers and Insurers

The key takeaways for Employers and Insurers are as follows:

1. On the issue of reasonable employer action, it is imperative that employers provide full and transparent information of performance/complaint/disciplinary issues, and allow the worker sufficient time to address the matters raised in order to demonstrate procedural fairness.
2. There is no fixed content to the duty to afford procedural fairness. The fairness of the procedure depends on the nature of the matters in issue, and what would be a reasonable opportunity for parties to present their cases in the relevant circumstances. Mason J stated in Kioa v West that ‘the expression “procedural fairness” … conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case’: see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252.
3. More broadly, the importance of raising the correct questions with the qualified medical specialists. This will ensure that any issues are clarified. It is also important to draw the attention of the qualified medical specialists to any documents containing useful information.
4. Obtaining and reviewing all of clinical notes of treatment providers. In this case the Member relied heavily on the reports of the Applicant’s treatment provider. Thus, in arriving at a decision, the Member took into consideration all evidence before them, irrespective of whether evidence from a treatment provider could present “treater bias”. It is important to identify and present the documents from treaters to medical experts to obtain the best evidence.

The material contained in this publication is in the nature of general comment only, and neither purports nor is intended to be advice on any particular matter. No reader should act on the basis of any matter contained in this publication without considering, and if necessary, taking appropriate professional advice upon their own particular circumstances.