In this case, the District Court was considering the
determination of an arbitrator on the question of "harsh and
unreasonable" under the provisions of the Workers'
Compensation and Injury Management Act.
The worker, Catherine Kieronski had been stood down from her
position as marketing liaison officer with Woodside, pending an
investigation of various allegations relating to her conduct. The
allegations involved serious breaches of Woodside's code of
conduct, including involvement in an inappropriate relationship
with a Chinese customer and providing confidential information to
parties external to Woodside.
In August 2013, Ms Kieronski was called to a meeting at which
she was informed of the allegations and of the process of
investigation which to was to be followed.
Two years earlier, Ms Kieronski had become aware of certain
allegations that have been made in relation to her conduct and had
developed stress and depression. She made a claim for compensation
in August 2012 and liability was accepted, compensation and medical
treatment were paid and a return to work programme instigated.
The meeting at which Ms Kieronski was informed of further
allegations, therefore occurred after an initial period in which
she had been suffering from a stress-related condition.
As a result of the information provided to her at the meeting in
August 2013, Ms Kieronski experienced an increase in her
In November 2013, following the investigation that had been
carried out, Ms Kieronski was given a letter inviting her to show
cause why her employment should not be terminated. On 20 November
2013, she made a further claim for compensation which was the
subject of the arbitrator's determination and subsequent appeal
to the District Court.
For the purpose of the arbitration and appeal, it was common
ground that Ms Kieronski experienced the increase in her
symptomatology following a meeting in August 2013 and that this
resulted in a stress-related medical condition. It was also common
ground that the meeting had involved discipline and that under the
provisions of the Act, Ms Kieronski would not be entitled to
compensation for any injury caused by stress resulting from that
meeting unless the conduct of her employer was found to be
"unreasonable and harsh".
The arbitrator found in favour of Ms Kieronski. In essence, the
arbitrator's finding was based on her view that it was
unreasonable and harsh for the employer to call Ms Kieronski to the
meeting in question without prior notice or details of what the
meeting was going to involve. The arbitrator also found that there
had been an absence of procedural fairness in the process.
These conclusions made by the arbitrator were appealed on the
grounds that the arbitrator's reasoning involved errors of
On appeal in the District Court, Parry DCJ agreed with the
submission made by counsel for the appellant that the arbitrator
had erred in law in reaching her determination. The error involved
the view that the content of the meeting of August 2013 was
irrelevant to the determination of whether the conduct of the
employer was unreasonable and harsh. On the contrary, Parry DCJ
found that the content of the meeting was entirely relevant. It was
not a meeting in which the worker was confronted with an
employer's findings arising out of a concluded process of
investigation as to which the employee has had no input, but rather
a meeting at which she was informed of both the allegations and the
process that would be followed. It would have been unreasonable and
unrealistic to contemplate prior notice of such a process.
The worker also complained of the conduct of the employer when
she was stood down, by confiscating her mobile phone and security
pass and escorting her from the premises. The court however,
considered there was no lack of procedural fairness in such
The findings made in the District Court suggest that the
arbitrator's error arose out of a preoccupation with process,
causing her to lose sight of what was actually going on. What the
court found was happening, was that Ms Kieronski was being informed
of serious allegations relating to her conduct which were to be
investigated by her employer. She was not being informed of the
findings made by her employer which she had not been afforded the
opportunity to contest or to which she had been deprived of
The appeal was upheld and although the court conceded that it
would have been a small step to substitute its decision on the
worker's application for compensation for that of the
arbitrator, it was considered that the preferable course was to
remit the matter for rehearing for different arbitrator.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
Kott Gunning is a proud member of
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
An employer's duty is very high and can include engaging experts to inspect things such as stairways for latent defects.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).