McKellar v Workcover Authority of New South Wales [2004] NSWADT 136

CITATION: McKellar v Workcover Authority of New South Wales [2004] NSWADT 136 DIVISION: General Division APPLICANT PARTIES: Wayne Allan McKellar RESPONDENT WorkCover Authority of New South Wales FILE NUMBER: 033350 HEARING DATES: 26/03/2004 SUBMISSIONS CLOSED: 03/26/2004 DATE OF DECISION: 07/09/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Occupational Health and Safety Act - OHS Certificate Assessor - cancellation of accreditation - OHS Certificate Assessor - cancellation of accreditation MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Doyle v Commissioner of Police [1999] NSWADT 84 CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 Williamson -v- Director General, Department of Transport [2002] NSWADT 36 Ybasco v Director-General, Department of Transport No.2 [1999] NSWADT 85 APPLICANT REPRESENTATION: D Shoebridge, barrister RESPONDENT W Muddle, barrister ORDERS: The decision of the WorkCover Authority of New South Wales to cancel the accreditation of Wayne Allan McKellar is affirmed.

REASONS FOR DECISION 1 Mr. Wayne McKellar applied to the Tribunal for a review of the decision by the WorkCover Authority of NSW ("WorkCover") under the Occupational Health and Safety Act 2000 ("the OH&S Act"). WorkCover's decision, dated 19 November 2003, was to cancel Mr. McKellar's accreditation as an OHS Certificate Assessor pursuant to clause 287 of the Occupational Health & Safety Regulation 2001 ("the Regulation"). Mr. McKellar sought an internal review of the decision. Following that review the original decision was affirmed. Mr. McKellar was advised of the outcome of the review and the reasons for the decision. 2 Mr. McKellar provided the following reasons for his application: "WorkCover did not arrive at the correct and preferable decision in cancelling the applicant's OHS accreditation. In cancelling applicant's OHS accreditation WorkCover placed excessive emphasis on technical failings in the applicant's assessment paperwork during the first seven months of his accreditation. Such technical failings did not go to the merits of the assessments performed by the applicant. WorkCover failed to consider or give any weight to the great bulk of the applicant's assessment paperwork from November 2002, despite the applicant's invitation in that regard, which paperwork did not contain such technical failings." Legislative provisions 3 Section 63 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") sets out the Tribunal's approach to review: "63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." 4 Section 67 of the ADT Act sets out the basis upon which parties appear before the Tribunal: "67 Parties to proceedings before Tribunal … (2) The parties to proceedings before the Tribunal for a review of a reviewable decision are: (a) any person who, being entitled to do so, has duly applied to the Tribunal for a review of the decision, and (b) the administrator who made the decision, and (c) if the Attorney General intervenes in the proceedings under section 69_the Attorney General, and (d) any other person who has been made a party to the proceedings by the Tribunal in accordance with subsection (4), and (e) any person specified by or under any enactment as a party to the proceedings. …" 5 Section 36 of the OH&S Act provides for applications to the Tribunal in the following terms: "36 Regulations may prescribe decisions that are to be reviewable by Administrative Decisions Tribunal (1) The regulations may authorise a person to apply to the Administrative Decisions Tribunal for a review of a decision, of a class prescribed by the regulations, that is made under this Act or the regulations. (2) Any such regulation cannot be made without the concurrence of the Minister administering the Administrative Decisions Tribunal Act 1997." 6 Clause 351 of the Regulation provides as follows: "351 Decisions subject to review by the Administrative Decisions Tribunal: section 36 of the Act (1) A person aggrieved by a decision that belongs to one of the following classes of decisions made by WorkCover (being a decision made in respect of that person) may apply to the Administrative Decisions Tribunal for a review of the decision: … (c) decisions under Chapter 9: (i) to refuse to issue a certificate of competency, or (ii) to suspend or cancel a certificate of competency, or (iii) to refuse to replace a certificate of competency, or (iv) to refuse to accredit a person as an assessor, or (v) to suspend or cancel a person's accreditation as an assessor, or (vi) to confirm the decision of an assessor on an application for a review of the decision, … Note: The Minister administering the Administrative Decisions Tribunal Act 1997 has concurred in the making of the above clause pursuant to section 36 (2) of the Occupational Health and Safety Act 2000." 7 Section 62 of the OH&S Act provides WorkCover inspectors with certain powers in relation to the obtaining of information, documents and evidence: "62 Power of inspectors to obtain information, documents and evidence (1) An inspector may, by notice in writing served on a person, require the person to do any one or more of the following things if the inspector has reasonable grounds to believe that the person is capable of giving information, producing documents or giving evidence in relation to a possible contravention of this Act or the regulations: (a) to give an inspector, in writing signed by the person (or, in the case of a body corporate, by a competent officer of the body corporate) and within the time and in the manner specified in the notice, any such information of which the person has knowledge, (b) to produce to an inspector, in accordance with the notice, any such documents, (c) to appear before an inspector at a time and place specified in the notice and give either orally or in writing any such evidence and produce any such documents. (2) A notice under this section must contain a warning that a failure to comply with the notice is an offence. (3) An inspector may inspect a document produced in response to a notice under this section and may make copies of, or take extracts from, the document. (4) An inspector may take possession and retain possession for as long as is necessary for the purposes of this Act, of a document produced in response to a notice under this section if the person otherwise entitled to possession of the document is supplied, as soon as practicable, with a copy certified by an inspector to be a true copy. (5) A certified copy provided under subsection (4) is receivable in all courts as if it were the original. (6) Until a certified copy of a document is provided under subsection (4), the inspector who has possession of the document must, at such times and places as the inspector thinks appropriate, permit the person otherwise entitled to possession of the document, or a person authorised by that person, to inspect the document and make copies of, or take extracts from, the document." 8 Clause 287 of the Regulation provides: "287 Suspension and cancellation of accreditation (1) WorkCover may suspend or cancel the accreditation of a person who is accredited as an assessor if it is satisfied that: (a) the assessor is no longer competent to carry out the kinds of assessments for which the assessor is accredited, or (b) the assessor has been convicted of an offence against the Act or the associated occupational health and safety legislation, or any regulation under the Act or that legislation, or of an offence against a corresponding law or any regulation under a corresponding law, or (c) the assessor was accredited on the basis of false or misleading information or a failure to disclose or provide required information, or (d) the assessor has carried out an assessment of competency: (i) otherwise than in accordance with the guidelines issued by WorkCover in relation to the conduct of assessments, or (ii) in the case of an assessor who has carried out an assessment under a corresponding law, otherwise than in accordance with that law or any guidelines in force under that law, or (e) the person has had his or her accreditation to conduct OHS induction training suspended or cancelled under clause 217A, or has had his or her approval as a Premium Discount Advisor suspended or cancelled under the regulations under the Workers Compensation Act 1987, for reasons of a kind referred to in paragraph (b), (c) or (d). (2) Before suspending or cancelling an assessor's accreditation, WorkCover: (a) must cause written notice of the proposed suspension or cancellation to be given to the assessor, and (b) must give the assessor a reasonable opportunity to make representations to WorkCover in relation to the proposed suspension or cancellation, and (c) must have regard to any representations so made. (3) If, after having regard to any representations made by the assessor, WorkCover decides to proceed with the proposed suspension or cancellation, WorkCover must give to the assessor a written notice: (a) stating that the accreditation is suspended or cancelled, and (b) in the case of a suspension, specifying the period for which the accreditation is suspended, and (c) giving reasons for the suspension or cancellation. (4) The suspension or cancellation takes effect on the date on which notice of the suspension or cancellation is given to the assessor or such later date as may be specified in the notice." WorkCover's case 9 The reasons that WorkCover provided for the internal review decision provide a reasonable summary of WorkCover's case. In part, those reasons stated: " Findings of Fact Mr. McKellar began assessing in April 2002. In August 2002 WorkCover arranged a compulsory briefing for all assessors. Assessors were required to bring their last 20 assessments and the notice of satisfactory assessments for WorkCover to audit. The audit of these records for Mr. McKellar commenced in March 2003. Mr. McKellar had not supplied the Notice of Satisfactory assessment forms at the August briefing and was contacted on 14 March 2003 to supply the documents. The documents were provided approximately 2 weeks later. Assessors are required to set knowledge questions from an assessment instrument. During the audit of the 20 assessments 5 assessments (2 advanced rigging, 1 intermediate rigging and 2 basic scaffolding) were identified where the applicant was assessed as competent when they should not have been. One of the mandatory questions had not been asked and another mandatory question had been improperly substituted however the answer was the same as prescribed in the Assessment Instrument. The Assessment Instrument prescribes the precise questions to ask and has the model answers. At the interview on 12 November 2003 Mr. McKellar could not explain why this had happened. Following the audit in March 2003 additional records for rigging assessments were requested from Mr. McKellar. The records selected were from his last rigging assessment these were conducted in November 2002. Mr. McKellar supplied the 10 assessments done on 8 November 2002. A review of these records indicated a number of issues. For question 1(i) 6 applicants were marked correct answer when they were not correct. For question 2(f) 6 applicants had changed their original answer to the correct answer. The original incorrect answer appears to have been the same for 4. The four applicants were interviewed by WorkCover Inspectors in April and May 2003 about the answer provided and could not explain why they had changed their answer. Mr. McKellar was asked if he could explain this and he responded "Don't know". This evidence is strongly suggestive of the examinations being conducted other than in accordance with the assessment procedures. Refer p 17 Assessment procedure "Guideline for certificate assessors"). The mandatory section of the assessment requires the applicant to demonstrate an understanding of how to calculate safe working conditions when moving loads ie how to calculate the maximum load that can be lifted on a rope spanned over a distance or the rope tension required to hold a suspended scaffold. The question on the Gin pole was not taken from the assessment instrument which is a failure to comply with the assessment instrument. The answers provided match the model answer from the instrument however it was not the correct answer to the question actually asked. Most applicants did not satisfactorily demonstrate how they arrived at the answer provided. Applicant Pilcher was assessed as being competent despite failing to correctly answer the question and did not provide an answer to 3 questions however they were marked correct. This applicant was assessed as competent when in fact he should not have been. Applicant Shead was assessed as competent although he should not have been as he provided an incorrect answer. Applicant Allan was assessed as competent although he should not have been as he provided an incorrect answer. Applicant Deans was assessed as competent although he should not have been as he provided the wrong answer. On 10 October 2003, WorkCover advised Mr. McKellar that following a review of his assessments that he was in possible breach of the WorkCover NSW Guidelines for Certificate Assessors. The assessments of concern to WorkCover were those conducted on or around 27 June, 13 July, and 8 November 2002. In the letter WorkCover requested that Mr. McKellar attend an interview to discuss the issues raised in the investigation. WorkCover advised that it is possible that suspension or cancellation action may be taken. On 12 November 2003 Mr. McKellar attended an interview with WorkCover officers where matters relating to the knowledge assessments indicated that Mr. McKellar had breach WorkCover Guidelines in several instances. At the interview, Mr. McKellar was provided with an opportunity to explain why mandatory questions in the assessment had not been asked. Mr. McKellar at q36 stated that "he would go through it with the applicant and clarify the answer and put a ? there, on the front of the form [corresponding to] the question and ask them about it to see where they went wrong." At q39 in response to the question "Do you there is no evidence of you clarifying the answer?" he states "No" there is. On 19 November the decision maker David Barker notified Mr. McKellar that his accreditation would be cancelled based on his breach of the OHS Regulation 2001 clause 287 (1)(d)(i) which states that WorkCover may suspend or cancel the accreditation if the "assessor has carried out an assessment of competency otherwise than in accordance with the guidelines issued by WorkCover in relation to the conduct of assessments." The Guidelines for Certificate Assessors set out among other things the appropriate conduct of assessors in the written knowledge assessment and the field performance assessment. Knowledge assessment must be conducted under the direct supervision of the assessor [Refer to Guidelines under Code of Conduct]. If oral assessment is undertaken, the assessor must be present and indicate clearly that the assessment was conducted orally. The guidelines were written to ensure that the integrity of the assessment is maintained thereby preventing incompetent persons from gaining acceptance and subsequently presenting a major safety risk to workers and the general public. The information contained in the knowledge assessments and the information provided by Mr. McKellar in his interview with WorkCover Officers indicates that Mr. McKellar has not conducted the assessments correctly. At the interview Mr. McKellar indicated that WorkCover Inspector Jim McAuliffe had provided assistance to him on a number of occasions explaining what the requirements for the assessments. In the representations from his solicitor Mr. McKellar indicates that in September 2002 he contacted WorkCover requesting advice on how he conducted assessments. Inspector McAuliffe attended several assessments with Mr. McKellar and according to Mr. McKellar found most aspects of his practices satisfactory. In his statement to WorkCover Mr. McKellar stated that following the advice from Inspector McAuliffe he was able to conduct the assessments in accordance with the guidelines and would seek assistance if required. The assessments conducted in November 2002 as described above indicate that Mr. McKellar still was not following the requirements of the assessment instruments. Applicable Law Accreditation of assessors is governed by clause 284 of the OHS Regulation. Clause 287 of the OHS Regulation covers the Suspension and Cancellation of Accreditation. Specifically 287(1)(d)(i) provides that WorkCover may suspend or cancel the accreditation of a person who is accredited as an assessor if it is satisfied that the assessor has carried out an assessment of competency otherwise than in accordance with the guidelines issued by WorkCover in relation to the conduct of the assessments. The Penalty Guide determines the severity of the breach and the appropriate action to be taken. The breach of the Guidelines where an assessor issues Notice of Satisfactory Assessments without proper assessments such as incorrect questions, not asking mandatory questions and incorrect marking of applicants answers results in cancellation of their accreditation. The cancellation of an accreditation in the Penalty Guide is only taken when there are serious breaches of the Guidelines, taking into account their impact on the safety of the applicant, his or her co-workers and the general public. The failure to ascertain the knowledge and competence of an applicant for a certificate of competency by way of proper and thorough assessment can lead to major consequences, such as plant failure, collapse scaffolding and cranes. The national certification system, which is adopted in the OHS Regulation, recognised through industry experience that equal emphasis should be placed on both written knowledge assessment and field performance assessment. The breach of the assessment process by Mr. McKellar falls within clause 287(1)(d)(i). Reasoning processes From the examination of the evidence gathered above, there is a clear breach of the Regulation in relation to the conduct of assessments by Mr. McKellar. The areas of breach are knowledge assessments not marked correctly, knowledge assessments with incorrect questions, knowledge [assessments] wrong answers marked correctly. These lead me to conclude that the assessments were not conducted adequately to ascertain the competence of applicants. Allowing an assessor of to operate in a manner that could jeopardise the safety of workers and the community is inconsistent with the objects of the OHS Act and Regulation. The cancellation decision was therefore taken to eliminate the risk of Mr. McKellar allowing persons who do not possess the required standard of competency to receive certification to operate high-risk plant. I therefore affirm the decision to cancel Mr. McKellar's accreditation as an assessor." 10 WorkCover also relied on voluminous material in relation to the alleged breaches by Mr. McKellar in the conduct of assessments. A schedule put in evidence provided a summary of the alleged breaches. In the main, these breaches are not disputed. WorkCover also put in evidence a statement by Mr. David Barker which states: "I am an Inspector appointed by the WorkCover Authority of New South Wales, under the Occupational Health and Safety Act 2000. I am the Inspector who had carriage of the investigation as a result of an audit carried out by WorkCover in relation to the applicant. On 12 November 2003, I interviewed the applicant at the WorkCover office, level 2, 92-100 Donnison Street, Gosford in relation to this matter. Also present at that interview were Assistant Principal Inspector Nigel Ball and Ruth Joplin, an administrative Officer with the Audit Management Unit who typed, and read back answers given whilst the interview was being conducted ("the transcript"). At the conclusion of the interview, a copy of the transcript was printed and was handed to the applicant by me for the purpose of allowing the applicant to read the transcript and raise any matter as to corrections prior to the document being signed by both parties. I said to the applicant words to the effect: "Would you please read over this statement and sign it as a true and accurate record?" The applicant then motioned for his top pocket he said words to the effect of "I'll take it as read...". By the applicant motioning to his top pocket, I assumed that he was attempting to locate reading glasses. I then observed the applicant initial each page and sign the final page , prior to me doing the same. The applicant was then handed a photocopy of the signed document. On 25 March 2004, I had a telephone conversation with Mr. Kim Wilson from Skills Training Mackay. I said to him words to the effect: "Why hasn't Mr. McKellar started employment with you yet?" He replied with words to the effect: "He was supposed to start up here in early January or February, his offer of employment was if he came to us as an accredited assessor/trainer we would employ him. That was prior to all of the stuff with NSW WorkCover." I then said words to the effect: "Are you aware of the Queensland moratorium for accredited providers?" He replied with words to the effect: " Yes , we were talking with Mr. Frank Frazer from QLD Work Health and Safety, and he was saying that if Wayne got the stuff to him prior to the Moratorium on 1/12 he could help us with his accreditation, but after that he couldn't help us. I then said words to the effect: "In light of the moratorium, that is that Mr. McKellar cannot be qualified in Queensland regardless of the outcome of these proceedings, will you still employ him?" He replied with words to the effect: " The deal was that if he had accreditation as an assessor/trainer we would employ him. If he had some way of getting accreditation we would employ him. That was prior to this moratorium." 11 WorkCover does not dispute that the loss of his accreditation will have significant consequences for Mr. McKellar. 12 Mr. Muddle submits that the role of an assessor is an important one because an assessor acts as a gatekeeper. WorkCover does not carry out assessments but relies on the assessors to undertake this role. The legislative scheme sets the assessor as an independent person with statutory obligations. It is an offence for an assessor to not comply with the guidelines. WorkCover asserts that each item in the schedule is an offence and that many are serious offences. The alleged offences relate primarily to the assessment process, and the keeping of inaccurate or incomplete records. 13 The system is designed to be transparent with guidelines setting out questions and answers and provision for an audit process. Mr. McKellar substituted his own criteria for those provided for in the guidelines and instruments. It is not simply a matter of his failing to complete paperwork. Mr. Muddle asserts that it is important to have records completed properly and transparently so it is possible for WorkCover to carry out an assessment. WorkCover cannot conduct audits without correct records. It is particularly important that all oral assessment be recorded. If accurate records are not kept it is impossible for WorkCover to determine whether proper assessments have been carried out. 14 Mr. Muddle submitted that assessors provide assessments for entry into high-risk industries eg rigging, and therefore it is vital that assessors are able to satisfy critical performance criteria. Mr. McKellar did not get close to the required standard for the critical performance criteria. Mr. Muddle argued that Mr. McKellar does not understand his obligations. WorkCover concedes that the guidelines provide for an audit process in two stages but argues that there is no legislative requirement for WorkCover to comply with those guidelines. Mr. Muddle submitted that it would not make sense to require WorkCover to follow every detail of the guidelines. He submits that the argument that Mr. McKellar should be told what is going wrong and given another audit report before he can be called to task is totally misconceived. 15 Mr. Muddle referred to section 63 of the ADT Act which sets out the approach to be taken by the Tribunal. The Tribunal is to decide what the correct and preferable decision is having regard to the material then before it. He argued that the Tribunal should not ignore WorkCover's material that reflects on Mr. McKellar's competence just because WorkCover did not undertake a second audit. He urged the Tribunal to note that Mr. McKellar has conceded 31 pages of errors and ultimately provided no reasonable explanation for those errors. Mr. McKellar barely got into his first year as an assessor without serious offences. 16 Mr. Muddle submitted that the Tribunal should conclude that it is not appropriate that Mr. McKellar be put back as a gatekeeper to assess people going into high-risk occupations. There is a serious public safety issue at stake and there is a serious public confidence issue at stake. Mr. McKellar' case 17 Mr. McKellar appeared and gave evidence on his own behalf and was subjected to cross-examination. He also provided a statement, which provides a reasonable summary of his case. Mr. McKellar stated: "2. On or about 14 August 2002 I attended a briefing session on the Guidelines for Certificate Assessors conducted by WorkCover. 3. To the best of my recollection at that session I received the revised Guidelines for Certificate Assessors (hereafter referred to as the "Guidelines"). So far as I can recall the Guidelines I received at that meeting were identical to those contained at document 40 in the respondent's documents notwithstanding the fact that that document is dated 1 September 2002. 4. At the 14 August 2002 session I was also required to produce my last 20 assessments and notices of satisfactory assessment documentation for an initial audit by WorkCover. This was the first audit that I had received from WorkCover since my accreditation. A copy of the coversheet I completed at the time is contained at document 4 of the respondent's documents. 5. I supplied the required assessment papers for that audit process. A copy of the list of assessment papers supplied for that process is annexed to this statement and marked "A". 6. I was further advised at the 14 August 2002 meeting that my future assessments must comply with the Guidelines and that WorkCover would also comply with the Guidelines in so far as it, and its officers, had obligations under the Guidelines. 7. In September 2002 I was asked to supply some additional information in relation to the assessments subject to the audit and I did this. The Assessment Guidelines 8. The Guidelines are quite specific as to how audit procedures are to be conducted. They set out on pages 34 and 35 that the purpose of the audits is to help assessors make certain that they are conducting assessments in accordance with the Assessment Instruments and the Guidelines. 9. The Guidelines state that an audit by WorkCover is to be carried out in two parts: (a) The first is to have an auditor attend on an assessment and note how the assessor conducts an assessment process. (b) The second is to assess a number of records to evaluate how well the Assessment Instruments and Guidelines have been followed. 10. I note at this point that at no time did an auditor attend on any assessment that I conducted. 11. The Guidelines provide that following the audit process outlined above an auditor is to make "findings" as to compliance and then issue "results" as to conformance or non-conformance. 12. The Guidelines make clear at page 35 the following in relation to audits conducted by WorkCover: "Non-conformance with the standards required by WorkCover NSW means that an assessor's conduct does not meet the criteria in a number of important areas. The audit report provided to the assessor describes problems and how they must be corrected . … A report on the findings of the audit will be prepared for the information of the assessor. The report advises the assessor of any necessary steps that must be taken to improve the audit findings. These improvement actions must be implemented as soon as the audit report is given to the assessor. The assessor then returns a statement confirming receipt of the audit report to WorkCover NSW. If an audit result shows there is significant non-compliance with the requirements of these Guidelines and the Assessment Instruments, WorkCover NSW will conduct an additional audit. This audit will focus on the applicants assessed after the statement confirming receipt of the audit report is returned to WorkCover NSW. The purpose of this second audit is to establish that the improvement actions have been implemented. ... " [Emphasis Added] 13. I note at this point that I only ever received one audit report from the Respondent. That is the audit report dated 18 March 2003 and contained at document 4 of the respondent's documents and that I did not receive this until mid-October 2003 when the initial decision to take steps to cancel my accreditation had already been made. Notice of Proposed Cancellation in October 2003 14. After attending the August 2002 meeting and providing the additional material in September 2002 I was not supplied with any further information in relation to the audit process until 14 October 2003. On that date I received the Notice of Proposed Cancellation dated 10 October 2003. Whilst the Notice makes no reference to any audit report, to the best of my recollection the Notice was accompanied by an audit report from WorkCover dated 18 March 2003 which is document 4 in the Respondent's documentation. That was the first time that I recall seeing that audit report. 15. Throughout 2002 and 2003 I was aware of the fact that I needed some assistance from time to time with ensuring that I complied with the Guidelines and Assessment processes. 16. I found the August 2002 session on the revised Guidelines confusing and difficult to follow. As a result I decided that I would speak with Jim McCauliffe from WorkCover to have him attend me to give me further guidance. To the best of my recollection Jim attended on an assessment in September 2002 and gave me some useful feedback in how I was conducting assessments and what improvements I could make. I endeavoured to implement all his suggestions. 17. I also have a practice when I have matters that need clarification in the Assessment Instruments or the Guidelines of calling either WorkCover or other more experienced inspectors for assistance from time to time. 18. I am dyslexic. This means that sometimes it takes me longer to read and understand written information like the Guidelines and Assessment Instruments. Whilst it may take me longer than others to read material I am capable of understanding and comprehending all the documentation. I am of the belief that my dyslexia may have meant that I was a little slower in comprehending and implementing the September 2002 Guidelines than some of my fellow assessors. 19. On receipt of the 10 October 2003 notice of proposed cancellation I instructed my then solicitors to respond. They did so and their written response of 23 October 2003 is contained at document 6 of the respondent's documentation. I confirm the accuracy of the matters contained in that response. The 12 November 2003 Interview 20. On 12 November 2003 I was required to attend on an interview with Mr. David Barker, an employee and auditor of the respondent. 21. I note that the respondent's documentation contain what is said to be a transcript of the interview of 12 November 2003 at document 1 of their documentation. Whilst I accept that it contains a general summary of what I said at that interview, it does not accurately record the exact words that I spoke at that interview. 22. I had understood that the 12 November 2003 interview process would be in relation to the matters identified in the 18 March 2003 audit report. However that was not the case. In fact, throughout the course of that interview I was asked no questions about the assessments which were the subject of the 18 March 2003 audit. Instead I was provided with additional assessment records for the following applicants' assessments: (i) Rowlands dated 8 November 2002; (ii) Allan dated 18 November 2002; (iii) Deans dated 8 November 2002; (iv) Arnold dated 8 November 2002; (v) Flynn dated 8 November 2002; (vi) Norris dated 8 November 2002; (vii) Pilcher dated 8 November 2002; and (viii) Korshoonoff dated 8 November 2002. 23. All of these applicant's assessments pre-dated not only my receipt of the 18 March 2003 audit report (which was not until 14 October 2003) but even the report itself. This makes it clear that I was never given the opportunity to improve my practices as set out Auditing Guidelines referred to above before being ambushed by the further alleged deficiencies from the 8 November 2002 assessment process. 24. In the course of the 12 November 2003 interview I attempted to explain to Mr. Barker that when I conducted the assessment on 8 November 2002 I would do my best to ensure that applicants were fairly assessed by myself. I note that the Guidelines allow for an assessor to clarify any written answer provided by an applicant in the course of an assessment (see page 23). 25. I accept that I did not properly record the additional verbal responses and clarifications obtained from applicants in the 8 November 2002 assessments. Had an auditor attended on my assessments at any time in the course of the audit process they could have directed me to improve this record keeping aspect of my assessment processes. Of course no auditor ever did attend on any of my assessments. The Audit Report of 18 March 2003 26. I accept that there were certain deficiencies in my Accreditation Assessment processes as identified in the audit report of 18 March 2003. As set out above I have continued to work to improve my Accreditation Assessment processes since that time. 27. However many of the errors identified related to the manner in which I conducted assessments. This included how I clarified matters with applicants during the assessment process when their initial answer appeared incorrect or they had failed to provide workings. I note again that the conduct of my Accreditation Assessments was never audited by the respondent in accordance with the requirements of the Guidelines. If the respondent had complied with the Guidelines in conducting my audit and attended on even one of my assessments they would have been readily able to check for themselves the way I conducted the assessments - but they never did. 28. I also note that the Audit Report of 18 March 2003 identified errors in five applicants' assessments from the 20 records I supplied. Of the five assessments it assessed that I conformed with 85.2% of critical criteria. I accept that this makes clear that I needed to improve my assessment processes. I have since done so to the best of my ability notwithstanding the fact that I did not receive the audit report and recommended improvements until the cancellation process commenced in mid-October 2003. The Document entitled "Assessment records of Wayne McKellar dated 3 March 2004" 29. I do not accept all of the alleged deficiencies identified in the document headed "Assessment Records of Wayne McKellar" filed for the respondent in 3 March 2004. This document contains references to only two of the documents that were found to be non-conforming in the March 2003 audit report. It also contains references to some of the 8 November 2003 records identified above which were provided to me in the 12 November 2003 interview. In addition it contains references to yet further documents from October to November 2003 that were not the subject of either the 12 November 2003 interview nor the 18 March 2003 audit report. 30. I do not understand how the respondent can continue to move the goalposts of the "audit process" by alleging further deficiencies when they have never given me the opportunity to respond to the initial proposed corrective actions identified in the 18 March 2003 audit. 31. The alleged deficiencies in the additional records from October to November 2003 do not relate to any errors of substance in the answers provided by the applicants. The deficiencies identified relate to certain errors or omissions in the Notices of Satisfactory Assessment (NSA's). These alleged deficiencies would not be considered of such importance as would require cancellation of my accreditation. 32. An example of an error identified in the October to November 2003 papers is that I failed to record Mr. Gorey John Veigal's date of birth on the NSA. I admit this. 33. Another example of an error identified in the October to November 2003 papers is that I incorrectly recorded Mr. Ryan John Jenkin's surname on the assessment summary as "Jekin" rather than `Jenkin'. I admit this. 34. Another example of an error identified in the October to November 2003 papers is that I did not tick the "competent" box at the bottom of the NSA form for Mr. Gale. I admit this. However I note that at the top of the form I certified that Mr. Gale was competent. Summary 35. I do not accept that I have been treated fairly or lawfully in the auditing process. The auditing process conducted by WorkCover failed to comply with Guideline 4 of the Auditing of Assessment Activities contained in the Guidelines for Certificate Assessors of 1 September 2002. I was never provided with an opportunity to know in advance of my cancellation, what deficiencies were alleged by WorkCover and what steps I was required to take to remedy the alleged deficiencies. WorkCover did not conduct the first audit in accordance with the Guidelines and never conducted a second audit as required by the Guidelines. Cancellation of Accreditation 36. On 19 November 2003 my accreditation was cancelled following an internal review by WorkCover. Effect of Cancellation 37. My WorkCover accreditation has provided the bulk of my income for the past two years. I obtained the accreditation following a workplace injury that has kept me from performing my previous duties as a rigger. The accident occurred in 1996 and at that time I had been working as a rigger for some seventeen years. I have obtained some employment in Queensland on the strength of my training qualifications with Skills Training Mackay which is the first time I have been able to obtain full time secure employment since my injury. Annexed hereto and marked with the letter "B" is a copy of a letter confirming the position. If I lose my accreditation I will be unable to take the position." 18 Mr. Shoebridge's submission is that the nub of Mr. McKellar's case is that while he conceded much of the alleged errors, WorkCover never followed the guidelines with respect to the procedure for an audit. In essence, his case is that the Guidelines provide that a WorkCover audit is to be carried out in two parts. The first is to have an auditor attend an assessment and note how the assessor conducts the assessment. The second part is to assess a number of records to evaluate how well the Assessment Instruments and Guidelines have been followed. It is not disputed that no WorkCover auditor ever attended to observe an assessment process carried out by Mr. McKellar. 19 There are two possible audit results; conformance or non-conformance. Mr. Shoebridge submitted that the outcome of an audit should be the identification of problems and the determination of how the problems can be corrected. Following the audit there is an obligation to prepare an audit report. The only audit that WorkCover undertook was in mid March 2003, however Mr. McKellar was not given the audit report until mid October 2003. Mr. Shoebridge urged the Tribunal to note that all the errors that WorkCover has identified were prior to the time that Mr. McKellar received the audit report and that all the substantive problems were prior to the audit itself. 20 Mr. Shoebridge also submitted that the guidelines provided that if there is significant non-compliance, an additional audit is to be carried out. The purpose of the audit report is to set out to the assessor what must be done in order to come into conformance. The additional audit is to establish that corrective action has been taken. The WorkCover procedures have been seriously flouted. Mr. McKellar did not receive that audit report until seven months after the audit and he was never given the opportunity to go back and address the problems. Therefore the hearing before the Tribunal does not extinguish defects in the procedure. 21 Mr. Shoebridge referred to the obligation to comply with the guidelines imposed by clause 287(1)(d) of the Regulation and the possible consequences of failure to do so. The guidelines include clear unambiguous provision for a mandatory two-stage audit process and compliance with the guidelines will avoid pre-emptory cancellation by WorkCover. 22 Mr. Shoebridge submitted that on an objective reading of the guidelines it is not open to draw a distinction with respect to the application of the guidelines to critical performance and non-critical conformance. The guidelines are produced pursuant to the Regulations. The legislation and the guidelines are silent as to whether or not WorkCover is to be bound by the guidelines, however the Tribunal should assume that WorkCover was aware of the purpose to be served by those guidelines. It is clear that an assessor is bound by the guidelines but they also impose obligations on WorkCover. In circumstances where Mr. McKellar's livelihood is at stake, the guidelines should not be construed so as to find that Mr. McKellar is bound by their detrimental aspects without having the benefits of the auditing process. Nature of proceedings 23 The Tribunal's role is that of merits review, not judicial review. If an applicant maintains that an administrator has not applied the principles of procedural fairness in coming to a decision, his or her only recourse would be to the Supreme Court for a judicial review of the decision. The Tribunal "stands in the shoes" of the original decision maker and makes the decision again. Section 63(1) of the ADT Act states that the Tribunal "is to decide what the correct and preferable decision is having regard to ... (a) any relevant factual material, and (b) any applicable written or unwritten law." 24 It is well established that these are not adversarial proceedings in which Mr. McKellar carries an onus of proof. Mr. McKellar does not take on the responsibility of having to prove a case, nor does he cause WorkCover to have to prove a case. Mr. McKellar and WorkCover are before the Tribunal as parties by virtue of section 67(2) of the ADT Act. The Tribunal makes its own decision in place of WorkCover's, and there is no presumption that WorkCover's decision is correct. 25 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as either to confirm the original decision, vary it, or set it aside and substitute another. "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 26 Therefore, I must consider all relevant circumstances and the subject matter of Mr. McKellar's alleged contraventions is a highly relevant consideration. Findings Generally 27 Mr. McKellar's case is essentially that WorkCover did not follow the established procedure, and therefore he has been denied procedural fairness, and that this defect cannot be cured by the Tribunal application. As indicated above, Mr. McKellar's only recourse would be to the Supreme Court for a judicial review of the decision. This view is consistent with those expressed by the Tribunal's President O'Connor K DCJ in Williamson -v- Director General, Department of Transport [2002] NSWADT 36 where he stated at paragraphs 11 – 12: "11 Another set of considerations that Mr. Hughes has brought forward today … concern alleged denial of procedural fairness. Those issues are ones that I would think in principle could be raised in a stay application; but we would need, I think, quite substantial evidence before we formed any view as to whether they are relevant to our determination of the application. 12 There may also be a question about how far we should get down that track, given that our charter is more concerned with the correctness of the ultimate decision than it is with issues of procedural fairness. There is a distinction between the merits review role of a Tribunal like this, and the review role of the Supreme Court. So it seems to me in principle that one should give some consideration to procedural fairness objections but it may be that we should be guarded in how far we go in that area." 28 The Tribunal's President expressed similar views in Ybasco v Director-General, Department of Transport No.2 [1999] NSWADT 85 where he stated at paragraph 27: "27 Some Comments on the Role of Tribunal in relation to Challenges to the Underlying Validity of Administrative Decisions: I have indicated in the recent decision, Doyle v Commissioner of Police [1999] NSWADT 84, that the Tribunal should not readily allow itself to be distracted from its primary statutory role of providing a forum for merits review by becoming engaged in examining objections relating to the underlying validity of the administrative conduct giving rise to the decision. Questions of underlying validity are ordinarily more appropriate to be dealt with by way of judicial review." 29 Accordingly, the Tribunal's role in these proceedings is to determine the correct and preferable decision on the material before it. Therefore I need not determine whether there is a legislative requirement for WorkCover to comply with the guidelines. 30 The alleged breaches are not contested to any significant extent. On the evidence before me I find as a fact that the offences occurred as WorkCover has alleged. 31 Mr. McKellar's challenge appears to be the significance of those breaches and the efforts that Mr. McKellar had made to address the concerns that WorkCover had identified. The evidence as to those efforts is limited to Mr. McKellar's assertion that the alleged offences had all occurred prior to the time when he had been given a copy of the audit report, and that all the substantive offences had occurred prior to the audit. It is submitted that from this it can be deduced that Mr. McKellar had varied his approach to carrying out assessments when he was alerted to WorkCover's concerns. I do not share Mr. Shoebridge's confidence that this is the case. 32 Notwithstanding Mr. McKellar's assertions, I agree with WorkCover's assessment of the gravity of the offences. There can be no doubt that an assessor provides an avenue whereby those persons being assessed can gain entry into high-risk occupations. It is vital that assessors are able to perform their duties in a competent manner and keep accurate records of the assessments carried out. It is equally important that the assessment process is carried out in a transparent consistent manner. For these reasons it is important that assessors comply strictly with the prescribed guidelines and assessment instruments. The legislative scheme envisages that WorkCover can rely on an assessor's documentary records as part of its audit process. Accordingly, if any part of the assessment process is done orally it must be accurately recorded. Otherwise it would be practically impossible for WorkCover to carry out an audit without standing behind the assessor. While the guidelines clearly provide for some observation of an assessor by a WorkCover auditor, the supervisory role undertaken by WorkCover should not require continual reassessment of the assessor's capabilities. 33 Mr. McKellar has conceded that the audit assessment recorded that he conformed with 85.2% of critical criteria. I accept WorkCover's submission that the legislative scheme envisages 100 percent conformity for critical criteria. There will be a serious erosion of public safety if assessors are permitted to continue in that role in circumstances where are they are unable to perform at the level required by the scheme. In my view, there is the potential for dire consequences if assessors who are unable to perform to the appropriate level continue to be accredited. It is vital that assessors understand their obligations and are able to satisfy critical performance criteria. The evidence suggests that at this stage Mr. McKellar does not meet these requirements. 34 On the evidence before me, I cannot be satisfied that Mr. McKellar has the ability to carry out the duties of an assessor to the standard required. Accordingly, WorkCover's decision to cancel his accreditation should be affirmed. 35 I make no negative findings in regard to Mr. McKellar's character. Nor am I satisfied that Mr. McKellar has acted otherwise than in good faith in carrying out his duties as an assessor. I have no evidence before me on which I am able to determine the process that must be undertaken to obtain accreditation as an assessor. I am therefore not in a position to comment on what steps Mr. McKellar could reasonably be expected to take in order to regain his accreditation. However, given that the guidelines clearly identify an audit process in which an assessor can be advised of their failure to comply with the legislative requirements and be given an opportunity to address those failings, it seems to me that it is intended that there is some scope for assessors to develop their knowledge and skill base while carrying out assessor functions. I would encourage WorkCover to provide Mr. McKellar with a reasonable opportunity to undertake whatever training is necessarily to develop his knowledge and skills with a view to regaining his accreditation. Order 36 The decision of the WorkCover Authority of New South Wales to cancel the accreditation of Wayne Allan McKellar is affirmed.