The reasonableness of an employer's disciplinary action under s 11A(1) of the Workers Compensation Act 1987 (NSW) is to be assessed objectively by reference to facts known or ascertainable at the time the action was taken, not by reference to subsequent events or their consequences. Under the amended s 352(5) of the WIM Act, a Presidential member cannot overturn an Arbitrator's evaluative finding of reasonableness merely by preferring a different view of the facts; the Presidential member must identify a genuine error of fact, such as the overlooking of material facts or the giving of undue weight to irrelevant matters. Where the Arbitrator's finding is one of evaluative judgment, the scope for appellate intervention is limited.
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