Ashcroft v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 117
•15 June 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Ashcroft v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 117 |
PARTIES: | Ashcroft, Angela Mary v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/78 |
PROCEEDING: | Appeal against a decision of Simon Blackwood |
DELIVERED ON: | 15 June 2015 |
HEARING DATE: | 23 June 2014 - 27 June 2014, 17 December 2014 - 18 December 2014 Respondent's Written Submissions in Reply (7 April 2015) Appellant's Reply to Respondent's Written Submissions in Reply (13 April 2015) |
MEMBER: | Deputy President Kaufman |
ORDERS : | 1. That Appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the Respondent's cost of, and incidental to, the appeal in an amount to be agreed between the parties or, failing agreement, on application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION – APPEAL AGAINT DECISION – whether reasonable management action taken in a reasonable way - worker's perception of reasonable management action - bullying - harassment - excessive workload |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 |
APPEARANCES: | Mr L. Ashcroft on behalf of the Appellant. Mr A. McLean Williams, of Counsel, directly instructed by Ms M. Mees, Workers' Compensation Regulator. |
REASONS FOR DECISION
The appellant, Angela Ashcroft, sustained an injury of a psychological or psychiatric nature whilst she was employed by Careers Australia Group Pty Ltd (CAG) at its Salisbury campus. The injury arose out of, or in the course of, her employment, which was a significant contributing factor to the injury.[1]
[1] Respondent's written submissions, p 21.
The appellant made a claim for compensation under the Workers' Compensation and Rehabilitation Act 2003. Her application was accepted by WorkCover Queensland, but rejected on review by Simon Blackwood, Workers' Compensation Regulator. The appellant has appealed against that rejection.
The regulator has accepted that the appellant suffered an injury as defined by section 32(1) of the Act and also that the injury arose out of, or in the course of, the appellant's employment, which was a significant contributing factor to the injury. Dr Karen Chai, the appellant's general practitioner, stated that the appellant had experienced an "emotional breakdown, from workplace bully" and diagnosed her condition as being one of depression. A psychologist, Dr Ursula Ortel, essentially concurred with the diagnosis of Dr Chai. Having regard to that evidence, as well as that of the appellant, I consider that the concession made on behalf of the regulator was appropriately made and I am satisfied that the appellant sustained a psychiatric or psychological injury which arose out of, or in the course of, her employment with CAG, and that the employment was a significant contributing factor to the injury.
The issue to be decided in this appeal
The case was conducted on the basis that Ms Ashcroft's injury arose out of, or in the course of, her employment with CAG and that it crystallized on 17 June 2013, the day before she presented at her general practitioner's rooms complaining that she had been bullied, accused by her superior for something that she had not done and that she had had an excessive workload for approximately seven months.[2]
[2] Exhibit A12.
In those circumstances, the only issue to be decided is whether the appellant's injury arose out of, or in the course of, reasonable management action taken in a reasonable way by CAG in connection with the appellant's employment, or her expectation or perception of reasonable management action taken against her.[3]
[3] Workers' Compensation and Rehabilitation Act 2003, s 32(5).
Background
The appellant commenced her employment with CAG as an "educator" on 23 April 2012. She had been initially employed at the Bowen Hills campus where she taught one counselling and community services class per week. There was another educator, Kathy Ross, at the Bowen Hills campus with whom the appellant did not get along, having previously worked and clashed with her at TAFE, Yeronga. In late 2012 CAG decided to introduce the counselling and community services course at its Salisbury campus, where it had previously only taught a business course. The appellant accepted an offer to teach the course at Salisbury. She began to teach one class at Salisbury on about 12 November 2012.
On about 19 December 2012 the appellant had some discussions with her manager, Mr Tiano Frank Sgualdino, a diploma manager in business, management and counselling and community services, wherein they agreed that the appellant would take on a second class. She said that she was prepared to do so for a short time. In order that she could take the two courses some changes were made to her teaching schedule. The classes were to run over two days each instead of two and a half days, the last day, which was Friday, was to be used for miscellaneous duties on the part of the appellant.[4]
[4] T4-73.
Whereas the first class had been held in a classroom in what is known as "Entrance 5", due to shortage of space, the second class could not be conducted there and, at the appellant's request it was agreed that both classes would be conducted in a room in "Entrance 8". Significantly, there was no access to CAG's internet system from the classroom in Entrance 8. It was anticipated that internet access would be provided reasonably soon after the second class commenced. Another reason that, the two agreed that the appellant should teach her classes in Entrance 8, was that the appellant had indicated her preference for working within an area allocated purely to counselling and community services.[5] It was made clear to the appellant that the area did not yet have internet or WiFi access however Mr Sgualdino indicated he could assist with the provision of other resources such a personal laptop with internet access.[6]
[5] T4-75/1.
[6] T4-75/10 - T4-75/15.
The injury
In compliance with a directions order, the appellant provided a list of the events that she contends contributed to or caused her to suffer her psychological/psychiatric injury. The statement relevantly reads:
STATEMENT OF STRESSORS
In accordance with the Further Directions Order dated 25th March 2014 the following points clearly outline the work events that caused my psychiatric/psychological injury:
| No. | DATE - (dd/mm/yy) | EVENT – Short description of the work events including the name of the person involved that caused your psychiatric/psychological injury. |
| 1. | From 21st January 2013 to 5th June 2013 | Stressor One: Excessive Workload – taking two full-time CCS classes · I was the only CAG trainer to be deliberately deceived, coerced and threatened into taking on two full-time jobs (two full-time Counselling and Community Services classes). · In addition to taking on double the workload (face to face teaching) of any other teacher in the Counselling and Community Services (CCS) course. CAG management, knowingly and willingly allotted no time or support for marking, re-sits, or other student examination/catch-up which for a “single class” teacher is allocated 1.5 days per week (2.5 days teaching, 1.5 days marking and preparation time). · This equated to fitting in eight days of teaching into four actual work days (a workday is typically 7.6 hours, this equated to over me doing 60.8 hours of training per week, compared to a typical CCS trainers workload of 30.4 hours) plus I also had to deliver the Information Sessions for the Diploma of Counselling and Community Services every Friday. I began taking two full-time Counselling and Community Services classes from 21st January 2013 until 5th June 2013. I had however been delivering the Information Sessions on Friday from the beginning of January 2013. · All requests and advice to Careers Australia Group (CAG) Management was either ignored or dismissed. CAG management knew the workload and the delivery schedule of the CCS course was 2.5 days training and 1.5 days marking/re-sit and preparation time. This was set by the course schedule and government department obligations as well as CAG management. CAG Management knew the workload for one trainer was unsustainable and that I was not coping, they were advised many times, they ignored this advice. |
| 2. | 9th January 2013 to the 5th June 2013 | Stressor Two: CAG did not provide equipment to deliver the course curriculum · From 9th January 2013 to the 5th June 2013 I provided all my own equipment, i.e. laptop computer, projector and speakers (I was given a projector that worked by Mr Sgualdino on 28th May 2013), however I still had to provide my own laptop and speakers. While CAG management claimed to provide a laptop it did not work. As a result the only appropriate option was to provide my own laptop and speakers (long term) and projector (short term), to deliver the course material and keep to the tight schedule. · CAG offered no support in the setting up, securing, or transport of this equipment. · My laptop had to be set up again once I arrived home because I needed it to continue my CAG work, i.e. sending out emails to students and their power-points, answering emails to other staff members and ordering my printing through AJ at Bowen Hills. · No other trainer had to provide their own equipment, answer emails at night (due to no WiFi or computer access in class) or order printing in their own time. · CAG Management was advised of the requirement for WiFi and the lack of the equipment in the “Entry 8 Building” – they ignored this stating for weeks then months that the WiFi would be supplied, but it was not until June 2013. **To deliver the course material, trainers are to follow the power-points that are designed to cover the contents of the unit descriptions provided by DEEWR and trainers must follow the activities (both online and paper), the DVD's and Youtube videos which are included to cover the performance criteria of the unit description of the unit. To ensure the course is audit compliant with the accreditation standards required to maintain registration of the course as 'nationally accredited” each performance criteria of each unit must be included and assessed. |
| 3. | 9th January 2013 to 14th June 2013 | Stressor Three: CAG did not provide WiFi · I taught without WiFi from 9th January 2013 till the 17th June 2013. · The CCS course required Youtube videos which were used in all of the counselling units to demonstrate counselling skills. · Without WiFi the students could not do any of the online exercises that were required to be done as part of the curriculum · To ensure the students could watch the Youtube videos and engage in class discussion I would have to download the youtube videos at home during my evenings and/or week-ends and then burn the youtube videos to a dvd to show the students the following day in class. · NO other trainer had to do this, as every other Counselling and Community Services trainer had access to equipment and WiFi in their classroom. · I had to order 34 units of printing (for 55 Students) and most times collect this printing myself. · NO other CCS trainer had to order more than two units of printing, (because all other trainers had access to WiFi in their classrooms) and no other trainer had to collect the printing themselves using their own private transport. |
| 4. | 12th November 2012 to 17th June 2013 | Stressor Four: CAG did not provide teaching resources: DVD's, textbooks and Exercise Books for the students · I provided all my own teaching resources: textbooks, DVD's exercise books from 12th November 2012 to 17th June 2013 (I understand after I went on WorkCover leave, some textbooks were delivered to the Salisbury Campus) · When I arrived at Salisbury I notified Mr Sgualdino of the necessary teaching resources required for the delivery of the Counselling and Community Services diploma, these requests were ignored. These resources ought to have been ordered before the first CCS class began on 10th October 2012. · Seven DVD's were required to cover the CCS course content, these DVD's were used across all other campuses as teaching resources and were used to demonstrate different counselling styles and approaches. Mr Sgualdino did not order these vital teaching resources despite being advised numerous times of their need. · The textbooks issue was the same: many of the readings and exercises were taken from the textbooks, in the other campuses; they had approximately 30 - 60 of each textbook to lend out to students. · No other trainer had to purchase their own textbooks, and DVD's to deliver the course material. At every other campus the campus manager had ordered the relevant and necessary training resources. No other trainer had to photocopy the relevant pages from the relevant textbooks in order to deliver the course curriculum |
| 5. | 21st January 2013 to 5th June 2013 | Stressor Five: No support and additional duties in addition to the two full-time classes · In my email dated the 12th January 2013, I stated that I would take the second counselling and community services class for one or two weeks at the most until Mr Sgualdino could employ another trainer. · I also ask about clarification for teaching resources. · Mr Sgualdino stated that he would ensure I had all the support I needed until he employed a second trainer to take the second CCS class but this did not happen. · Ms Jobson continually complained about me using the photocopier to Mr Sgualdino, and Mr Sgualdino (contrary to his claims) did not give me special privileges regarding photocopying. As such I was forced to do my own photocopying at OfficeWorks. · No other trainer had to do this. · CAG management stated they (Mr Sgualdino) would provide a fridge for the students to keep their lunch and milk. This did not eventuate and as such I was required to buy an esky and HAD to get ice each morning on the way to work. This was meant to be a temporary arrangement as Mr Sgualdino and Ms Jobson had promised that a fridge would be provided in a 'few days' but the student's fridge was never delivered. No other trainer had to purchase ice on the way to work. · No staff members assisted me to carry my equipment to and from my car to the classroom. · At the beginning of April I asked to move my classes to the Entry 5 Building to reduce my workload and so that I did not have to carry my equipment in and out of the classroom every day. Mr Sgualdino said yes and I arranged for students to come in and help but Mr Finlay over-rode Mr Sgualdino's decision and so the students and I had to unpack everything again and remain in the Entry 8 Building without WiFi and equipment · As we did not have a kitchen area in the Entry 8 Building, I had to clean up the area the students used as a kitchen (two desks in the corner of the classroom) …..no other trainer had to do this. · Ms Jobson refused to follow up the students 'BlueCards' that they needed before they went on placement. So I worked with Ms Cozi Monk to finalise this for the students. · As I had two full-time CCS classes, for me to be told by management to deliver the Information Sessions every Friday was unreasonable. I had no time to do marking, the practical student role-play assessments, answer emails to other staff and prepare my teaching materials. · I could not take advantage of any downtime to conduct or complete administration tasks, (i.e. emails, etc) because my classroom did not have WiFi. Furthermore, while there were computers in the small staffroom (at the time there were two computers to be shared among five staff, later another two desk computers were installed in the staffroom, but our staff numbers increased to eight). The only time I could answer my work emails was at home in the evening or on week-ends in my own time. I was the only trainer to be so disadvantaged. · When the email was sent out in late April/May that the codes for certain units had to be changed, I was given two or three weeks to get this done. This equated to me changing approximately: 385 Result of Assessment forms and the same number of assessment front and back covers, plus the printing of the updated forms and assessments. In order to complete this task I did much of the code changes over my sick leave when I took a week off to have my eye operation. |
| 6. | 10th January 2013 to 17th June 2013 | Stressor Six: Bullying by the Management Team · I was threatened by Mr Sgualdino into taking the two classes because he told me: o I had to justify my 'fifth' day of employment o Mr Sgualdino told me that the GM: Ms Margaret-Ann Goy would be instructing all CCS trainers to take two classes, this was not true. o When I said it was impossible to do two CCS full-time classes, Mr Sgualdino claimed that the course was being re-written, this was not true. · My requests for textbooks, DVD's and exercise books for the students were ignored. · Mr Sgualdino promised that the WiFi and equipment would be installed within two weeks. This did not happen. I (and the students) waited six months for the WiFi and equipment to be installed. · Mr Sgualdino refused my many requests to reduce my workload · Mr Finlay refused my requests to reduce my workload when he became the Operations Manager of Salisbury in April. · Mr Sgualdino told me often that if there were any problems in my class he would ensure I lost my job for being incompetent. · All my requests to find out when the WiFi and equipment would be installed was met with accusations that I was being belligerent and unco-operative. (my students were asking me on a weekly basis because they felt they were paying for a service they were not receiving from CAG) · When I spoke to Mr Finlay about reducing my workload he told me that all teachers take home some work, I explained that I had double the workload of any other trainer and working every evening till ten or twelve at night and fifteen hours on Saturday and Sunday. He refused to acknowledge my double workload and belittled my efforts to cope. · Ms Jobson did not verify a student's results when she transferred to the Salisbury Campus from Bowen Hills and results could not be found for units completed at Bowen Hills. Ms Jobson wanted me to get the students results to her, which I didn't have. Ms Jobson took the matter to Mr Finlay the Operations manager; I sought his advice regarding the missing assessments. Mr Finlay ignored my requests for advice and assistance and instead emailed Mr Sgualdino Friday afternoon, to tell me to get the marking to Ms Jobson by Monday lunchtime. I could not give Ms Jobson assessments that I did not have and were lost at Bowen Hills. I did offer to get other assessments to Ms Jobson if Mr Finlay would provide me with a trainer to take my class as clearly I could not do both Monday morning. My email was not acknowledged. No support or relief trainer was provided. · On her first morning (3/6/13) at the Salisbury Campus, and in my absence Ms Kathy Ross announced to my Monday-Tuesday class that I would not be their teacher for much longer, that she would be making changes and she introduced Mr Tim Horrick as their 'new' trainer. When I returned to class at lunchtime, I met Mr Horrick for the first time, I was not aware that new trainers were being employed. Mr Horrick told me that 'this was his class.'(he was referring to my class) · Ms Ross (under the guidance of Mr Finlay) called a marking audit, and told me on Tuesday (4th June 2013) morning that she wanted to audit all my marking before I went into hospital and to have it prepared and to her within 48 hours. (I was booked to have my operation on the 6/6/2013) · I received phone calls from my students while on sick leave that they felt I was going to lose my job based on what Ms Ross has said in class, many stated that she was interrogating them about me, and wanting them to say negative things about me. I emailed Mr Finlay regarding my concerns and cc-ed Ms Ross in to that email. · The first day I returned to work after my eye operation, the students of my Monday-Tuesday class had given Mr Finlay a petition. Mr Finlay came to the classroom to address all the students and during this conversation students asked him if I would remain as their teacher he said 'no' and when they asked if he was going to dismiss me, he said no, when they asked if someone else was going to dismiss me he refused to answer. The student's questions were based on the announcements made by Ms Ross in my absence on the 3/6/2013. · At approximately 3:15pm (the same day: my first day back from my operation), I was called from my class to a 'chat' by Mr Finlay. When I arrived at his office I found that Mr Robert Jurlina and Ms Jobson was waiting in his office for me to arrive. I was not given the opportunity to have a support person. Ms Jobson was not my support person. · Mr Jurlina accused me of not supplying the students with textbooks, (not my responsibility), I explained my requests were ignored. Mr Jurlina wanted to know when and dates of when these so called efforts were made”, I couldn't remember when I had sent the emails and Robert Jurlina scoffed and jeered. I felt belittled and stupid. · Mr Julina also accused me of being behind in my marking when I explained, it was not the marking it was the problem of having to change the codes of nine units and I couldn't cope with that on top of two full time classes. Robert Jurlina scoffed and jeered at me more, he dismissed and would not acknowledge that I had been doing until I went off on sick leave for my eye operation that I was doing double the workload of two trainers. · Mr Jurlina was trying to put words into my mouth about Ms Ross and saying that I didn't get on with her and that I wouldn't do what she asked me to do as was her right as a supervisor. I explained that I did not have a problem with Ms Ross, but I could not get all my marking and the code changes to her within 48 hours. This was unreasonable. · Mr Jurlina tried to blame me stating that I had put the student's up to doing the student' petition, and he kept going on about me putting the students up it, that the students wouldn't know these government departments unless I had told them. I did not know about or help the students with the petition · Mr Jurlina, Mr Finlay, and Ms Jobson ignored me saying I was feeling sick and dizzy, I had to hold on to my chair seat to stay upright, and still Mr Jurlina continued to question me, and when I couldn't remember he would scoff and snigger at me and smile at Mr Finlay. Mr Finlay told Ms Jobson to get me a drink of water, but the questioning continued. · When I left the meeting, I did say, I was leaving, and just walked out, I fell down the stairs outside the then staffroom, Ms Jobson knew I could hardly walk that I was obviously seriously ill. No duty of care regarding me getting home was considered. · The minutes of the meeting stated that I needed to keep up to date with my marking – no consideration was given to the fact that I was doing two full-time CCS classes. |
(Original emphasis)
It is readily apparent that there is considerable prolixity and overlap between some of the alleged stressors. It seems to me that they can conveniently be dealt with in three main groupings. Stressors one and five relate to the alleged excessive workload involved in teaching two classes and the paucity of the resources provided for the teaching of two courses. Stressors two, three and four relate to the alleged lack of teaching resources generally, and are closely interrelated with stressors one and five. Stressor six largely stands alone.
Workload
The appellant submits, by her statement of stressors (1 - 5), that she had an excessive workload because she was required to take two classes as well as being required to take on additional duties, without being provided with support and that CAG did not provide the equipment or teaching resources necessary to deliver the course curriculum, including the provision of WiFi.
The particulars of the stressors, as well as the evidence led in the proceedings, are somewhat overlapping and much of the evidence is irrelevant. The appellant is prolix in speech and, more particularly, in writing. See for example her emails, exhibits A3, A5, A27, A28 and R5. It has consequently been difficult to distill the relevant from the irrelevant. In an attempt to do so I have sought to set out the relevant evidence in the form of an appendix.
In so far as stressors one to five are concerned, the gravamen of Ms Ashcroft's complaint is that from 21 January 2013 to 5 June 2013 she was required to teach two full-time counseling and community services courses with insufficient resources and without adequate back-up or support. She asserts that she was deliberately deceived, coerced and threatened into taking on the two full time jobs. Other than the fact that the appellant taught two courses for the period in question, the evidence does not support her allegations of coercion.
Although the appellant initially agreed to teach two classes for a few weeks, as she considered the workload would be too high to sustain the two classes over an extended period of time, she did not avail herself of opportunities to relinquish one of the classes when opportunities presented themselves.
The appellant was wont to complain by email about her excessive workload and lack of resources, but in conversation with management representatives would indicate that she was coping and did not want to give up either class. She did not avail herself of opportunities to obtain assistance. For example, she could have accessed the internet by using computers other than her own, but she preferred to use her own notebook computer. She could have accessed the internet in other parts of the building when she considered that she needed to do so, or had her students do so when it was necessary to view various YouTube clips, or set the YouTubes as homework
Management Action
It is arguable that it was the very nature of the work itself, especially the teaching of two classes over a period of some six months as well as the nature of the resources provided to her to perform the work and the circumstances in which they were provided, which significantly contributed to Ms Ashcroft's injury. The action taken by management to seek to ameliorate the stress does not necessarily transform an injury that was caused by the stress of being unable to cope with the job itself into an injury that arose out of management action. Although “management” is ultimately responsible for how any workplace is run, that does not suggest that any injury that arises in the workplace does so out of, or in the course of, management action.[7] However, here the lines are somewhat blurred; CAG management was involved in dealing with the appellant's expressed concerns about her workload and lack of resources. As neither party sought to argue that Ms Ashcroft's injury did not arise out of, or in the course of, management action I am content to proceed on the basis that it did. The question to be decided is whether the management action was reasonable action taken in a reasonable way in connection with the appellant's employment. Insofar as this aspect of the appeal (stressors 1 - 5) is concerned, s 32(5)(b) of the Act is not enlivened, as no action was taken against Ms Ashcroft.
[7] WorkCover Corporation of SA v Summers (1995) 65 SASR 243 at 248, per Doyle CJ.
Was the management action reasonable and taken in a reasonable way?
There is no doubt that the teaching of two classes was considerably more onerous than teaching only one class. However, the evidence discloses that if one is organized and efficient, two classes can be taught without undue difficulty. Significantly, Ms Ashcroft, albeit she complained in her emails that she could not cope with teaching two classes for an extended period, on several occasions, mainly orally, expressed a desire to continue teaching two classes. In her email of 23 April 2013 whilst saying that her workload was too great she nevertheless expressed a desire to stay on for a further two months until 21 June 2013.[8] Management acted reasonably and in a reasonable way in those circumstances to have her continue teaching both classes.
[8] Exhibit A5.
A recurrent theme throughout Ms Ashcroft's case is the failure by CAG to provide her with WiFi. By this I take it she means the inability to connect to the internet from the classroom in Entrance 8. The evidence is that, albeit desirable, it was not necessary that she had such access from the classroom. I find that she was offered notebook computers that had a modem that would have enabled her to connect to the internet, but she preferred to use her own computer. She could have downloaded the materials she sought to use from the classroom in Entrance 5 or from home. She could have required her students to do the same or she could have set the tasks as homework. Similarly with the alleged lack of provision of textbooks, DVDs, readings, etc. These could have been obtained by her had she sought to do so through the facilities available at CAG, albeit there is some suggestion that the appellant placed an order on three occasions to no avail.
The evidence is dealt with in some detail in the regulator's written submissions at paragraphs 28 to 33, in regard to the alleged excessive workload occasioned by taking two classes and at paragraphs 38, 43 and 49 in relation to the lack of provision of WiFi, teaching resources, other facilities, etc. The regulator's analysis is largely accurate. I note that the appellant did not take issue with that analysis in her submissions.
Although Ms Ashcroft's complaints might have been managed better, for instance CAG could have insisted that she relinquish her second class earlier than she did, the events in question occurred during a time that the Salisbury campus was undergoing rapid expansion and suffering the sorts of teething difficulties that can be expected at such times. It would also appear that there was substantial demand for CAG's counseling and community services course. Whilst it might have been preferable that one of the new educators employed to take the new classes should have instead been employed to take over one of the appellant's classes, given Ms Ashcroft's oral indications that she was prepared to continue with the two classes, it is understandable that this was what transpired. Management action needs only to be reasonable and taken in a reasonable way. It need not be perfect.[9]
[9] Bowers v WorkCover Queensland [2002] QIC 18.
I find that insofar as stressors 1 to 5 are concerned the management action was reasonable management action taken in a reasonable way in connection with the appellant's employment.
Bullying
The appellant submits that the bullying that she suffered took place throughout the period of her employment at the Salisbury campus and is constituted by the events set out as stressors 1 to 5. I reject this submission. I do not accept that those events, or any of them, can properly be described as bullying. Although the appellant, from paragraph 235 of her submissions, identifies the characteristics of the bullying behavior she alleges was directed against her, the evidence does not make this out. My analysis of why the actions of management were reasonable is apposite.
The gravamen of the appellant's bullying claim seems to me to comprise the events occurring from the time that Kathy Ross introduced herself to the appellant's class on 3 June 2013. As the regulator submitted, the stressors are said to be:
• Kathy Ross told the appellant's class on 3 June 2013 that the appellant “would not be their teacher for much longer”, and introduced Mr Tim Horrocks as their new teacher;
• Ms Ross announced an audit into all of the appellant's assessments on the eve of the appellant going into hospital for eye surgery;
• The appellant was required to attend a meeting with Mr Findlay without a support person being present;
• The appellant had to meet with Mr Jurlina, and Mr Findlay, again, without a proper support person, without any notice of the meeting or advance notice of the reason for the meeting, and was asked questions about the student petition and her marking. In the process, the appellant contends that she was bullied by Mr Jurlina.
It is significant that once the appellant became aware that Ms Ross was moving to the Salisbury campus she began to look for a position elsewhere. Indeed, on the day that Ms Ross began at Salisbury, the appellant was at Southport in relation to a relocation to that campus. I infer that part of the stress the appellant was experiencing was due to the mere fact that she knew that Kathy Ross was to commence working at Salisbury. This is highlighted by a conversation the appellant had with her class some two weeks earlier when she told them that Ms Ross was coming and "to prepare for trouble", and that "Kathy wants to take over my marking and interfere with the way I run my class."[10]
[10] Exhibit R17.
I accept the regulator's submission that the primary bullying issues for the appellant seem to be:
• the incident in the appellant's classroom on 3 June involving Kathy Ross and Tim Horrocks;
• the contention that the marking audit was a 'witch-hunt'; and
• the meetings on 17 June 2013 first with Mr Findlay and then with Mr Jurlina and Mr Findlay.
The classroom incident on 3 June 2013
The appellant had gone to Southport for a job interview and hence was absent from the Salisbury campus that morning. This was also the first morning on the campus for each of Ms Ross and Mr Horrocks.
Ms Ross discerned hostility from some segments of the student body and defensiveness by them of their educator, the appellant, (Mr Horrocks did not notice this) yet she denied that anything was said by her to suggest that the appellant's job was in jeopardy. Similarly, Mr Horrocks' said that nothing adverse was said about the appellant by Ms Ross. Ms Uren gave an account of that day as well. In her evidence she said that Ms Ross did not behave unreasonably. Ms Uren also commented on the hostility in the class directed towards Ms Ross, and said that the students' pre-conception of Ms Ross (and of the institution's administration as a whole) had been formed on the basis of various adverse things that had been told to them by the appellant. Ms Uren eventually retracted her support for a student complaint in the form of a petition which was made after that day.
The contention that the marking/assessments audit was a "witch-hunt"
Ms Ross said that she was acting under instruction from Mr Findlay to conduct the audit, and that it was a campus-wide activity. This was confirmed by Mr Findlay, who said that he had required that a similar audit be conducted in all of the faculties at Salisbury and there was nothing sinister about it. Mr Findlay had sought to assure the appellant when he met her that the audit was not a witch-hunt or anything that was specific to her.
Ms Ross said that uploading assessment results onto VETtrak was of "paramount importance" due to regulatory requirements imposed by the Federal Government.[11] Mr Sgualdino was of a similar view and Mr Findlay said that student assessments should ordinarily have been logged onto VETtrak within a few days of submission of assessment items, by the students. This could not be done until the marking of students' work and their assessments had been completed.[12]
[11] T5-37/11.
[12] T5-88/14.
The concerns ultimately revealed by the marking/assessment audit about the appellant failing to complete items of assessment and then to submit them to Ms Kym Jobson for uploading onto VETtrak were legitimate. Mr Horrocks said that he, Maria Model, and Kathy Ross had to spend more than a week working together marking various items of outstanding assessment from the Appellant's classes that were, by then, more than 7 months overdue. Many items of assessment were found to be missing, and many students had to re-sit assessments. All of this was extremely unusual.[13] Ms Model gave similar evidence.[14] Indeed, she said there were mandatory assignment items that had not been distributed to students, such that the course had to be extended by several weeks to allow students to complete them. This was a real problem, and some students were offered full refunds.
[13] T6-88/33 - T6-88/40.
[14] T7-4/17; T6-88/25 - T6-89/13.
The marking audit was a clear stressor for the appellant. I accept the regulator's submission that in all likelihood her anxiety was caused, or contributed to, by the fact that she likely knew the audit process would reveal very significant problems in her work performance. I also accept the submission that the conduct of the audit process itself was an instance of reasonable management action taken in a reasonable way. CAG would have been derelict in its responsibilities to its students as well as to the educational authorities had it not acted.
The compliant/petition presented on 17 June 2013
On 17 June 2013 a complaint in the form of a petition[15] signed by some 12 of the appellant's students was presented to Mr Findlay, the Salisbury campus operations manager. This made some serious allegations about supposed deficiencies in the provision of "…necessary support services that we require to achieve the optimal outcome." It obviously required an immediate response.
[15] Exhibit A29.
The meetings with Mr Findlay and Mr Jurlina on 17 June 2013
Having regard to the student petition that had been delivered to Mr Findlay earlier that morning; as well as a meeting Mr Findlay had had that morning with the student petition representatives, Tammera Uren and Duat Tran, it was apparent that there was a potentially explosive situation that needed to be defused as a matter of urgency. Ms Uren's evidence, as well as the record of her discussion with Mr Findlay[16] and her subsequent letter to CAG,[17] and the record of discussion of the meeting between Ms Uren and Mr Jurlina later in the afternoon of 17 June 2013, disclose that there were serious issues involving the appellant that needed to be addressed.
[16] Exhibit R15.
[17] Exhibit R18.
Prior to his becoming aware of the petition, Mr Findlay met the appellant on 17 June 2013 to discuss the concerns raised about the audit and her job security in her lengthy 5 page e-mail of the preceding Friday[18].
[18] Exhibit A28
The delivery of the petition later that day made the need for a meeting with the appellant all the more pressing. Again, I accept the regulator's submission that it was entirely reasonable for Mr Findlay to speak with the appellant about these issues. I would go further and say that it was essential. This was again reasonable management action taken in a reasonable way.
The issues raised in the petition were significant, and it was entirely appropriate that Mr Findlay raise the matter with his superior, the State Operations Manager, Mr Jurlina[19] who then travelled to Salisbury to deal with the issue. It was also appropriate that Mr Jurlina speak with the appellant in order to discuss the issues raised in the petition, as well as the management team's appreciation of the situation within CCS at Salisbury (that was by then unfolding as a consequence of the assessment audit).
[19] T5-89/39.
In relation to the afternoon meeting with Mr Jurlina and Mr Findlay, the appellant primarily complains that she was not given proper notice of the meeting, or its purpose (such that she felt ambushed); that she was not allowed to select her own support person; and that she felt that (particularly) Mr Jurlina sneered at her; that they would not listen to her; and that Mr Jurlina was accusatory.
Mr Findlay said that Mr Jurlina's demeanor was entirely professional and that he himself said very little during the meeting, as his function was that of note-taker. He said that Ms Kym Jobson was asked to attend the meeting as another female, given that they were two senior male managers.
Ms Jobson said that there was nothing about the treatment of the appellant by either of Mr Findlay or Mr Jurlina during the meeting that was either unreasonable, or unfair, and that they did not ever "shut down" the appellant. She was afforded every reasonable opportunity to say her piece during the discussion.
Mr Jurlina said that the meeting was informal and non-disciplinary. Mr Findlay concurs with that assessment.
I prefer the evidence of Mr Findlay, Mr Jurlina and Ms Dobson supported by the contemporaneous note made by Mr Findlay to that of the appellant, whose evidence was given through the prism of her perception of having been bullied, on this issue, as well as others.[20]
[20] Exhibit R16.
Although the appellant complained that she had been bullied by Ms Ross she was unable to substantiate her allegations. There had been little opportunity for the appellant to interact with Ms Ross at Salisbury. Again, I accept the regulator's submission that, in the circumstances, convening the meeting was reasonable management action taken in a reasonable way and that the meeting, which was not a disciplinary meeting, was conducted in a reasonable manner.
Management, in each instance, acted reasonably and in a reasonable way.
Section 32(5)(b) is not attracted because, in my opinion, what transpired cannot be characterized as management action taken against the appellant.
If I am wrong, and it was, I find that it arose out of her perception of reasonable management action taken against her. Thus, to that extent, the personal injury is not an injury for the purposes of the Act.
It follows that the appeal must be dismissed, and the decision of the regulator confirmed. Ms Ashcroft is to pay the regulator's costs.
APPENDIX
Distillation of the Evidence
| From the Appellant's perspective | From the Respondent's perspective | ||
| 19/12/2012 | Staff Meeting - Appellant Sgualdino discuss taking second class. Appellant disputes whether she asked first to take the class or was asked of her.[21] Either way she agrees. | ||
| 12/01/2013 | After several discussions, appellant emails Sgualdino and says happy to take second class temporarily but this can only be a matter for a week or a two due to workload.[22] Appellant also deemed current applicants' qualifications unsuitable. Appellant says management ordered her do it.[23] Appellant says she was coerced and pushed by Sgualdino in taking two classes.[24] Sgualdino said she would be responsible if she did not keep her students happy.[25] | 12/01/2013 (approx.) | Says to Sgualdino that she was very happy to take on the second class.[26] Sgualdino emphasized it's quite a workload, however appellant's response was confident and positive.[27] Sgualdino felt confused about the contrary response in person but appellant continually reiterated her ability and confidence to take the second class.[28] |
| Note: Cheeseman commences at CAG around this time is and is given a third (new) class. Sgualdino says that he was given the third rather than appellant's second because they had a specific conversation about this and appellant wanted both.[29] | |||
| 04/02/2013 | The Appellant wants to retain second class as she had built a rapport with students and does not want to interrupt their training.[30] | ||
| 21/02/2013 | Appellant emails Sgualdino about workload, WiFi and fridge.[31] Note: The work load conversation is more geared towards a complaint that it's not fair she is taking two classes while others have one (rather than not coping). | ||
| 22/02/2013 | Appellant emails Sgualdino with marking workload. States "as you can see this is really snow balling out of control".[32] | ||
| 19/03/2013 | Appellant not coming in on Friday as tired and burnt out. Appellant says she now has every second Friday as a RDO as a result of her and Sgauldino's recent meeting.[33] | ||
| Appellant angry she has to get milk as well as perform her workload.[34] | |||
| 23/04/2013 | Appellant emails Findlay about her workload being too much.[36] She also refers to a conversation on the same issue she had with Sgualdino. Despite this she suggests that she stay on until 21/06/2013. | ||
| Late April | Findlay holds discussions. Appellant is insistent on keeping the class.[37] | ||
| 02/05/13 | Findlay alters appellant's working hours and confirms change via email.[38] The work hours in the email are Monday to Thursday 7.30am to 4pm and Friday 7.30am to 2pm. Findlay thanks the Appellant for her willingness and eagerness to make these changes for the better of the business. | ||
| 17/05/2013 | Appellant's requests not to be involved with Open Day.[39] | Cf: Sgualdino says that he was very accommodating to the appellant only asking when he couldn't find anyone else, and that she only assisted on approximately 6 open days.[40] | |
| Late May | Appellant undertaking reassessment of T. Gray. Appellant says she was under pressure by Jobson and Sgualdino to reassess her.[41] | 16/05 | Regulator suggested that she was already under pressure and had created another task for herself.[42] Sgualdino says to the effect: just provide Jobson with results student has completed with you.[43] She denied this was the only expectation of her.[44] |
| 30/05/2013 | Appellant says she 'never got the email'.[45] | Kathy Ross offers assistance to both appellant and Maria (both teaching two classes) with marking outstanding assessments.[46] Ross says she did not hear back from appellant.[47] | |
| 3 June 2013 | Appellant at Southport campus attending a job interview. Appellant in her email of 14 June[48] said she took numerous phone calls from students in tears, upset, panicking and threatening to leave the course because they believed she is going to lose her job based upon Ross's comments to the classroom. Appellant wants to transfer to another campus as soon as possible. When the appellant returned to Southport and walked into her class, Horrocks introduced himself to her as the new teacher of this class.[49] | Ross returns to Salisbury Kathy Ross's evidence. Horrocks' evidence Uren's evidence | |
| 04/06/2013 | The assessment/marking audit | Kathy Ross's evidence Findlay's evidence Exhibit R5 - 10 June 2013. Appellant writes an email to her students explaining that she is going through the marking now "and she has heard a number of people are concerned about being behind." | |
| 17 June 2013 | Appellant returns to work from sick leave.[67] The morning meeting The afternoon meeting I note that the appellant had very limited contact - two or three occasions, with Ross at Salisbury. | The morning meeting During this day the student petition is presented to CAG. The afternoon meeting | |
[21] T2-69/6.
[22] Ex A3.
[23] T2-5/10.
[24] T2-45/40.
[25] T2-46.
[26] T4-70/34; T4-73/34 – 40.
[27] T4-77/ 29 – 34.
[28] T4-78/43.
[29] T4-79/40.
[30] Sgualdino - T4-79/34 - 45;-- Findlay - T5-107/13 - 16.
[31] Exhibit A4.
[32] Exhibit A13.
[33] Exhibit A16.
[34] Exhibit A15.
[35] T2-45/36.
[36] Exhibit A5.
[37] T5-76/10 – 15.
[38] Ex A11.
[39] Ex A10;.
[40] T4-96/37
[41] T2-124/16.
[42] T2-123/44.
[43] Ex A27; T2-124/20.
[44] T2-125
[45] T2-108.
[46] Ex R10; Kathy says she knew it was hark working two classes, and wanted to help as much as she could T5-39.
[47] T5-39/33.
[48] Exhibit A28.
[49] T2-60/35.
[50] T5-40/40.
[51] T5-41/26.
[52] T5-41/32.
[53] T5-42/25.
[54] T5-43/10-40; T5-44/11.
[55] T6-80/35 - T6-81/6.
[56] T6-81/5 - T6-81/14.
[57] T6-24/31.
[58] T6-26/20.
[59] T2-59/46.
[60] T2-118/15.
[61] T2-109/4.
[62] T2-119/5 -T2-120/20.
[63] T5-465.
[64] T5-48/6.
[65] T5-50/30.
[66] T5-81/27.
[67] T2-26/26.
[68] T2-51/30-T2-51/45.
[69] T3-19/5 - T3-25/30.
[70] T5-86/42.
[71] T5-87/24.
[72] T5-87/43-T5-88/5.
[73] T5-94/9.- T5-95/5.
[74] T5-94/20.
[75] T5-98/11-15.
[76] T6-47/35.
[77] T6-48/1.
[78] T6-48/10; T6-48/35 - T6-49/21.
[79] T6-48/21.
[80] T6-48/29.
[81] T6-70/7.
THE INJURY
| 18 June 2013 | Dr Chai: Her work led to the injury, the main thing she told me was that she been bullied by her boss and was upset about it.[82] Diagnosis on certificate was "Emotional Breakdown from Bully'[83] |
| 27 June 2013 | Met with Dr Ortel on 27 June 2013 for an initial consultation reporting that she last worked 17th June 2013 and had been experiencing anxiety and stress since a meeting was held on that day.[86] Dr Ortel said it was the whole sequence of events which caused the injury that multiple stressors in the work place in conjunction with that meeting of 17 June contributed to her psychological injury.[87] |
[82] T2-14/18; see also Ex A12.
[83] T2-16.
[84] T2-20/40.
[85] T2-21/1.
[86] T4-10/36.
[87] T4-12/4 -T4-12/29.
RESOURCES
| Course at Salisbury was in its infancy.[88] Salisbury largely relied on Bowen Hills to provide resources, including photocopying.[89] | ||
| Exhibit A3 Appellant says missing a number of DVDs. At the time unit 1 required First Australians DVD. Unit 6 required a 1000-word essay identifying two different counselling strategies, based on a DVD showing three 20 strategies.[90] The class chose two.[91] Appellant said the above Unit 6 DVD she had to order from America shipped on emergency.[92] She had attempted to get copies from the other campuses but couldn’t because copyright regulation meant there could only burn one and she had to have it to do the assessment.[93] In Exhibit R16 (meeting minutes) appellant had placed an order for textbooks 3 separate times with no outcome. Exhibit A20 - Sgualdino says re: resources from Bowen Hills, "For your information, we need to start acquiring our own from now on" Tran's Evidence' At the orientation understanding was that textbooks, WiFi and material for the course to be provided.[94] The whole class spoke with both Sgualdino and Findlay.[95] When asked if they had class things like DVDs with Youtubes, handouts, workbooks, books of readings, all sorts of things that you needed to learn and Ashcroft gave you those things? Tran responded No. Ashcroft provide those stuff for us to study.[96] Appellant said she just did not have the time to complete the orientation to students (Ex R16). | Appellant knew the staff at Bowen Hills but suggests she couldn't do much as she lacked the 'authority' to order books, seems to put the blame on Sgualdino[97] Sgualdino was away for 5 weeks, mostly in February 2013 due to a broken leg but performed limited work from home.[98] Sgualdino: The appellant agrees, that at the end of the day the students did have the right resources because she had photocopies of the textbooks and she made arrangements for the Youtube videos.[101] However, she reiterated that she was 'not supposed to provide them'. McGuire's evidence Ross's evidence Findlay's evidence | |
| Photocopying orders could be sent through to AJ at Bowen Hills who would do the photocopying for Salisbury. Someone would have to come to collect. Appellant say she had 'sporadic' help having it delivered. For some reason, small photocopying orders needed to be done herself and she would do this at Officeworks.[105] | Ross said you could request photocopying for resources at Bowen hills. They could deliver it to you or you could go and get it.[106] Bowen Hills was couriering items to Salisbury. Staff sometimes had to pick things up. Trades people were also assisting by picking up material when they were in the Bowen Hills Area.[107] | |
| Appellant says that no one ever helped her unload her car.[108] Appellant says the students provided assistance in unloading to her.[109] | Jobson said she knew the appellant had assistance for four days but then told Jobson that she didn't want Brent helping her anymore because she found it disrupting.[110] Sgualdino said he had offered to help the appellant, he also offered that any of his teachers would assist her too. He was aware Brett and Graham offered their assistance but could not recollect or did not think they assisted her, apart from Brett possibly once.[111] Tran said the students would help Ashcroft move things from her car to the classroom.[112] | |
| In Ex R3 (16/02/2013) Appellant copies in Sgualdino and Jobson to email about getting resources and says Sgualdino and Jobson are 'extremely supportive in assisting me to prepare the delivery of materials for the counselling classes here at Salisbury". "And all of my inquries will impact on them to be worked through the changes together." The appellant said she wrote this because she did not want to criticise people.[113] | ||
[88] T2-80/42.
[89] T2-81
[90] T2-6/14.
[92] T2-36/45.
[93] T2-36/40.
[94] T4-6/5.
[95] T4-6.
[96] T4-50/19.
[97] T2-81/30.
[98] T2-82.
[99] T2-38/1.
[100] T4-110/15.
[101] T3-6/29.
[102] T6-12/25.
[103] T5-60/21.
[104] T5-84.
[105] T2-38/37.
[106] T5-52/7.
[107] T2-85/5.
[108] T2-85.
[109] T2-84/26
[110] T6/68.
[111] T4-85.
[112] T4-39/20.
[113] T2-117/28.
| Tea / coffee in area 8 was appellant's own idea with Sgualdino's permission.[114] Appellant concedes wouldn't have been in trouble with employer for not going to extra effort of purchasing esky and bringing ice but did it because she cared about the students and was in 'reliance' on Sgualdino's promise to get their own fridge.[115] Appellant - students put in a complaint to Jobson on 27/02 complaining they did not have WiFi or a fridge.[116] | Sgualdino: There was adequate provision for tea and coffee and fridge already in Area 5. But given the person the appellant is she wanted to provide probably an extra service or a more convenient service. But, again, it was a question of budget more than anything else.[117] Sgualdino says he did not stand in the way of the idea and did not promise her absolutely but rather he would look into it. Any conversations about the fridge were with the appellant, not the students.[118] |
| The existing student facilities (with tea/coffee and fridge) was 100 meters away in area 5. [119] Sgualdino says the distance is more 50/60meteres.[120] McGuire said it was roughly 60 to 80 meters but around 30 to 40 seconds walk.[121] | |
[114] T2-82/40.
[115] T2-84.
[116] T2-84.
[117] T4-86/35.
[118] T4-87.
[119] T2-83/5.
[120] T4-86/26.
[121] T6-6/41.
MILK/ESKY/FRIDGE
0
1
0