Cinix 1 Pty Ltd v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 51
•19 March 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Cinix 1 Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 051 |
PARTIES: | Cinix 1 Pty Ltd v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2014/262 |
PROCEEDING: | Appeal against a decision of the Workers' Compensation Regulator |
DELIVERED ON: | 19 March 2015 |
HEARING DATES: | 17 December 2014 |
MEMBER: | Vice President Linnane |
ORDERS: | 1. The Appeal is dismissed. 2. The decision of the Regulator dated 29 July 2014 is confirmed. 3. The Appellant is to pay the Regulator's costs of, and incidental to, the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - Whether worker suffered an injury - Whether employment was a major significant contributing factor to psychiatric or psychological injury - Whether injury arose out of, or in the course of, employment - Whether injury excluded because of reasonable management action taken in a reasonable way - Held Appellant had not discharged its onus - Appeal dismissed - Worker suffered an injury within the meaning of s 32 of the Act. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003, s 32 |
| APPEARANCES: | Mr R. Dickson, Counsel instructed by AE & Associates Law and Accounting for the Appellant |
Decision
Sharyn-Lee Ellison (Worker), sought workers' compensation for a psychiatric injury arising out of, or in the course of, her employment with Cinix 1 Pty Ltd (Appellant). Ms Ellison ceased work with Cinix 1 Pty Ltd on 18 March 2014 and consulted Dr Irene Jacovou, her general medical practitioner, on 19 March 2014. Dr Jacovou provided Ms Ellison with a medical certificate dated 19 March 2014 which certified that she was suffering from a medical condition and, as such, she was totally unfit for duty from 19 March 2014 up to, and including, 2 April 2014 (Exhibit 6).
Ms Ellison's claim was initially rejected by Workover Queensland (WorkCover) in its decision of 17 June 2014. Ms Ellison sought a review of that WorkCover decision and in its decision of 29 July 2014 the Workers' Compensation Regulator (Regulator) set aside the WorkCover decision and substituted instead a decision that Ms Ellison's claim be accepted in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 (Act). The Appellant now appeals that decision of the Regulator. In its Notice of Appeal filed 27 August 2014 the Appellant states that its "main ground of Appeal" was that the "injured worker's condition arose out of the exercise of reasonable management action undertaken in a reasonable way" and that s 32(5) of the Act operated to exclude Ms Ellison's condition from the definition of "injury" in s 32(1) of the Act.
At the commencement of this hearing the Appellant sought leave to introduce a document titled "Additions to Notice of Appeal". This was the first occasion that the Appellant raised issues in addition to their claim that any injury sustained by Ms Ellison was an injury to which s 32(5)(a) and (b) of the Act applied. The new issues were:
· that Ms Ellison had not suffered an injury within the meaning of s 32(1) of the Act; and
· that employment at the Appellant was not the major significant contributing factor to any injury sustained by Ms Ellison.
Independent Medical Examination of Ms Ellison
Ms Ellison had originally agreed to be independently medically examined by Dr Catherine Oelrichs, Psychiatrist, in December 2014. At or about that time Ms Ellison's treating Psychiatrist, Dr Simone Becker, had recommended that she be admitted to Belmont Hospital for a three week period. Arrangements were made for Ms Ellison to be released from Belmont Hospital to attend this independent medical examination. As it eventuated, Ms Ellison did not attend Belmont Hospital on this occasion and did not attend Dr Oelrichs for this scheduled appointment. The hearing of this appeal was scheduled to commence on 19 January 2015. As a result of the failure of Ms Ellison to attend the independent medical examination in December 2014 those hearing dates were vacated.
The Appellant then made application for Ms Ellison to be medically examined by Dr Oelrichs on 20 January 2015. By this time Ms Ellison was in the care of her treating Psychiatrist at Belmont Hospital. This application was granted and arrangements were made for Ms Ellison to be released from Belmont Hospital to enable the independent medical examination to be conducted by Dr Oelrichs. Dr Oelrichs provided the Appellant with a medical report dated 2 February 2015. Whilst including this medical report in its updated List of Documents, which it intended to rely upon at the hearing of this appeal, the Appellant did not ultimately rely upon Dr Oelrichs' medical report and did not call her as a witness. Dr Oelrichs' medical report was supplied to the Regulator and filed in the Industrial Registry in accordance with Direction 10 of the Further Directions Order issued on 11 September 2014.
Thus, I draw the inference that the evidence obtained by the Appellant, arising from the Order I issued on 14 January 2015 (that Ms Ellison be independently medically examined by Dr Oelrichs on 20 January 2015) would not have assisted the Appellant in proving that Ms Ellison had not suffered a psychiatric or psychological injury.
Onus of Proof
The Appellant bears the onus of proof on the balance of probabilities. In this regard the Regulator submitted that satisfaction of the onus of proof on the balance of probabilities requires more than a mere possibility that particular events occurred: see MacArthur v WorkCover Queensland.[1] The Commission must reach a level of actual persuasion that the particular events did occur: see Seltsam Pty Ltd v McGuiness[2].
[1] MacArthur v WorkCover Queensland (2001) 167 QGIG 100 at 101.
[2] Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at para [136] per Spigelman C.
It is conceded that Ms Ellison was a "worker" as defined in s 11 of the Act.
Legislation
Ms Ellison ceased work on 18 March 2014 and consulted her general medical practitioner on 19 March 2014, thus Ms Ellison's entitlement to compensation arose on 19 March 2014. Section 32 of the Act as at 19 March 2014 relevantly provides as follows:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if -
(a)for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
(b)for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
(b) the worker's expectation or perception of reasonable management action being taken against the worker.
Issues for Determination
The Appellant thus must prove one or more of the following:
(i)that Ms Ellison did not sustain an injury;
(ii)that any injury sustained by Ms Ellison did not arise out of, or in the course of, her employment with the Appellant;
(iii)that any injury so sustained was not one to which employment was the major significant contributing factor;
(iv)that the injury, being of a psychiatric or psychological nature, is one which arose out of reasonable management action;
(v)that the management action taken was both reasonable and taken in a reasonable way;
(vi)or, alternatively to (v) above, the injury arose out of Ms Ellison's perception of management action which was then being taken against her.
Witnesses
The Appellant relied upon the evidence of the following witnesses:
· Ms Jacqueline Neilson, the Appellant's Managing Director;
· Ms Karen Owen, the Appellant's General Manager;
· Ms Victoria Morrison, an employee of the Appellant who only worked with Ms Ellison for a two week period;
· Mr David Boxsell, an employee of the Appellant who also only worked with Ms Ellison for a two week period;
· Ms Jo-anne Nicholls, a high support officer employed by the Appellant; and
· Ms Priscilla Hovington, an employee of the Appellant and the daughter of the Managing Director;
whilst the Regulator called the following witnesses:
· Ms Sharyn Ellison, the worker;
· Dr Irene Jacovou, Ms Ellison's general medical practitioner; and
· Ms Shelley McQuade, a Clinical Psychologist.
Injury
Whilst the Appellant contended that Ms Ellison did not sustain an "injury" within the meaning of s 32 of the Act no evidence was adduced by the Appellant in this regard.
In her medical certificate dated 19 March 2014 (Exhibit 6) Dr Jacovou stated that Ms Ellison was suffering from a medical condition and would be unfit for duty from 19 March 2014 up to and including 2 April 2014. In her medical certificate dated 9 April 2014 (Exhibit 12) Dr Jacovou diagnosed Ms Ellison as suffering from an adjustment disorder with anxiety and depressive features and certified that Ms Ellison was unable to return to work until 24 April 2014 as a result of that injury. It is noted that Ms Ellison had been a patient of Dr Jacovou for nine years prior to the consultation on 19 March 2014.
In a consultation with Ms Ellison on 19 March 2014, Dr Jacovou records in her clinical notes that Ms Ellison was "very teary and stressed from work", her "anxiety symptoms over the last 6 months - getting worse", that Ms Ellison "had been excluded from things e.g. was not told that a work function was formal and apparently the boss had a hairdresser come to the workplace to do everyone's hair but Sharyn-Lee was not asked …", that Ms Ellison "always works over every Christmas alone and was asked apparently to clean the office and cupboards and the toilet window and door tracks", that she has been "having palpitations, chest pains like a cramp for a few seconds, pain in jaw but no arm pain, head races in the morning when has to go to work …". At that consultation Dr Jacovou diagnosed Ms Ellison as suffering an anxiety/adjustment disorder secondary to work stress given that Ms Ellison's ECG was normal and there was no ischaemia.
On 1 April 2014 Dr Jacovou's clinical notes reveal that Ms Ellison was "teary, has been down, sleeping better, doesn't want to get up in the morning, no appetite" and that she "can't face the fact of returning to face her employer". On this occasion Dr Jacovou indicated a diagnosis of adjustment disorder with anxiety/depression features seconary to work stress". At this consultation Ms Ellison apparently indicated that she would like to see a counsellor/psychologist but that she was not keen to start antidepressants. Dr Jacovou referred Ms Ellison to Shelley McQuade, a Clinical Psychologist.
Ms Ellison first consulted with Ms McQuade on 8 April 2014. On that occasion Ms Ellison apparently presented in a "distressed and tearful state, reporting depressed mood and heightened anxiety" according to Ms McQuade's medical report dated 2 December 2014 (Exhibit 16). At this consultation Ms Ellison was given the OQ 45, a self report measure that tracks emotional distress, interpersonal relations and social role functioning. Ms Ellison obtained a score of 103 which indicated that she was experiencing a moderately high level of distress. According to Ms McQuade's medical report, scores in this range are typical of patients who are treated in inpatient settings, community mental health centres and occasionally outpatient settings. Such individuals are reporting a high degree of disturbance and appear to be in considerable pain according to Ms McQuade.
Ms McQuade reported that even after 19 sessions of treatment Ms Ellison, on 27 November 2014, obtained a score of 143. This was a high distress level and indicated that there had been "reliable worsening of her distress over the course of treatment". Ms McQuade reported that whilst her initial diagnosis of Ms Ellison was an adjustment disorder with anxiety and depressed mood, her depression had worsened considerably since initial presentation. As at December 2014, Ms McQuade diagnosed that Ms Ellison was suffering a Major Depressive Episode given that she fulfilled the criteria for that diagnosis. Ms McQuade's opinion was that Ms Ellison's symptoms were not an aggravation of any pre-existing condition but rather had developed as a direct result of workplace stressors whilst she was employed by the Appellant.
In her correspondence to Dr Simone Becker, Ms Ellison's treating Psychiatrist, Dr Jacovou commences with the following:
"Thank you for seeing Sharyn-Lee, a 56 year old IT consultant who presents with gradually increasing symptoms of an Adjustment Disorder with features of depression and anxiety, first noticed approx. September last year but worse since March this year 2014."
Whilst the Appellant adduced evidence from some co-workers of Ms Ellison that she did not exhibit signs of emotional stress prior to 19 March 2014, such evidence does not displace the clear evidence of Dr Jacovou that, as at 19 March 2014 (the date of Ms Ellison's first consultation with respect to this injury), Ms Ellison was distressed and suffering from a psychiatric or psychological injury. As mentioned previously the Appellant adduced no evidence to the contrary. I thus find that Ms Ellison sustained an injury of a psychiatric or psychological nature being an adjustment disorder with anxiety and depressive features.
Major Significant Contributing Factor
I have previously mentioned Ms McQuade's opinion, expressed in her medical report dated 2 December 2014, that Ms Ellison's symptoms were not an aggravation of any pre-existing condition but rather had developed as a direct result of workplace stressors whilst she was employed by the Appellant. Dr Jacovou in her document dated 1 May 2014 (Exhibit 13), stated that the diagnosed condition of adjustment disorder with anxiety and depressed mood was "secondary to workplace stress, bullying and harassment". Dr Jacovou went further in that document stating that, at the time of the diagnosis, there were no "non-work-related" factors contributing to the diagnosis. In that document Dr Jacovou stated:
"Sharyn-Lee has no other non-work-related factors contributing to the diagnosis. I have known this patient professionally for nine years."
This was corroborated by the evidence of Ms Ellison herself. The only factors referred to by Ms Ellison that contributed to her psychiatric illness were factors arising in the Appellant's workplace. As Mr Sapsford, Counsel for the Regulator, submitted it "matters not that Ms Ellison may have had a fragile disposition or that she might have been pre-disposed to suffering a psychiatric injury". The "egg-shell psyche" principle was referred to in Sheridan v Q-COMP[3] in the following terms:
"In respect to psychological injury, there is an 'egg-shell psyche' principle which is the equivalent of the 'egg-shell skull' principle, compare State Transit Authority of New South Wales v Chelmer [2007] NSWCA 249 at paragraph 40 per Spigelman CJ. So long as the events within the workplace are real rather than imaginary, it matters not that they impact upon the claimant's psyche because of a flawed perception of events attributable to a disordered mind, compare Federal Broome Co Pty Ltd v Semlitch (1964) 110 CLR 626 at 643 per Windeyer J, Westgate v Australian Telecommunications Commission (1987) 17 FCR 235 and Q-COMP v Foote (2008) 189 QGIG 802 at 810."
[3] Sheridan v Q-COMP (2009) 191 QGIG 13.
The Appellant did seek to raise certain non-work related matters with Ms Ellison that may have caused her some concern at times during her life with the suggestion being that some non-work related matters may have contributed to her injury. None of those matters appear to have had any impact whatsoever on Ms Ellison during her time in employment with the Appellant. I instance the issue some sixteen years earlier concerning her biological father. The medical evidence was clear. There were no "non-work-related" factors contributing to the psychiatric or psychological injury suffered by the Appellant that was diagnosed on 19 March 2014. As Dr Jacavou's clinical notes of 19 March 2014 state, Ms Ellison's anxiety symptoms had existed for the last six months i.e. since around September/October 2013.
Given that there were no non-work-related factors identified by Dr Jacavou that contributed towards Ms Ellison's psychiatric or psychological injury, I find that the employment of Ms Ellison by the Appellant was the major significant contributing factor to the adjustment disorder with anxiety and depressed mood injury. The Appellant has thus failed to establish, on the balance of probabilities, that the psychiatric or psychological injury sustained by Ms Ellison was not one to which employment was the major significant contributing factor.
Arising out of, or in the course of, employment
The issues raised by Ms Ellison as contributing to her psychiatric or psychological injury all arose out of, or in the course of, her employment with the Appellant. Such issues included the following:
(i) the manner in which a meeting was held on 16 December 2013 wherein Ms Ellison was informed by Ms Neilsen that she was being considered for dismissal and ultimately issued with a warning;
(ii) the marginalisation of Ms Ellison in relation to access to the hairdresser and the dress code for the function on 18 March 2014 (to use Mr Sapsford, Counsel for the Regulator, description of the stressor);
(iii) the direction in relation to the spelling of the Appellant's products;
(iv) the transfer of Ms Ellison from the FlexiQuote product to the BodyNet product whilst still being required to perform work on the FlexiQuote product; and
(v) a conversation regarding the buying of presents for fellow workers.
I am thus satisfied that the psychiatric or psychological injury sustained by Ms Ellison arose out of, or in the course of, her employment by the Appellant.
Reasonable Management Action Taken in a Reasonable Way
A number of the Appellant's witnesses referred to the Appellant as a "family run" business even though the business had been purchased by a Malaysian IT company on or about 1 November 2010. Ms Neilsen was the Managing Director and Ms Owen the General Manager of the Appellant. Ms Owen's appointment as General Manager was made at or about the time that Ms Neilsen was required to spend a considerable amount of her time in Malaysia i.e. in 2012 and 2013. As Ms Owen stated, Ms Neilsen was away in Malaysia for some 200 days in 2012, and probably a little less, but something like it, in 2013. It would appear that only about ten persons were employed at the Appellant's business at any given time. It was Ms Neilsen who approached Ms Ellison in or about March 2011 in respect of a position with the Appellant. Ms Neilsen said that when offering Ms Ellison the position she had no discussion whatsoever about Ms Ellison's previous experience.
Ms Ellison was known to Ms Neilsen prior to her employment commencing on or about 30 March 2011. A letter dated 30 March 2011 outlines the terms and conditions of the offer of employment to Ms Ellison. The terms of that offer included the following:
· Ms Ellison was employed in the position of Software Consultant;
· she was to report to Ms Neilsen;
· her gross salary was $60,000.00 per annum (i.e. it included superannuation contributions and any time worked in excess of the ordinary hours);
· no overtime would be paid;
· she may be required to travel within Australia and overseas from time to time in carrying out her duties;
· her remuneration package would be reviewed annually;
· her performance would be reviewed on the job on an ongoing basis; and
· she was required to comply with the Appellant's policies and guidelines.
Whilst Ms Ellison was required to comply with the Appellant's policies and guidelines it became apparent during the course of the hearing that no such policies and guidelines had been developed by the Appellant and thus no such documents were available to Ms Ellison or any other staff member. It was the evidence of Ms Owen that on a couple of occasions Ms Ellison mentioned to Ms Neilsen that the Appellant should have "procedures and things like that". The response from Ms Neilsen was that if Ms Ellison wanted to do up some formal procedures for different things she could go ahead. Ms Owen indicated that Ms Ellison never developed any such procedures. In cross-examination Ms Owen, in giving such evidence, further commented that "[s]o as much training as we gave her, it was never then reciprocated" giving the impression of some annoyance on her part that Ms Ellison did not produce formal policies.
It was of course not part of Ms Ellison's Position Description (Schedule 1 to her offer of employment) to formulate policies and procedures for the Appellant. That Position Description outlined Ms Ellison's duties as follows:
"Provide support to clients on our PANEL software package, and perform other Help Desk duties. Resolve clients' minor hardware, Windows operating system & network issues. Plus other minor office duties such as CD duplication & Mailing to clients etc. Plus any other simple work as assigned by the supervisors."
The skills required of the person appointed to the position of Software Consultant, also outlined in Schedule 1 to that offer, were:
"Customer service exposure, with demonstrable client handling skill. Knowledge of personal computer operation and internet. Good spoken English."
During the course of the hearing there was no mention made of a PANEL software i.e. the software referred to in Ms Ellison's offer of employment. The only software mentioned was FlexiQuote and BodyNet. Ms Neilsen explained FlexiQuote as a software package for the panel-beating industry, being a business management system with an interface to the insurance companies - it produces quotes and it does payroll. The BodyNet software is also a package for the panel-beating industry but it is directed to staff scheduling and cost control.
It was Ms Neilsen's evidence that Ms Ellison started with the FlexiQuote package when she commenced employment on or about 30 March 2011. It is not known when the FlexiQuote software was introduced. It does however seem rather odd that the letter of offer is dated the same day that Ms Ellison commences employment and it refers to a software product that is not mentioned throughout the hearing and is different to the software package that Ms Ellison is required, by her offer of employment, to provide support to the Appellant's clients.
Capability of Ms Ellison: Given the evidence of most of the Appellant's witnesses, it is apparent that Ms Ellison struggled from the commencement of her employment in March 2011 until she ceased that employment on 18 March 2014 i.e. throughout the three years of her employment. Either that or some of the witnesses exaggerated their evidence considerably. Ms Neilsen said that from the day Ms Ellison started work her performance had not been up to scratch. Whist Ms Neilsen said there was some improvement in Ms Ellison's confidence following her attendance at the Melbourne Trade Fair (shortly after she commenced employment) her work performance had been consistently poor prior to Bevin Linnell raising concerns with her in December 2013. Mr Linnell was the senior person responsible for training Ms Ellison in the BodyNet software.
Ms Nicholls said that she did not have a very high opinion of Ms Ellison whilst Ms Hovington's evidence was that Ms Ellison turned sour when she went to work in a room with Mr Linnell and thought that she was affected by Mr Linnell's company i.e. after April 2013. Prior to that time, Ms Hovington's view was that Ms Ellison was alright.
A number of issues were raised during the course of the hearing which were relevant to an assessment of reasonable management action taken in a reasonable way. I will deal with those issues separately.
Training received by Ms Ellison: Ms Neilsen said that the Appellant provided Ms Ellison with in-house training of their software i.e. the longer a person is employed in the position the more questions the employee should be able to answer as the training improves. Rather than "training" I suspect Ms Neilsen meant as the "knowledge" improves. Ms Neilsen said that she put Ms Ellison with a "high support" person when she commenced employment for about three weeks. Ms Ellison said that she only received a few days of training when she commenced employment. Ms Neilsen said that Ms Ellison (after the three weeks) was then required to take incoming calls and she could ask for advice if she was unable to answer the call. Ms Neilsen said that she organised a training day in 2011 but Ms Ellison did not attend. Further she said that she tried to organise another training day but Sharyn was always busy. The issue of the provision of training days being made available to Ms Ellison was not put to her in cross-examination and so no opportunity was afforded to her to respond. Further the suggested training days appeared to be out of ordinary hours and Ms Ellison was not entitled to overtime in her employment package. There was no suggestion that these training days, if provided, were in normal work hours.
Ms Owen said that she was not involved in the training of Ms Ellison. Rather a person by the name of Rebecca trained Ms Ellison. The nature of the training provided to Ms Ellison was the same as for everyone else. Basically someone would sit with the employee for a couple of weeks until the employee was comfortable. Ms Owen mentioned something about a manual being available although this was not in evidence. Ms Ellison in her evidence referred to a manual about the quoting system. Ms Ellison was clear that there was no manual on the software package itself. I accept Ms Ellison's evidence that the only manual provided to her was one on the quoting system and that no manual was provided on the software package itself.
Ms Owen's position on the training provided to new employees was similar to that of Ms Neilsen. If one of the support officers could not answer the query then it would be referred up to a "high support" person. If that person was unable to answer the question the matter would be raised with a programmer. Basically training was "on the job" training. The best Ms Owen did about training Ms Ellison was to speak to a "high support" person and ask them if they would give Ms Ellison some extra attention. Ms Owen said that the "high support" person would have been Ms Nicholls. This is the person who said that she did not have a very high opinion of Ms Ellison.
Ms Nicholls said that throughout Ms Ellison's employment she had the job of training Ms Ellison albeit there was a period of approximately six months in 2012 where she was not training Ms Ellison. She said that there were a lot of errors that were repetitive. As far as she was concerned, Ms Ellison just could not be bothered. Ms Nicholls said that Ms Ellison's attitude to work got worse over the years.
If Ms Ellison's performance was as bad as it was made out to be during the course of this hearing, either Ms Neilsen or Ms Owen had a duty to ensure that she received appropriate training to enable her to gain the necessary knowledge to perform the required tasks. If her performance was so woeful why was she taken to the Trade Fair in Sydney towards mid-2013 to promote both the FlexiQuote and BodyNet products to the market? There was no training specifically directed towards ensuring that Ms Ellison was appropriately trained in the FlexiQuote product. This was a product that Ms Ellison was required to provide advice on throughout the term of her employment with the Appellant.
Assessment of Ms Ellison's performance: Ms Neilsen said that once a year the Appellant would give the support staff a questionnaire on different subjects. It was an opportunity for her to assess the knowledge, or lack thereof, of each staff member. If they were failing she would ask a support supervisor to make sure the staff member was knowledgeable. Ms Neilsen said that she spent none of her own time training Ms Ellison except that she took her, and other staff members, to two trade fairs. When questioned as to what she actually did to assist Ms Ellison the answer was the same - all staff are coached every day i.e. if they can't fix the problem they take it to someone else.
Whilst Ms Neilsen said that Ms Ellison was first tested in 2011, I accept that she was mistaken in the year. I accept Ms Owen's evidence that the testing was conducted in March of each year to enable the Board meeting in March to undertake salary reviews with any increases in salaries to be paid as and from 1 April in any year. Ms Ellison only commenced employment with the Appellant on or about 30 March 2011 and thus would not have been tested in March 2011. Accepting that Ms Neilsen's reference to 2011 was instead a reference to 2012, her evidence was that Ms Ellison got a maximum score of 30% i.e. after almost twelve month's employment. When asked what she did as a result of that score, Ms Neilsen again went on to refer to what the Appellant did with all staff i.e. we bring them down to management (Ms Neilsen and Ms Owen) and go through their test results and talk to them about where they are lacking confidence. Then she would ask those in "high support" to make sure the staff member's knowledge comes up. When asked whether that happened with Ms Ellison, Ms Neilsen responded "definitely yes".
The problem with this evidence is that Ms Ellison said that she received no feedback whatsoever from either of these tests. Further, it was the evidence of both Ms Nicholls and Ms Hovington that neither received any feedback from undertaking the completion of the questionnaire.
Ms Owen designed, administered, corrected and evaluated two product knowledge tests of Ms Ellison - one in 2012 and one in 2013. In those tests Ms Ellison demonstrate a woeful deficiency in the Appellant's product knowledge according to Ms Owen's testimony. These tests were undertaken in March of each year. Ms Owen was at pains to point out that these tests were not "negative". The purpose of the test was, according to Ms Owen twofold i.e. it was to firstly test the product knowledge of each employee and, secondly, to ascertain how the employee was performing with a view to possible advancement.
Ms Owen said that Ms Ellison fared very badly in the test in both 2012 and 2013. Her evidence was that as a result of the tests, she spoke with Ms Ellison and the support people. She did not do any one-on-one with Ms Ellison. She would have got someone else to assist Ms Ellison. Ms Owen then offered the comment that "in the end we gave up on Sharyn with FlexiQuote and this was when Ms Neilsen transferred her to BodyNet i.e. in April 2013. The trouble with that is that Ms Ellison was always required to perform tasks with FlexiQuote.
Ms Owen said that they tried to do training seminars at night or after hours. They did about three or four. Ms Ellison only attended two of those sessions and left early in the second seminar. Once again it would appear that these seminars were organised in Ms Ellison's own time given that she was not entitled to the payment of overtime for any after-hours work. The evidence was that Ms Ellison finished her work at 3.30 pm on each work day. Once again nothing was put to Ms Ellison about the provision of this training and thus she had no opportunity to confirm or deny the suggestion by Ms Owen.
In the circumstances I prefer the evidence of Ms Ellison to that of Ms Neilsen and Ms Owen and find that Ms Ellison was not provided with any feedback from either the 2012 or the 2013 tests. The evidence of Ms Ellison was supported by the evidence of Ms Nicholls and Ms Hovington (Ms Neilsen's daughter) that they had received no feedback whatsoever from undertaking the questionnaire. Neither Ms Neilsen nor Ms Owen provided Ms Ellison with feedback on her performance in answering the questionnaires. It is also noted that Ms Neilsen was absent from the Australian office of the Appellant for considerable periods of time in both 2012 and 2013.
Move from FlexiQuote to BodyNet Product: Whilst Ms Ellison received no training specifically directed at helping her gain the appropriate knowledge required to undertake the work associated with the FlexiQuote product, Ms Neilsen decided in April 2013 to move her to the BodyNet product under the supervision of Mr Linnell. She was not however just performing BodyNet work. She was required, at all times, to perform FlexiQuote work. This was a product that in March 2012 and March 2013 she is said to have performed woefully in the tests/questionnaires. I have already found that Ms Ellison received no feedback as to her performance in those tests/questionnaires and yet by April 2013 she is being asked to learn a new product (BodyNet) in addition to performing work on the FlexiQuote product.
Meeting 16 December 2013: Ms Neilsen said that she had received a skype message from Mr Linnell whilst she was in Malaysia towards the end of 2013. In that message Mr Linnell indicated that he was frustrated that Ms Ellison was not as competent as he would have expected on the BodyNet product. Mr Linnell was keen to return to sales but Ms Ellison needed to be efficient in the BodyNet product before he could return to sales. Whilst there is some difference in the accounts of 16 December 2013 between Ms Neilsen and Ms Owen it is apparent that both spoke with Mr Linnell on the morning of 16 December 2013. Both then called Ms Nicholls to Ms Neilsen's office to see how Ms Ellison was performing with the FlexiQuote product. Ms Nicholls indicated that Ms Ellison was performing poorly on the FlexiQuote product.
After this meeting both Ms Neilsen and Ms Owen had a meeting. Ms Owen said to Ms Neilsen "I think it is time Jacqui". She said that they had tried everything possible to help Ms Ellison. She said that she didn't know whether she was speaking out of turn but said that if Ms Ellison had been anyone else she would have been fired a lot earlier. They then called Mr Linnell back and told him what they intended to do i.e. terminate the employment of Ms Ellison. Mr Linnell then left and returned upstairs. Both Ms Neilsen and Ms Owen thought that the termination of Ms Ellison's employment was best for the Appellant as Ms Ellison was causing a lot of friction between staff members. Nothing was put to Ms Ellison about the causing of friction between staff members. When she was called to Ms Neilsen's office that morning, Ms Ellison was aware that both Mr Linnell and Ms Nicholls had been called down to Ms Neilsen's office that morning.
Having been called down to Ms Neilsen's office, the first words spoken to Ms Ellison were by Ms Neilsen and she said "This is the hardest thing that I've ever been asked to do" or words to that effect. Ms Ellison on hearing these words thought that she was going to be dismissed and her thoughts went to a dismissal just prior to Christmas. Ms Neilsen agreed that on hearing these words it was not unreasonable for Ms Ellison to have gained the impression that she was going to be dismissed. After this initial statement, Ms Neilsen said she then raised the frustrations that Mr Linnell was having with Ms Ellison. Ms Neilsen said that basically it turned into another work appraisal of Ms Ellison. Ms Owen said that Ms Neilsen told Ms Ellison how important it was for her to improve her performance. Ms Neilsen told Ms Ellison that she really needed her to put in some effort and to concentrate on the job. During the course of this meeting, Ms Neilsen said to Ms Owen "I'm sorry, I can't do it" and Ms Owen responded "Okay" i.e. Ms Neilsen could not bring herself to terminate Ms Ellison's employment.
Ultimately Ms Ellison's employment was not terminated on 16 December 2013. Ms Ellison was, however, told that it was Ms Neilsen's intention to terminate her employment but that she had now decided to provide her with a warning and that she would see how Ms Ellison went. After that meeting Ms Ellison was left with the notion that she was not being dismissed at that time but she was on a warning and both Ms Neilsen and Ms Owen would see how she went. When faced with that suggestion Ms Neilsen responded by saying that Ms Ellison could have come to her at any time if she had issues. Ms Neilsen failed to understand the dilemma that now faced Ms Ellison and failed to understand that she had some obligation to ensure that Ms Ellison received appropriate training, feedback etc.
The problems for the Appellant, associated with the meeting on 16 March 2013 and the manner in which it was conducted, were as follows:
· Ms Ellison was given no warning of the meeting;
· Ms Ellison was given no warning, either orally or in writing, of the matters to be discussed at that meeting;
· Ms Ellison was not advised that she could have a support person at the meeting;
· it does not appear that Ms Ellison was given any targets to achieve following the meeting to ensure that her employment was relatively safe; and
· in the three months following that meeting, Ms Ellison was given no specific training to enable her to achieve any such targets.
Ms Ellison has very little recollection of what was said at that meeting beyond the words "[t]his is the hardest thing that I've ever been asked to do" and thinking that she was being dismissed just prior to Christmas. The fact that she does not recall much of the meeting is understandable given that she thought from the outset of the meeting that she was going to be dismissed from employment. Ms Ellison does not recall performance issues being raised at the meeting, she was not provided with any documentation at the meeting, she was not placed on any performance improvement plan following the meeting and nothing was done after the meeting to assist her in the performance of her job. Ms Ellison was provided with nothing after that meeting as to what was required for her employment to be safe.
When cross-examined about the manner in which this meeting was conducted, Ms Neilsen responded that she knew that the Appellant was a "small business". What was meant by that comment was that the Appellant was a "small business" as defined in the Fair Work Act2009 and was therefore not subject to the unfair dismissal provisions of that legislative enactment. Ms Neilsen agreed that her view that she was not required to provide some procedural fairness in these circumstances was wrong. Since Ms Ellison's injury the Appellant has engaged an external human resources company to come in and develop policies and procedures for the Appellant's staff. They now have a staff policy handbook but still have nothing about training of staff.
As to whether this meeting involved reasonable management action taken in a reasonable way the Appellant referred me to Re Quick v Comcare[4], a decision of Deputy President Hack in the Administrative Appeals Tribunal. In that case Mrs Quick was asked to attend an informal meeting with her supervisors on the following day. The intent of the meeting was to persuade her to make some moderate changes to her approach to other staff. Mrs Quick was afforded the opportunity to be accompanied by a support person. Deputy President Hack held that it was reasonable for Mrs Quick's supervisor to proceed by way of an informal meeting intended to persuade the employee to make some moderate changes to her approach to staff.
[4] Quick v Comcare [2010] AATA 209.
The facts and circumstances of Re Quick v Comcare can be distinguished from the present case. Ms Neilsen and Ms Owen had every intention prior to the meeting with Ms Ellison of terminating her employment during the meeting. Mrs Quick's supervisor was proceeding in an informal manner rather than the more formal procedure that might require an investigation of suspected breaches of the Australian Public Service Code of Conduct. The purpose of the meeting with Mrs Quick was to "talk about complaints from some staff members" about the way she had been dealing with them. Ms Ellison was not afforded the opportunity to have a support person. Mrs Quick was advised the day prior to the meeting and she sought to bring the meeting forward which was agreed to. Ms Ellison, on the other hand, was called to Ms Neilsen's office immediately. A record of the discussion with Mrs Quick was prepared shortly after the meeting but was not provided at that time to Mrs Quick as she was away from the workplace on leave. No such record of the meeting with Ms Ellison was taken and therefore was not provided to her even though she remained at work. Such a record may have proven to be of assistance to Ms Ellison in enabling her to determine what improvements were required of her to ensure her job was secure.
Everything about this meeting on 16 December 2013 involved unreasonable management action taken in an unreasonable way. If the evidence of witnesses for the Appellant on the capacity of Ms Ellison to perform her duties is to be believed, and I have serious doubts about that evidence, then neither Ms Neilsen nor Ms Owen (in her absence in 2012 and 2013) did little to ensure that her performance improved. Following the meeting on 16 December 2013 she was given no targets to reach, she was given no specific training to assist her in improving her performance and no assessment was ever undertaken of her performance following that meeting. From 16 December 2013 onwards Ms Ellison was on a warning to improve her performance otherwise she would face dismissal however no specific measures or assistance were provided to her to enable her to improve that performance.
It is little wonder that following that meeting Ms Ellison's perceptions of what Ms Neilsen said or did not say, what Ms Neilsen did or did not do, were that such comments and/or actions were directed towards her. She was the only staff member at that time on a warning. A number of issues arose following this meeting where Ms Ellison perceived that she was being singled out.
Correct Spelling of Appellant's products: One such meeting involved the correct spelling of the Appellant's products. Ms Ellison believed that this meeting was just prior to Christmas 2013. It was held on the deck upstairs. Ms Ellison said that Ms Neilsen warned all staff that they were required to spell the names of FlexiQuote and BodyNet correctly otherwise they would be sacked. Ms Neilsen said that she called a meeting of staff because she had become aware from a customer that one of the staff members had spelt the name of a product incorrectly. At that meeting she told staff that if you work for a company you should be able to spell the name correctly. The staff were further informed that, as the Appellant had two products, they should spell the product names correctly. Ms Neilsen denies that anything was said about staff being sacked if they did not spell the names correctly.
It was not Ms Ellison who had spelt the name incorrectly but those in attendance were not informed of the staff member who was responsible for the incorrect spelling of the product. It is noteworthy that early in Ms Neilsen's evidence I asked her to clarify the correct spelling of the Appellant i.e. whether it was Cinix1 Pty Ltd or Cinix 1 Pty Ltd as both had been used in the material. She was unable to advise me of the correct spelling and suggested that I ask Ms Owen. Given that this meeting occurred only a couple of days after 16 December 2013 one can imagine that Ms Ellison may have thought that the comments of Ms Neilsen were directed at her.
Complaints about Ms Neilsen and her performance: During the course of the meeting on 16 December 2013 Ms Ellison is alleged to have indicated that some staff were saying things about Ms Neilsen behind her back and that some staff were not happy with the way Ms Neilsen was managing the company. Ms Neilsen then called a meeting at which she gave all staff the e-mail address of Harris, her supervisor in Malaysia. She advised staff to "make her day" by lodging a complaint about her. Ms Owen said that whilst Ms Neilsen did not indicate that a consequence of complaining would be the loss of their job she did confirm that Ms Neilsen said to the staff "make my day". According to Ms Owen, Ms Neilsen did say that if she lost her job she would get to go to the Bahamas or somewhere similar for a holiday. Ms Owen did state that there was no way that she felt that if she did send an e-mail she would have been sacked or lost her job. For Ms Owen to have made such a comment there must have been something said, whether in jest or otherwise, that would have given Ms Ellison the impression that her job may have been on the line if she lodged a complaint with Malaysia about Ms Neilsen.
Ms Ellison's evidence was that, at this meeting, Ms Neilsen invited staff to lodge a complaint with Malaysia should they have difficulties with the manner in which she was performing her duties. She provided staff with the e-mail address of her supervisor. Ms Ellison's evidence was that Ms Neilsen went further and said that she had a directive from Malaysia to immediately sack anyone who complained about her as the company would not have sufficient money to pay her on termination and therefore everyone would lose their job.
Given the meeting of 16 December 2013 it is not difficult to imagine Ms Ellison on the alert for any statements made about dismissal. I have formed the view that something was said at this meeting which would have caused Ms Ellison to believe that lodging a complaint may result in termination of employment. In forming this view I do not suggest that Ms Neilsen set out to convey that message. I suspect that Ms Neilsen may have made a light hearted comment that was interpreted differently by Ms Ellison given the meeting of 16 December 2013 and the warning issued on that occasion.
Cleaning of Office during Christmas 2013: Ms Ellison worked at the Appellant's workplace during the Christmas 2013 holiday break. Only a skeleton staff work at the Appellant from the Monday prior to Christmas until after New Year's Day. According to Ms Neilsen it is a quiet period at the Appellant's workplace. Ms Neilsen's evidence is that she said to Ms Ellison, if you are bored and you want something to do we normally do a general clean of the common areas of the office. Ms Neilsen said that in the Christmas 2013 holiday period Ms Ellison did a very good job of cleaning and that she complimented her on the work. Ms Owen said that Ms Neilsen asked Ms Ellison if she had time over the Christmas period would she clean the tracks of the rollers of the sliding doors. Given Ms Ellison's penchant for cleanliness neither Ms Neilsen nor Ms Owen thought for a moment that this would be a problem for Ms Ellison.
Once again one can understand Ms Ellison being concerned at being told to clean the tracks of the rollers of the sliding doors, particularly in circumstances where she has recently been told that she was in line to be dismissed but was now on a warning.
Dress Code for Anniversary Dinner: A Dinner was organised for the 20th Anniversary of the Appellant. It was to be held on 18 March 2014 at the China King Chinese Restaurant at Waterford West. Those invited to this dinner were Board members from Malaysia, clients and staff. An issue arose for Ms Ellison about the dress code for this dinner. Ms Ellison said that she was never advised that the dress standard for the Dinner was formal yet other staff had clearly been so informed. She mentioned that both Ms Nicholls and Lisa White informed her on 18 March 2014 that they had been told that the dress code for the Dinner was formal. Ms Ellison became upset as she had made no arrangements about dressing in a formal manner.
When Ms Neilsen was questioned about this she advised that the dress standard was on the Invitation itself. The Invitation (Exhibit 7) made no mention whatsoever of the dress standard. Ms Neilsen's evidence was that the women wore "formal" to the function however later in her evidence she referred to it as "smart or formal".
Ms Owen said that she thought the dress standard was brought up at a meeting at which all staff were in attendance about a week prior to 18 March 2014. According to her evidence it was said at the same meeting as the hairdresser issue was raised. She said that the dress code mentioned was "smart after 5". Ms Owen made particular mention of the fact that Ms Ellison always dressed well at work. Similarly, Ms Nicholls was of the view that it was a meeting of all staff where Ms Neilsen asked if they could wear "semi-formal" and that it was a different meeting to that of the hairdresser. Ms Hovington's evidence was that whilst the dress standard was raised verbally it was also on the invitation. She then clarified that evidence by saying that she didn't know for sure what the invitation said. Ms Neilsen advised staff at a meeting in the week leading up to the celebration and like Ms Nicholls she said it was a different meeting to that of the hairdresser. According to Ms Hovington it was said that the dress standard was "smart formal" - a dress or something similar.
Given the conflicting evidence of the Appellant's witnesses on this issue I have formed the view that Ms Ellison was not made aware that the dress standard for the Dinner was "formal", "smart after 5", "semi-formal", "smart formal" or any other standard of dress. I accept that Ms Ellison did not know that the dress standard was "formal" and had nothing prepared to wear on 18 March 2014 that would meet that description. I accept that she may have been upset at not having been made aware of the dress code. On becoming aware that other staff members had been made aware that the dress standard was "formal" and had long dresses to wear and sparkling shoes, she decided not to attend the function and instead made an appointment on that afternoon to see Dr Jacovou on the following day i.e. 19 March 2014.
Hairdresser: Ms Ellison's evidence was that on 18 March 2014 she noticed a lady with a big silver case come into the office. She then noticed her doing one of the staff member's hair. Ms Ellison then inquired as to what was happening and was informed by a staff member that the hairdresser was engaged by Ms Neilsen to do staff members' hair for the Dinner that evening.
Ms Neilsen's evidence was that she spoke with every female staff member an asked if they would like to get their hair done for the Dinner on 18 March 2014. She said that she was sure that she went around to each person because she had to tell the hairdresser how many people needed her services on the day. Under cross-examination, Ms Neilsen appeared to step away from that evidence and said that it could have been said in a group meeting. Later in her evidence however, Ms Neilsen said that she recalled specifically approaching Ms Ellison and asking her whether she wanted her hair done. She further recalls the response of Ms Ellison i.e. that she would do her own hair and that this conversation occurred probably on the Friday prior to 18 March 2014.
Ms Owen was of the view that the hairdressing issue was raised at a meeting upstairs on the back verandah where the dress code was also mentioned. All staff were present i.e. men and women. Ms Nicholls said that the meeting was downstairs and only the women were present. Ms Hovington said that the meeting occurred about a week prior to 18 March 2014 and that only the women were present. She was of the view that the meeting was upstairs although she was not sure whether it was inside or outside.
Once again, giving the conflicting evidence presented by the witnesses for the Appellant it is difficult to determine that Ms Ellison was advised about the availability of a hairdresser on 18 March 2014. In those circumstances I prefer the evidence of Ms Ellison that, at no time, was she advised of the availability of a hairdresser.
Credit Issues
Generally I found Ms Ellison to be a credible witness. There were occasions when her perception of certain statements made by Ms Neilsen may have been different to others hearing those statements. This was particularly so following the meeting on 16 December 2013 after she had been placed on a warning. I am also aware that Ms Ellison's psychiatric or psychological injury has become more severe in recent times having suffered a Major Depressive Episode towards the end of 2014 and having spent time at Belmont Hospital in January 2015 i.e. at a very close time to the date she gave evidence.
Mr Dickson, Counsel for the Appellant, submitted that I could not find that Ms Ellison was intimidated by Ms Neilsen. No one asked Ms Ellison what she understood by the term "intimidation". During cross-examination of Ms Ellison it was suggested that she was jealous of Ms Neilsen because she had achieved much more than Ms Ellison had in life. I suspect that Ms Ellison may have been somewhat in awe of Ms Neilsen and thus had a certain level of respect for her and what she had achieved. I am thus unable to make a finding on credit against Ms Ellison for her evidence that she felt intimated by Ms Neilsen.
Similarly, there is the statement by Ms Ellison that Ms Neilsen asked her whether she was taking a "fuck buddy" to the 20th Anniversary Dinner. Ms Neilsen denies having made that statement. For the purposes of this decision I do not need to make any finding on this issue.
On the other hand, I found that the witnesses for the Appellant were prone to exaggeration particularly in commenting about the capacity of Ms Ellison to perform her duties. Ms Ellison did remain in employment for a three year period. In submissions, Mr Dickson contended that after the 16 December 2013 meeting there were no performance issues with Ms Ellison. That submission did not accord with the evidence of some of the witnesses for the Appellant e.g.
· Ms Neilsen said that from the day Ms Ellison started work her performance had not been up to scratch;
· Ms Nicholls said that there were a lot of errors that were repetitive from Ms Ellison, that Ms Ellison could not be bothered and that her attitude to work got worse over the years; and
· Ms Hovington's view was that prior to April 2013 Ms Ellison was alright but that she turned sour after that time.
The findings I have also made in respect of the dress code for the 20th Anniversary Dinner and the lack of advice to Ms Ellison about the hairdresser also cast some doubt on the credit of both Ms Neilsen and Ms Owen.
Conclusion
It should be noted that I directed that Ms Ellison's evidence be taken first in the proceeding. I issued that direction because Ms Ellison had recently been an inpatient at the Belmont Hospital and I did not wish to cause her any further distress by having her being required to remain in the precincts of the Commission awaiting being called as a witness. I was also concerned that any additional distress, over and above the stress associated with giving evidence, might result in Ms Ellison again being admitted to hospital and the hearing of this appeal delayed.
Having made that decision, the Appellant had the opportunity to cross-examine Ms Ellison prior to adducing any evidence on its own part. On the other hand, the Appellant had the obligation of putting to Ms Ellison the matters that it intended to prove and the matters it intended to rely upon in proving its case.
As previously indicated it is the Appellant that bears the onus of proof on the balance of probabilities. Of those matters outlined in paragraph [9] of this decision that the Appellant must prove, I have already determined as follows:
· that Ms Ellison sustained an injury of a psychiatric or psychological nature being an adjustment disorder with anxiety and depressive features: see paragraph [19];
· that Ms Ellison's employment with the Appellant was the major significant contributing factor to the injury suffered by Ms Ellison: see paragraph [23]; and
· that Ms Ellison's injury arose out of, or in the course of, her employment by the Appellant: see paragraph [25].
The Appellant then must prove that the psychiatric or psychological injury suffered by Ms Ellison arose out of reasonable management action and that the management action was taken in a reasonable way: see s 32(5)(a) of the Act. The Regulator's position relies predominantly on the meeting of 16 December 2013 to show that the management action was neither reasonable nor taken in a reasonable way. In addition, the Regulator submits that it was not reasonable management action taken in a reasonable way when the Appellant failed to properly train Ms Ellison, when it failed to have any system in place where the appropriate training might occur, where it placed Ms Ellison "on wood" in relation to being terminated and where, for a period of months after that, did not relieve Ms Ellison of the cloud that was hanging over her i.e. termination of employment.
I have previously found that everything about the meeting on 16 December 2013 involved unreasonable management action taken in an unreasonable way in paragraph [58]. The unreasonable management action taken in an unreasonable way in connection with the meeting of 16 December 2013 was compounded by management's action, or lack thereof, after that meeting. The Appellant provided Ms Ellison with no feedback, no specific training and no further testing following that meeting. From 16 December 2013 onwards there was no contact with Ms Ellison in relation to the matters the subject of that meeting. Following 16 December 2013 at no time was Ms Ellison advised that she had improved her performance, that her job was now safe or anything to the contrary. She continued to perform work with the warning hanging over her head.
The Appellant however contends that the medical evidence does not show any causative connection between this event and Ms Ellison's psychiatric or psychological injury.
Dr Jacovou's clinical notes make no mention of the meeting on 16 December 2013. Ms McQuade's Psychological Report (Exhibit 16) simply states that the "details of Ms Elison's claims can be viewed in her submission to WorkCover". I have not been provided with Ms Ellison's submission to WorkCover. There is also no mention of the meeting on 16 December 2013 in Ms McQuade's client notes (Exhibit 17).
Given the obligation on the Appellant to put to Ms Ellison the matters it intended to rely upon, at no stage was it put to her that she was upset by anything apart from work. Further, it was never put to Ms Ellison that neither the clinical notes of Dr Jacovou nor the client notes of Ms McQuade make mention of the meeting of 16 December 2013 as being a cause of her injury. Ms Ellison was never asked why she did not mention the meeting of 16 December 2013 to either Dr Janovou or Ms McQuade. I do not know what her response may have been. The opportunity was not given to Ms Ellison to explain the alleged inconsistency that the Appellant was going to rely upon.
The clinical notes of Dr Jacovou record that Ms Ellison said that she suffered anxiety symptoms "over the last 6 months - getting worse" or words to that effect. The meeting of 16 December 2013 was within that six month period. Whilst I do not have Ms Ellison's application to WorkCover Queensland for compensation, the Reasons for Decision of the Regulator were tendered (Exhibit 2). In that Reasons for Decision it is stated that in Ms Ellison's Psychological and Psychiatric Injury Form dated 24 April 2014 she stated the cause of her psychological injury was as a result of "Workplace Stress/Harassment by Ms Jacqui Neilsen CEO of Cinix 1 Pty Ltd". An example of the "constant campaign of harassment by Ms Jacqui Neilsen" was that she stated that she was "called into a meeting on 16 December 2013 when Ms Neilsen commenced the meeting saying "I'm really sorry to have to do this" but did not qualify her statement.
Whilst the meeting of 16 December 2013 involved unreasonable management action taken in an unreasonable way it was not the only such action. There was also the issue of Ms Ellison's training or lack thereof. I have found that there was no training specifically directed towards ensuring that Ms Ellison was appropriately trained in the FlexiQuote product - a product that she was required to provide advice to clients on throughout her employment with the Appellant. It was encumbent upon Ms Neilsen and, in her absence, Ms Owen to ensure that appropriate training was provided to Ms Ellison.
Whilst the Appellant undertook some form of testing of staff each year, I have found in paragraph [47] there was no feedback provided to Ms Ellison about her poor performance on these tests.
After the meeting on 16 December 2013 Ms Ellison was aware that Ms Neilsen was going to terminate her employment on that day but had decided rather to issue her with a warning and that Ms Neilsen would see how she went. Ms Ellison was given no targets to achieve following this meeting, she was given no specific training to enable her to improve her performance and there was no assessment of her performance following the meeting on 16 December 2013. From 16 December 2013 onwards Ms Ellison was on a warning to improve yet no specific measures or assistance were provided to her to enable her to improve her performance.
As I have previously mentioned, it is little wonder that Ms Ellison's perceptions of what occurred at the workplace following that meeting appeared to be directed towards her e.g. the meeting involving the correct spelling of the Appellant's products, the meeting where staff were advised they could complain about Ms Neilsen to her Malaysian supervisor and the request to clean the tracks of the rollers on the sliding door over the Christmas period. At that time she was the only staff member on a warning.
The issue of the dress code for the 20th Anniversary Dinner and the failure to advise Ms Ellison about the hairdresser were, as Mr Sapsford, Counsel for the Regulator, submitted the straw that broke the camel's back. As it turned out no witness knew what the dress code was supposed to be e.g. "formal", "smart after 5", "semi-formal" etc. The evidence was that Ms Ellison was the best dressed staff member at work. One could thus imagine her being upset if the dress code was formal and she had not been informed of that fact and was thus not prepared for that eventuality. Given that these issues were the catalyst for Ms Ellison visiting Dr Jacovou on 19 March 2014 it is understandable that she would have mentioned those issues at the time.
The Appellant further relied upon s 32(5)(b) of the Act i.e. that the term "injury" does not include a psychiatric or psychological disorder arising out of, or in the course of, the worker's expectation or perception of reasonable management action being taken against the worker. The first element is management action taken "against" the worker and secondly, a consequent perception by the worker which does not accord with that of a reasonable person.
The management action taken on 16 December 2013 was management action taken against Ms Ellison. Ms Ellison's perception of what occurred at that meeting accords with the version of events given by both Ms Neilsen and Ms Owen. Mr Sapsford has submitted that the Regulator is content to rely upon the version of events of the meeting of 16 December 2013 provided by Ms Neilsen and Ms Owen as establishing the factual circumstances of that meeting.
In this regard the Regulator referred the Commission to the decision in State of Queensland v Q-COMP[5] and the following passage from that decision:
"… If it be objected that Mrs White is being allowed to benefit from her own perception there are two answers. Fist, section 32(5)(b) of the Act is concerned with action being taken against a worker and no action was being taken against Mrs White. Second, given the purpose of s. 32(5)(b) of the Act "perception" cannot apply to a case where (as here) "the perception which would have been entertained by a reasonable person".
[5] State of Queensland AND Q-COMP - 17 February 2010 - < type="1">
There is no evidence whatsoever to suggest that Ms Ellison's perception of the meeting on 16 December 2013 was anything different to that of Ms Neilsen and Ms Owen. I therefore find that the perception by Ms Ellison of the meeting of 16 December 2013 was that which would have been entertained by a reasonable person.
The events leading up to the 20th Anniversary Dinner (i.e. the dress code and the provision of a hairdresser) involved no question of management action being taken against Ms Ellison and thus s 32(5)(b) has no relevance to these events.
In the premises I determine that:
(i)Ms Ellison was a "worker" within the meaning of that term as used in s 11 of the Act;
(ii)Ms Ellison sustained an "injury" of a psychiatric or psychological nature;
(iii)the injury sustained by Ms Ellison arose out of, or in the course of her employment with the Appellant;
(iv)the employment with the Appellant was the major significant contributing factor to that injury; and
(v)the Appellant has failed to establish, on the balance of probabilities, that either the exclusionary provisions of s 32(5)(a) or s 32(5)(b) have application in the circumstances.
[100]Accordingly I dismiss the Appeal. I confirm the decision of the Regulator dated 29 July 2014 to accept Ms Ellison's claim for compensation in accordance with s 32 of the Act. The Appellant is to pay the Regulator's costs of, and incidental to, the appeal to be agreed or, failing agreement, to be the subject of a further application to the Commission.
[101]Order accordingly.
0
6
0