Cumming v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 168
•22 October 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Cumming v Simon Blackwood (Workers' | ||||
| Compensation Regulator) [2014] QIRC 168 | |||||
| PARTIES: | Cumming, Diane | ||||
| (Appellant) | |||||
| v | |||||
| Simon Blackwood (Workers' Compensation Regulator) | |||||
| (Respondent) | |||||
| CASE NO: | WC/2013/70 | ||||
| PROCEEDING: | Appeal against a decision of Simon Blackwood | ||||
| (Workers' Compensation Regulator) | |||||
| DELIVERED ON: | 22 October 2014 | ||||
| HEARING DATES: | 20 to 23 May 2014 | ||||
| 30 July 2014 (Appellant's submissions) 5 September 2014 (Respondent's submissions) | |||||
| MEMBER: | Industrial Commissioner Thompson | ||||
| ORDERS : |
|
confirmed.
3. The claim is not one for acceptance.
4. The Appellant is to pay the Respondent's costs of and incidental to the Appeal.
CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - Appellant a worker - bears onus of proof - standard of proof - balance of probabilities - medical evidence - personal injury - personal injury arose out of or in the course of employment - employment a significant contributing factor - personal injury excluded from being compensatable by the operation of s 32(5)(a) - Appeal dismissed - claim not one for acceptance - decision of Regulator confirmed - Appellant to pay Regulator's costs. |
| CASES: | Workers' Compensation and Rehabilitation Act |
| 2003 s 11, s 32, s 550 WorkCover Queensland v Margaret Kehl [2002] | |
| QIC 23 | |
| Paul Delaney v Q-COMP Review Unit [2005] QIC 11 | |
| Wei v Minister for Immigration, Local | |
| Government and Ethnic Affairs (1991) 29 FCR 455 Q-COMP v Craig Hohn [2008] 187 QGIG 139 Glen Rowe v Q-COMP [2009] 190 QGIG 93 | |
| Tamara Jones AND Q-COMP (WC/2009/46) - Decision < | |
| Paula Halsen v WorkCover Queensland - Unpublished - Decision of Magistrate I.M. | |
| Taylor - 15/11/01 | |
| APPEARANCES: | Mr S. Cleary, Counsel instructed by Quinn & Scattini for the Appellant. Mr C. Clark, Counsel directly instructed by Simon Blackwood (Workers' Compensation |
| Regulator), the Respondent. |
…
(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;
(c)
action by the Authority or an insurer in connection with the worker's application for compensation."
Nature of Appeal
[4] The Appeal to the Commission is by way of a hearing de novo in which the onus of proof falls upon the Appellant.
Standard of Proof
[5] The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
[6] In the course of the proceedings, evidence was provided by eleven witnesses.
[7] The Commission, in deciding to précis the evidence of the witnesses, and submissions, notes that all the material has, for the purposes of this decision, been considered in its entirety.
Witness Lists
[8] The witnesses for the Appellant were:
Cumming; Dr Miles Meyrick (Dr Meyrick); Patricia Parry (Parry); Peter King (King); and Dr Karen Chau (Dr Chau).
[9] The witnesses for the Regulator were as follows:
Marjorie Sumpton (Sumpton); Meredith Horstman (Horstman); Gavin Gleeson (Gleeson); Gar'ry Yates (Yates); Tanya Corr (Corr); and Melissa Bannerman (Bannerman).
Appellant
Cumming
[10] Cumming, at the time of the incident subject to the application for compensation, was a Residential Care Officer (RCO) with Disability Services Queensland (DSQ) which was a role that encompassed working with people with disabilities assisting them to be active in their everyday life. Cumming had held the position from around 2005 and was an RCO at the time of hearing. In terms of qualifications, she gave evidence of having obtained the following:
Certificate III in Disabilities; Certificate IV in Disabilities; and Certificate III in Aged Care - Nursing.
In the course of employment DSQ provided a range of training and instruction.
[11] Cumming was the subject of formal allegations in or around October 2010 whilst working at a residential facility which housed two service users. In correspondence under the hand of the Assistant Director-General - Statewide Disability Services she was informed that Ethical Standards were to investigate the following allegations that had been levelled against her:
"1. That on 7 January 2011, you did physically and/or verbally abuse service
user [name withheld] at 1 Brian Parker Place, Wacol.2. On 10 January 2011, you did verbally abuse service user [name withheld]. 3. On 3 February 2011, you did physically and/or verbally abuse service user [name withheld] at 1 Brian Parker Place, Wacol."
[12] At the time of the incident her immediate management reporting structure was:
Karen Hahn - Team Leader; Yates - Service Manager; and Bannerman - Area Manager.
[13] The residential location (Brian Parker Place) (BPP) was not a "happy place" at the time according to Cumming who indicated there were three RCOs on the roster who were not interested in fulfilling their roles to care properly for service users. Cumming had generated correspondence to management relating to concerns about the operations at BPP on 5 August 2010, 14 December 2010 and 7 February 2011. The correspondence of 7 February 2011 was in fact a formal complaint against three co-workers at BPP relating to concerns about service users' care.
[14] On 4 February 2011 Yates telephoned her to advise not to present for work that evening as there had been a number of allegations made about her in terms of her work at BPP. Bannerman spoke to her a few days later to inform her that on return from vacation leave she would be required to work at the Wacol Service Centre. Neither Yates nor Bannerman informed her of the substance of the allegations despite a request from her for details.
[15] On her return from leave there was a conversation with Bannerman who advised her that she would be working out of the Brisbane West Service Centre (Bris West) where she would be required to "just sit in this office". There were instructions given not to communicate with anybody. Cumming was there for a couple of months and did nothing but play games on her phone. Eventually she was asked to vet a folder for new administration staff which was difficult in that she had no office duty skills to the extent she did not know how to use a computer. Unable to complete the task she handed it back after a couple of weeks.
[16] Cumming "hated" working in the office because people looked at her like she had "abuser" written on her forehead because everyone knew you only got sent to the office if you were in trouble.
[17] After a couple of months at Bris West one of the team leaders allowed her to use her laptop computer but she "stuffed everything up" on it and apparently "deleted everything". A couple of weeks later she was relocated to the Wacol Office where some time later Bannerman approved a course in computer training at a TAFE in Ipswich. Approval was given for her to attend the training "offsite" and she completed two stages of training prior to the employer ceasing to fund the training.
[18] Whilst at Wacol she was asked by a couple of team leaders to attend some training in a residential house and when she informed them of her position in relation to no contact with any service users, was told it was okay as long as she was in their company. Cumming joined three others in a vehicle (outside the Wacol office) and as they were about to depart Sumpton approached the vehicle and after a brief exchange opened the car door and shouted at Cumming loudly "you're not allowed to go". It was loud enough for the ladies in the office to know that something was being said to her. She later was involved in an exchange with a staff member who she (Cumming) spoke horribly to, as she "just lost it".
[19] Cumming gave evidence of being allotted a task requiring her to take photos of speech therapists, going out to the house, cutting out little pictures and pasting them, leaving her feeling "so degraded". She expressed concerns to Bannerman about the duties and was told "somebody has to do it". Another incident involved her being put in a room with team leaders and the team leaders having to leave the room to discuss matters because they were not allowed to talk about service users in front of her. At times there was a request from a nurse to undertake some filing activities around service users medical history but in doing so was not left alone in the team leader's room in case she was able to see other files. Cumming gave further evidence of being isolated, shunned and being required to sign on for work under the classification of "other" for a period of 19 months. At times she was requested to answer phones but had difficulties with that task as she became confused having to transfer calls. There were other instances where she failed in carrying out directions relating to administrative duties.
[20] A Senior Investigations Officer from Ethical Standards issued an invitation to Cumming (on 8 November 2011) to attend for an interview concerning serious allegations about her conduct at BPP where it was alleged she had physically and verbally abused service users. Cumming attended the interview on 16 November 2011 in the company of Wayne Mills (Mills) an Organiser with The Australian Workers' Union, Union of Employees. The transcript of the interview
was tendered in the proceedings [Exhibit 8].
[21] On 12 January 2012 Cumming lodged with the employer a Workplace Injury, Illness and Incident Report Form (WIRF) [Exhibit 9] in which she described (briefly) the incident:
"Went to work upset over allegations and being in office. People asking why I'm there what did I do. Tired of lying. Melissa says to make up a story. Can't. Stress and depression."
A further WIRF [Exhibit 10] was submitted on 27 April 2012 in which the incident was recorded as:
"Because of all investigations going on. Fronting up at work every day to office when I don't know much and having everyone know why I'm there. Undervalued and useless etc."
Cumming's evidence was that no-one spoke to her in relation to these forms.
[22] Correspondence was forwarded to Cumming (on 10 May 2012) in relation to further allegations against her over conduct at BPP on 27 September 2010 and 5 February 2011. The conduct referred to was of physical and abusive behaviour against service users and directing another RCO to falsify official departmental records. An interview was scheduled for 14 May 2012 with a transcript of the interview tendered in proceedings [Exhibit 12].
[23] Cumming gave evidence in respect of further WIRFs provided to her employer on:
14 May 2012 [Exhibit 13]; 15 May 2012 [Exhibit 14]; 14 June 2012 [Exhibit 15]; 12 July 2012 [Exhibit 16]; and 13 July 2012 [Exhibit 17].
[24] Incident information in the WIRF included:
stressed due to work-related incidents; stressed - upset - before, during, after interview; criticism - expectations on her knowledge of office work; bullying; bullied - intimidated re Psychologists letter; and bullied over appointment with a Psychiatrist arranged by Bannerman.
[25] A suggestion had been made previously by Bannerman that as she was too upset over the allegations and that she ought to consult a Psychologist at which time Bannerman handed her a piece of paper with appointment details. The Psychologist (Dr Hazell) had made a suggestion that Cumming be given to certain placements because of potential psychological dangers with her exposure in the front line. The suggestion was ignored with Bannerman telling her if she did not go back as an RCO she would find herself in early retirement.
[26] Cumming had put forward suggestions to Bannerman about transfers to other locations all of which were ignored and it was only after she went on sick leave she became aware there was the opportunity to have a support person from within Health and Safety. Contact was made with her around Christmas 2012 (after her application for workers' compensation had been lodged). Bannerman had made contact with the Employee Assistance Service (EAS) for her despite objections raised by her to have been involved in that process.
[27] At one stage when she was upset at work she was taken into an office by Bannerman and Horstman and forced to talk (on the phone) with a Psychologist obtained through EAS by Bannerman.
[28] An application for workers' compensation was made by Cumming on 13 August 2012 with the assistance of Dr Meyrick.
[29] Cumming in correspondence (dated 3 September 2012) was advised that an investigation report had been completed which contained findings that the allegations against her were not capable of being substantiated and there was to be no further action taken against her. Cumming was relieved with the outcome however the investigation had not cleared her completely relying instead on the balance of probabilities which meant the matter would end up on her record.
[30] Throughout the entire process she had felt ashamed, lost confidence in herself and the longer the investigation went on the more she stressed as she believed there was more chance of it going against her.
[31] Under cross-examination, Cumming's evidence around allegations of bullying and intimidation in meetings with Bannerman and others was the subject of challenge in that following one meeting she had left a note saying "Thank you Mel for your help and concern. Well appreciated. Diane." [Transcript p. 1-90]. Cumming believed the investigation undertaken in respect of the allegations against her should never have been taken to the Queensland Police Service (QPS) in the first place which caused her great stress [Transcript p. 1-95]. Cumming acknowledged that she had told Dr Chau that she had become "mentally unwell" after allegations had been made against her by work colleagues which included an allegation she was having a sexual relationship with King at a service user's home [Transcript p. 1-97]. Cumming did not deny that she had become mentally unwell by the mere fact of the complaints made against her [Transcript p. 1-98]. Further she had informed Dr Chau that since 4 February 2011, having been given administrative tasks, had made her feel inadequate and coupled with the allegations as well as being investigated caused her to feel stressed [Transcript 1-98].
[32] In terms of the WIRFs submitted by Cumming it was her evidence that she could not recall any feedback from the employer in respect of those forms [Transcript p. 2-2].
[33] In March 2002 she had consulted with Dr Jackson over a post-traumatic stress disorder after having allegations made against her regarding the sexual interference against a resident of an aged care facility. Cumming was subsequently cleared although following the incident she accepted there was a consistent pattern of her suffering mental health issues (distressed) [Transcript p. 2-7]. In the period between 2002 and 2010 Cumming was involved in an acrimonious marriage breakup which saw her prescribed anti-depressant medication which she denied taking [Transcript p. 2-8].
[34] Cumming had made a number of complaints and allegations against work colleagues at BPP in December 2010 with complaints against her then following [Transcript p. 2-9]. Around that time Cumming was offered access to the EAS but did not avail herself of the offer [Transcript p. 2-14]. Cumming acknowledged telling Dr Meyrick as early as 19 March 2011 of issues regarding her mental health [Transcript p. 2-18]. Cumming understood that, in view of the allegations against her, she was unable to work with any service users at that time [Transcript p. 2-19]. Due to a change of policy, rather than being sent home (as was the case previously) there was an opportunity to come to work which she chose because to go home on pay "was stealing money". Cumming made this choice despite not having any administrative skills to undertake administrative duties [Transcript p. 2-19]. Cumming considered the work allocated to her was beneath her because she was a RCO although realising RCO work was out due to the nature of the allegations against her [Transcript p. 2- 20]. The unreasonable deployment offered to Cumming was said to have contributed to her condition [Transcript p. 2-22]. She accepted she was suffering from some form of mental health illness as a consequence of learning about the allegations against her [Transcript p. 2-25]. It was accepted by her that once she became aware of the QPS involvement in the allegations there was a significant deterioration in her mental health [Transcript p. 2-26].
[35] On 24 May 2011 she commenced treatments associated with a mental health referral plan with her mental state becoming worse due to the length of the police investigation [Transcript p. 2-27]. She continued to see Dr Hazell on a regular basis. Cumming attended Dr Meyrick on 15 November 2011 with the visit prompted by the fact she was to be interviewed in respect of the allegations against her and was becoming upset [Transcript p. 2-30]. Other matters relating to Cumming's personal circumstances (not work-related) were raised in terms of her mental health which she acknowledged had impacted upon her mental health to the extent she felt "stressed over it but didn't feel impacted on it" [Transcript p. 2-32].
[36] Cumming was assisted with undertaking a TAFE training course in computers (paid by the employer) with two half-days a week allowed for her attendance at TAFE [Transcript p. 2-33]. Cumming claimed to have not been given work of any consequence initially however conceded after some time she was:
given a roster of tasks; occupying the reception desk; undertaking telephone duties; and undertaking mail deliveries [Transcript p. 2-33].
[37] Cumming continued to be paid at her AO4 rate whilst undertaking administrative duties described as being of an AO2 level [Transcript p. 2-35]. She had wanted to return to RCO duties but did not want to work with "the people that made allegations about me" [Transcript p. 2-35]. Dr Hazell on the other hand was (at the time) advocating a change from RCO duties to administration work [Transcript p. 2- 36].
[38] Cumming conceded that the stressors identified in cross-examination were not part of her evidence-in-chief which had relied heavily upon what was happening in the workplace (administrative work) [Transcript p. 2-37]. Cumming, by May 2012, gave evidence of "trying to make the best of the situation" regarding the administrative duties she was undertaking and she had (herself) enrolled in an administrative course [Transcript p. 2-39]. The meeting with Bannerman (on 10 July 2012) was for the purpose of informing her due to changes the government was making it was unlikely she would be able to obtain an alternate position if she was unable to be employed as a RCO. Cumming agreed she informed Bannerman she was happy with the way she had been learning computer skills but could not afford to take an AO2 paying job [Transcript p. 2-40].
[39] Bannerman had expressed concerns about Cumming's wellbeing in view of her attending 30 appointments with the Psychologist and not appearing to have developed a high level resilience or coping strategies telling Cumming "I will get a letter so that you can sign it to say that I can come to the doctor's meetings with you". Cumming signed such a letter because she "didn't know what she was doing" [Transcript p. 2-41]. Cumming recalled being afraid that other staff knew about the allegations against her [Transcript p. 2-43]. At one stage she was crying in the reception area where she was approached by Horstman and taken to Bannerman's office. At that time Bannerman contacted EAS and had Cumming speak to a person [Transcript p. 2-46].
[40] Cumming attended a General Practitioner on 25 July 2012 and amongst other matters raised with the Doctor, there were current allegations of workplace assault upon a service user that had been ongoing for 17 months [Transcript p. 2-47]. Cumming acknowledged that she lodged a claim for workers' compensation following a consultation with a Solicitor and not Dr Meyrick as first alleged [Transcript p. 2-49].
[41] Cumming was unable to recall whether the issues about being distressed and bullied relayed to Dr Lachman (Psychiatrist) on 15 August 2012 were in relation to the meeting involving Bannerman and Corr or the incident with Horstman [Transcript p. 2-91].
Dr Meyrick
[42] Dr Meyrick was Cumming's General Practitioner for a lengthy period of time and whilst no longer at the practice, had an independent recollection of her as patient.
[43] Cumming had a history of mental health conditions dating back to 1999 with 19 March 2011 the first occasion she had mentioned allegations against her at work.
[44] The evidence-in-chief of Dr Meyrick in essence related to the content of extensive clinical notes in respect of Cumming's attendance upon the medical practice from which Dr Meyrick conducted his own practice. The clinical notes contained the following information:
19 February 2010 - mental state good and stable; 9 to 16, 23 to 30 March 2010 - consultation with no mention of mental
health issues; 7 April 2010 - depression stable; 5 and 18 May 2010 - no reference to stress mental health; 2 June 2010 - no mention of mental health issues; 7 and 20 July 2010 - no mention of mental health issues; 21 September 2010 - no mention of mental health issues; 6 October 2010 - tears, pain, stressed; 19 March 2011 - reason for visit headache and stress; 29 April 2011 - anxiety - depression; 24 May 2011 - 2710 exacerbation mental state - currently waiting for
police interview following work allegation; 6 and 29 June 2011 - no reference to any stress related matters; 13 July 2011 - mental health and weight; 30 August 2011 - mental health review - don't cry as often. Getting on
well with Dr Hazell; 15 November 2011 - Cumming had been using four Effexor - advised of
risk factors - hearing tomorrow over work allegations; 28 November 2011 - negative thoughts, not able to concentrate, no
libido; 6 December 2011 - in trouble at work again over something trivial but
felt like being picked on and singled out; 13 December 2011 - mental health issues; 20 December 2011 - no stress matters; 10 January 2012 - mental health plan; 24 January 2012 - mental health and other matters; 28 February 2012 - no mental health; 1 May 2012 - mental health - recent set back due to new allegations; 8 May 2012 - mental health issues - in office - not involved - feels out of
the loop; 12 May 2012 - mental health and other issues; 6 June 2012 - restarted smoking due to stress;
4 July 2012 - Psychologist (Hazell) advised Cumming should never work again with Disability Queensland in a clinical setting - retrain for back office job;
25 July 2012 - employer had suggested a new Psychologist - fears pay
reduced - allegations of workplace assault; 1 August 2012 - mental health - work matters - personal matters; 8 August 2012 - diagnosis of adjustment disorder and depression; and 15 August 2012 - change of medication. Note: Whilst Dr Meyrick commented on all of the consultations, these were consultations that involved medical practitioners other than him.
[45] Under cross-examination Dr Meyrick gave evidence that health records were very important to him in what they reflected [Transcript p. 2-83]. In terms of medications prescribed to Cumming the drug Cymbalta was said to have two "indications" in that it was a pain relief drug as well as an anti-depressant [Transcript p. 2-83]. Dr Meyrick on one occasion had to issue a rebuke to Cumming in respect of the dosage of Effexor which was prescribed for mental health issues [Transcript p. 2-84]. Dr Meyrick confirmed the clinical notes relied upon spoke for themselves as far as what her various complaints were [Transcript p. 2-85]. If the notes did not record that Cumming's employer had offered to accompany her to an appointment with him his response was "if it's not in my notes, I don't think I was told" [Transcript p. 2-86].
Parry
[46] Parry, a Direct Support Team Leader with DSQ, identified her role as offering support for teams working in houses caring for people with disabilities which includes filling in for RCOs late or away sick. The position reports to a Service Manager and received instructions from the occupier of that position. Operational issues are often raised by RCOs with the Service Manager.
[47] Parry only knew Cumming from the time she commenced in the Wacol office having no involvement during her time as an RCO. At the time of meeting Cumming, she was one of seven team leaders based in the Wacol office. Whilst Cumming was never a member of her team, if there was work for her to do, such as archiving, Cumming would be allocated that work. She was aware that Cumming was not allowed to work in a house unsupervised whilst under investigation.
[48] Parry recalled an incident involving Sumpton and Cumming where they were about to leave the office in a vehicle containing Cumming and others when Sumpton came "flying out from somewhere" and in a very abrupt tone instructed Cumming to "get out of the car now". Sumpton was said to have been abrupt to the extent the incident stuck in Parry's mind. In her view the issue could have been addressed differently as everyone present (including Cumming) were shocked by the "tone". Parry spoke to Cumming the following day who appeared very upset and was crying about the way she was spoken to by Sumpton.
[49] Parry had often sat with Cumming at lunch time and expressed a view that she had issues about the investigation that was being conducted and the way she was being treated at the time. Over the time Cumming was at the office Parry observed her demeanour got worse and that she was crying often. Parry recalled that people under investigation who had been placed at the office were referred to as "others" by Bannerman which Parry thought was a "bit inhumane".
[50] In the course of cross-examination, Parry gave evidence that Cumming was not present when Bannerman had coined the term "the others" [Transcript p. 2-99]. In relating to the Sumpton incident, the group were going to a planning day at 5 BPP which was not a premise where Cumming had worked. Parry's knowledge of the allegations against Cumming were they related to service users and she had not been told Cumming could not work in another house with the only restriction being she "were not to work with service users unsupervised" [Transcript p. 2-100]. The Commission asked Parry if the incident was of a nature that she could have formally or informally made a complaint or raised with a superior to which Parry replied "No. I hadn't at the time thought I would do that. No" [Transcript p. 2-106]. Prior to leaving for the planning day Cumming had been told by Parry (and others) "You can come as an observer. You won't be allowed to say anything" [Transcript p. 2-101]. Parry conceded that Sumpton's voice was raised but it was not yelling [Transcript p. 2-102]. Cumming talked about the incident for months, frequently complaining about what happened and how she was being treated overall [Transcript p. 2-102].
King
[51] The partner of Cumming and also an RCO, King was working with Cumming at BPP at the time the allegations were made against her and was himself the subject of allegations that resulted in him being deployed to the Wacol office where his role was to assist team leaders. King's evidence was that he knew most of the staff at Wacol and was treated very well with no queries as to why he was at the office.
[52] Whilst the investigation was being conducted in respect of the allegations against him Cumming, who had been a work colleague moved into his place of residence. At that time he witnessed symptoms of stress from Cumming who would become:
quite emotional; weepy; frustrated; and upset/angry.
Cumming had gone from a normally happy person to someone who is quite distressed.
[53] Cumming had, over time, expressed concerns about the length of the investigation and was worried about having to undertake a second interview. It was not until September/October 2012 that she was cleared with regards to the allegations.
[54] Under cross-examination, King confirmed the allegations against him had been referred to the QPS [Transcript p. 3-11]. He accepted it was a reasonable response that there was no connection with service users whilst the allegations were being investigated [Transcript p. 3-12]. Whilst being relieved of his RCO duties he undertook basic administrative duties. Prior to Cumming moving in with him in or around June 2011, he had limited contact with her although there was some social conduct outside of work. At the same time Cumming was going through a divorce which had her, at some stage, taking out a DVO against her (then) husband [Transcript p. 3-13]. At times King accompanied Cumming to see her General Practitioner and was present at consultations that on one occasion dealt with depression [Transcript p. 3-15].
[55] A small part of Cumming moving in to his place of residence was attributed to actions of her (then) husband [Transcript p. 3-18]. Medical records showed King had accompanied Cumming to her General Practitioner on 6 October 2010 and 19 March 2011 prior to entering into a relationship and in March 2011 the clinical note referred to him as "the HB" (husband) [Transcript pp. 3-18 to 3-19].
Dr Chau
[56] Dr Chau, a Consultant Psychiatrist, provided a report (dated 2 August 2013) in relation to Cumming [Exhibit 37]. Dr Chau's evidence-in-chief went to the content of her report which relied upon Cumming's medical records from 4 June 1999 until 28 February 2013. Dr Chau recalled there seemed to have been quite a few work-related stressors with significant stress appearing as a result of a prolonged investigation and being left in the dark. Other stressors were being given alternate work without any training in administrative duties, isolated (at work) and bullied by her manager (Bannerman). Cumming had also informed her of an incident where she was singled out when about to go with a staff group to some houses.
[57] Dr Chau confirmed the content of the report in respect of the opinions expressed which included:
Cumming had symptoms suggestive of an adjustment disorder with mixed anxiety and depressed mood and aggravation of social phobia as a direct result of false allegations made against her on 4 February 2011;
she was likely to have been predispositioned to these conditions given her pre-existing specific phobia of heights since childhood, avoidant and perfectionistic personalities and very traumatic past. It is likely that being wrongly accused of abusing a client in 2002, may also have predisposed her to developing adjustment disorder and feeling avoidant of returning to her pre-injury role;
"DSM IV Diagnosis
Axis I
Adjustment Disorder with Mixed Anxiety and Depressed Mood, Social Phobia of Heights, Obsessive Compulsive Disorder.
Axis II Avoidant and perfectionistic personality traits. Axis III Right knee injury. Axis IV Chronic pain, family stress, concerns about her relationship,
uncertain future employment.Axis V Moderate degree of symptoms"; and Cumming's employment was a significant contributing factor to her
reported psychological/psychiatric injuries and disabilities.
[58] Under cross-examination Dr Chau confirmed the content of her report regarding the meeting with Bannerman and feeling bullied. Cumming was given every opportunity to tell her side of the story [Transcript p. 4-15].
Regulator
Sumpton
[59] In 2011 Sumpton was a Service Manager employed by DSQ at Wacol and whilst her role did not relate to managing Cumming, she was aware in 2011 of her working in the office on alternate duties due to an investigation of some staff at the house where she had been working. Towards the end of 2011 there was to be a planning day at 5 BPP which was to involve service users involved in the allegations against Cumming. At a point she approached team leaders (in a vehicle) to see about getting a lift to the meeting when she noticed Cumming who had some work restrictions, at which time she requested the team leaders to "hang on a second" whilst she sought to raise the matter with her manager. Sumpton was informed it was inappropriate for Cumming to be attending the meeting causing her to return to the vehicle and inform Cumming she could not attend the meeting because of her restrictions.
[60] Sumpton indicated that Cumming walked off and she was later informed by her Manager that Cumming was very upset and angry at what had happened. Over time she continued to run into Cumming around the office and on one occasion witnessed Cumming crying in the kitchen and had sought to assist her (in 2012).
[61] Under cross-examination the evidence was that the majority of staff in the vehicle on the planning day were team leaders with Parry driving the vehicle [Transcript p. 3-26]. Confirmation from her Manager regarding Cumming's restrictions had not taken long with Sumpton conceding she then rushed out to the vehicle, opened the door and in a raised voice said "Di, can you come out of the car". Sumpton denied she had spoken to Cumming in an abrupt way [Transcript p. 3-27]. Sumpton conceded the tone of her voice may have been abrupt and was sure Cumming was out of the vehicle when she spoke to her [Transcript p. 3-30]. Sumpton's evidence was that she never communicated to Parry information about the restrictions in place for Cumming and that she herself was unaware apart from the inability to work directly with clients and that she was working in the office. Sumpton had not made further enquiries as to why Cumming was in the vehicle in the first place and accepted it may well have been embarrassing for Cumming to have been pulled out of the vehicle [Transcript p. 3-33], further accepting the incident could have been upsetting [Transcript p. 3-34].
[62] In re-examination, the evidence of Sumpton was that she never shouted loudly "stop the car" or shouted at Cumming "get out of there. You're not allowed to go". On the restrictions imposed on Cumming the only way the team leaders would have been aware of the restrictions was if Cumming had spoken to them.
Horstman
[63] In 2011/2012 Horstman was the Senior Administration Officer at the Wacol Service Centre for DSQ. Horstman had caused a database search to be undertaken for WIRFs submitted by Cumming in the period relevant to this Appeal. Evidence was given that WIRFs submitted by Cumming on the following dates had been signed off by DSQ Officers:
27 April 2012; 4 May 2012; 14 May 2012; and 15 May 2012.
The database search did not reveal any incident reports lodged by Cumming on
12 January 2012 or 13 July 2012.[64] Horstman became aware that Cumming was the subject of allegations in 2011 when she was placed on office based alternate duties. Previously employees in similar circumstances quite often stayed home but it became preferable to provide alternate meaningful duties in an office environment. Along with Cumming there was another person (King) on alternate duties which was thought to be a potential issue if they were placed in the same location. Cumming, according to Horstman, "wasn't actually doing very much meaningful work. She was reading magazines". There was an effort made to find her work to do which was not assisted by her not having any computer skills, although she eventually undertook work which included putting together information folders.
[65] Cumming was allocated a room on her own as she seemed a "bit concerned that people were talking about her" with her own room assisting her to gain more confidence leading eventually to her undertaking other administrative tasks. There was further assistance in the form of attending computer courses and practising in the office. At the time, according to Horstman, Cumming was "really enthusiastic. She was actually pleased to be learning those skills". Horstman had no knowledge of previous RCOs being provided with training in the same terms as Cumming. Whilst Cumming became more comfortable undertaking administrative tasks she mentioned a few times she would rather remain "doing admin" than be an RCO.
[66] On 13 July 2012 Horstman forwarded the following email to Bannerman:
"Hi Mel
Di has cried while she has been working at reception for the last two days - she doesn't seem to be able to cope with the tasks she has been set. Belinda and Chelsea have needed to assist her to complete the necessary tasks which is making it difficult for them to complete their own work. Do we need to meet with Di to see she is coping with the role?"
[67] A meeting followed with Bannerman, Cumming and herself where an offer was made to Cumming to speak to someone at EAS which she accepted although there was some reluctance in the first instance. They left the meeting (which had taken 30 minutes) to allow Cumming some privacy.
[68] Under cross-examination, the evidence was that whilst Cumming was on alternate duties she initially reported to Horstman through until July 2012 when Bannerman became her direct line manager [Transcript p. 3-54]. Towards the end of 2011 Cumming was given the task of delivering mail to a number of residential houses (with the approval of Bannerman) although she was not required to perform that task at the residential house she had been stood down from [Transcript p. 3-57]. Horstman acknowledged her earlier evidence (in cross-examination) about being Cumming's line manager at Bris West was confused in that a person by the name of "Louise" had formally been the line manager [Transcript p. 3-60]. In respect of the database search of WIRFs undertaken by Horstman, it was accepted she had retrieved the documents but had no formal involvement with the forms [Transcript p. 3-63]. After being taken to a number of issues regarding the processing of WIRFs completed by Cumming, it was accepted by Horstman that "unfortunately no system is infallible" [Transcript p. 3-77]. Horstman had observed Cumming distressed and crying on a number of times particularly in May - June 2012 [Transcript p. 3-75]. At the meeting with Bannerman and Cumming on 13 July 2012 it was the evidence that Cumming cried before and throughout the meeting [Transcript p. 3-76] and there were many attempts to console her. Horstman confirmed it was Bannerman who instigated the telephone call to EAS for the purposes of having a counsellor talk to Cumming. Horstman did not accept Bannerman had "pushed" the phone at Cumming. Horstman conceded that she was not Cumming's line manager but had a role supervising her to primarily make sure she had something worthwhile to do [Transcript p. 3-78].
[69] In re-examination Horstman had no recollection of Cumming (in the 13 July 2012 meeting) ever raising the name Brian Hazell.
Gleeson
[70] Gleeson, a Senior Advisor (Ethical Standards) with Communities, Child Safety and Disability Services was involved in the complaints lodged against Cumming initially maintaining the file while the matter was referred to another Agency and subsequently writing a report. A chronology [Exhibit 27] was prepared by him which documented a summary of reasons for the delay in completing the investigation.
[71] The summary identified matters including:
complaint received by Ethical Standards and assessed as suspected official
misconduct on 11 February 2011;
referred to CMC pursuant to s 38 of the Crime and Misconduct Act 2001 and ASCRS. Instructed to make a QPS referral due to the criminal nature of the complaint - 1 March 2011;
file assigned to Ethical Standards to monitor referrals - 8 March 2011; CMC refer assessment to Ethical Standards - 23 March 2011; Ethical Standards made regular contact with QPS investigation and
requested by QPS to delay administrative investigation for fear of
compromising QPS investigation - March - June 2011;
QPS advise Ethical Standards it would be some weeks before key witnesses
could be interviewed - 20 June 2011; Ethical Standards following enquiries to QPS were advised subject officers
were yet to be interviewed - 17 August 2011;
QPS advise Ethical Standards there was insufficient evidence available to prosecute any departmental employee QPS investigation completed - 1 September 2011;
Ethical Standards commence their own investigations - request copy of
QPRIME report - 10 September 2011; Ethical Standards investigator seconded to another work unit -
20 September 2011;
issues accessing police information - 3 - 14 October 2011; Terms of Reference drafted and approved - 20 October 2011; investigator contacts Cumming and arranges interview - 8 November
2011;
Cumming interviewed by investigator - 16 November 2011; Ethical Standards investigator's temporary employment contract ceased
new investigator appointed - 31 December 2011;
investigations recommence - witnesses interviewed in relation to parallel
complaints against Cumming - 9 January 2012; QPS file received - 13 January 2012; Cumming advises all communication to be through the Australian Workers'
Union, Union of Employees (AWU) - 24 January 2012; investigator spoke to Cumming over telephone - 25 January 2012; review by new investigator indicated additional concerns - broader
investigation - new Terms of Reference considered - 16 February 2012;
new Terms of Reference signed off - Cumming advised - 20 March 2012; constant activity on file during fore-mentioned period - 26 March 2012; Cumming contacted 5 May 2012 interviewed 15 May 2012; constant activity predominately into parallel complaint - 21 June 2012; Ethical Standards investigator's temporary employment contract not
renewed - file allocated to Ethical Standards manager for completion -
5 July 2012;
detailed to an investigator to complete report - 17 July 2012; report submitted for review 8 August 2012 signed off 21 August 2012; finding and recommendations accepted by delegate - 23 August 2012; and outcome advice sent to Cumming - unsubstantiated - 3 September 2012. [72] There was contact made with Cumming in the form of written correspondence and/or verbally (initiated by either party) on the following dates:
20 October 2011; 8 November 2011; 16 November 2011; 24 January 2012; 25 January 2012; 20 March 2012; 3 May 2012; 15 May 2012; and 21 September 2012. [73] The evidence-in-chief expanded on areas of the chronology explaining with some clarity the reasoning for factors associated with the investigation of the complaints against Cumming that contributed in the delay in finalising the investigation.
[74] Gleeson gave evidence that dealing with parallel complaints always provided a "challenge" and particularly when there was a crossover of allegations between complainants and subject officers. The termination of temporary employees was as a consequence of Government instructions and guidelines that temporary engagements were not renewed. There was a degree of complexity around the investigation process with the likelihood of termination if the allegations had been substantiated.
[75] Under cross-examination, the report into the investigation of the complaints against Cumming was tendered [Exhibit 28]. The document was substantial containing the evidence, analysis and findings in respect of the allegations against Cumming (one to five). There was extensive questioning around the Disciplinary Guidelines [Exhibit 29] issued by the Public Service Commission which identified the steps to be followed. In addition there were a number of Departmental documents relevant to the investigation tendered in the proceedings:
Policy - Reporting and managing suspected official misconduct [Exhibit
30]; Procedure - Reporting and managing suspected official misconduct
[Exhibit 31];
Facing the Facts [Exhibit 32]; First Terms of Reference - October 2011 [Exhibit 33]; and Second Terms of Reference - March 2012 [Exhibit 34]. [76] Gleeson confirmed that the allegations against Cumming included:
assault;
abuse;
threats; and tampering with documentation. [77] The allegations were initially referred to the CMC as a result of a duty to do so [Transcript p. 3-106]. The CMC, on consideration of the allegations, referred the matter back to Ethical Standards with a target time frame of 90 days to complete the investigation from the receipt of the investigation back from the CMC. In this case the 90 days could not be met because of the QPS involvement [Transcript p. 3-108].
[78] Gleeson confirmed that all the relevant material was included in the investigation report and material not listed was considered as not relevant [Transcript p. 3-112]. Gleeson confirmed that specifics of the allegations against Cumming included:
threw cup of liquid at one of the service users; struck service user in abdomen with keys on lanyard; verbally abused service user, with reference to "fucking little thief"; verbally abused service user "shut the fuck up"; told service user to physically shut up; slapped service user in the face, in response to being pinched immediately
following punching allegation; physically abused service user; and told staff to create false entries regarding service user [Transcript p. 3-115
to 3-116].[79] Gleeson gave further evidence around the conduct of the investigators relevant to the investigation [Transcript p. 3-120], acknowledging a failure which required the need to draft a new Terms of Reference [Transcript p. 3-121]. There was a delay in the process (around the time of the interview with Cumming) due to the first Terms of Reference not being drafted correctly [Transcript p. 3-123]. In terms of the second interview with Cumming, the witness conceded there was no need for a second interview [Transcript p. 3-124].
[80] On whether an investigation of this nature could be conducted within the aspirational 90 day timeframe Gleeson replied:
"Depending on the work load, sir, a lot of the times, but an investigation obviously would be dependent during the investigation which way it travels as well. A simple complaint with multiple allegation can - during the investigation other allegations can be identified. Substantive terms of reference may be sought, other witnesses may be sought. Primary witnesses or subject officers may be on leave." [Transcript p. 3-132]
[81] Gleeson accepted the investigation into the allegations against Cumming could have been completed and finalised before the other investigations but as all the staff plus witnesses came from the same area "finishing one is probably not an appropriate way to do things anyway" [Transcript p. 3-136]. On whether the investigation was complex for reasons relating number of witnesses and allegations, it was Gleeson's evidence that was not the case [Transcript p. 3-139]. However the complexity was said to be:
parallel complaints; subject officers - complainants; sensitivity of the issues [Transcript p. 3-139].
[82] In response to a question from the Commission as to why this was a complex investigation, Gleeson stated:
"I stated before that the complex of the investigation did revolve around the allegations against persons with a disability and also the fact that there was three to four other subject officers involved in the matter, that the difficulties in arranging with the subject officer as - have their interviews conducted. There are difficulties of having them provide a complainant statement at the same time, and when I - you mentioned confidentiality and sensitivity of the whole matter. It was attempting to ensure that the witnesses were provided with the confidentiality that they should have, and that is essentially my response." [Transcript p. 3-141]
[83] In terms of the QPS investigation, the content of the QPRIME report was beneficial in the conduct of an administrative investigation but there was nothing in the report that warranted the making of further inquiries [Transcript p. 4-2]. Gleeson received an email on 26 July 2012 from a senior consultant for investigations in the Brisbane Region about the time frames of the investigation report due to concerns of a potential WorkCover application of a subject officer due to stress induced by the investigation process at which time he undertook to submit both reports to Ethical Standards by 10 August 2012 [Transcript p. 4-6]. The report was finally completed on 21 August 2012.
Yates
[84] Yates, a Service Manager with DSQ, in February 2011 had contact with Cumming by telephone on 4 and 7 February 2011. His evidence-in-chief was in effect the content of two file notes relating to conversations with Cumming on those days [Exhibit 40].
[85] The first of the file notes recorded Yates having received verbal allegations against Cumming on 4 February 2011 and having rang her at 4.15 pm (on that day) to inform her of the allegations and that she was unable to work in that arrangement whilst the allegations were being responded to and therefore could not undertake her shift that evening. Cumming was further told:
for her safety she could not return to the workplace at this time; he could not divulge details of the allegations (at that time); suggested Cumming consider calling EAS; she would be paid for the shift that evening; and he would keep her informed when it was applicable to divulge details of
the allegations.
[86] Yates was aware Cumming was to commence leave for the next fortnight which Cumming informed him was not for recreational purposes but for medical reasons. The phone reception was described as "often poor" with Cumming calling back some several minutes later however the reception remained unclear. Whilst much of the conversation was missed he recalled Cumming's saying she knew "who the little prick was" that made the allegation, naming Matt Gunning. In the first phone call Cumming had told him the allegation was "pay back" for a complaint she had lodged last year.
[87] The second file note recorded that Cumming had phoned Yates at approximately 9.45 am on 7 February 2011 (on a mobile phone that dropped out of service throughout the conversation) and made a number of complaints about Yates having failed to act on previous issues raised by her. Cumming, who was crying, was "verbally abusive about other members of her team". Arrangements were made for Cumming to meet with Yates at 4.00 pm that afternoon at which time she presented him with a letter that contained three complaints about staff members:
drinking on duty; allowing a service user to run down the street; and staff member taking a service user home.
[88] Cumming told him of health issues she was experiencing, of difficulties with her family and particularly her ex-husband. She could not believe she had been accused of abuse and when Yates informed her he had not mentioned abuse at any time during their conversation, Cumming presumed it was that, as she had been moved from the environment.
[89] Yates mentioned that EAS may be an option to which Cumming informed him she had tried that service and had not been satisfied with it.
[90] Yates testified that the first file note was written "basically after the conversation" with the second one the day after the conversation. In his view the contents were true and correct.
[91] Under cross-examination Yates confirmed the 4 February 2011 conversation was on a poor line and initially lasted approximately 15 minutes and that in terms of his notes taken at the time Cumming had used the word "little prick" to describe a person she was upset with and not the term 'bugger" [Transcript p. 4-51].
Corr
[92] Currently an employee of Queensland Health, Corr was a Senior Advisor for safety, wellbeing and injury management with the Department of Communities in 2012. In the course of her work at the Wacol site she got to know Cumming who was working at the same location. She had limited contact with her but later was involved in a meeting with Bannerman and Cumming in early June 2012 for the purposes of getting an early intervention plan for Cumming because she was having troubles getting her thoughts together for a show cause letter she needed to complete. The early intervention program was declined in circumstances relating to her being under investigation. In mid June 2012 Bannerman showed her a letter from Dr Hazell which was supportive of Cumming wanting a permanent administrative role instead of going back to RCO duties. There were concerns that Cumming who had 34 visits to Dr Hazell "didn't seem to be getting better". Corr asked Cumming if she (Corr) could work with her General Practitioner for the purposes of getting a certificate regarding her current status. Bannerman told Cumming that her only option was to transition back to her RCO position as there were no administrative positions being created as may have been the case previously. Both Bannerman and Corr were supportive with Cumming thanking them at the end of the meeting. Corr had sought to get information from the General Practitioner even though there was no WorkCover claim at the time.
[93] Under cross-examination Corr gave evidence of the circumstances around the early intervention program and that an application was never submitted as the program could not be used for show-cause or staff under investigation [Transcript p. 4-29]. Bannerman approached her about the early intervention program on 27 April 2012 [Transcript p. 4-30]. Corr had been shown correspondence from Dr Hazell (dated 15 June 2012) which had diagnosed Cumming as suffering from a psychiatric condition and despite Dr Hazell offering to discuss the matter further, it was Corr's view it would be best to contact her General Practitioner [Transcript p. 4-34]. Corr had suggested to Cumming in the meeting that after 34 visits with Dr Hazell, maybe it was not the right fit and would not do any harm to try a different Psychologist [Transcript p. 4-37]. Corr had formed a view prior to the meeting that Dr Hazell was not giving Cumming adequate care [Transcript p. 4-38]. Corr had been given advice by a manager to pursue contact with Cumming's General Practitioner [Transcript p. 4-39].
[94] Cumming at the meeting spoke of the effect the length of the investigation was playing on her mind as well as the second lot of allegations [Transcript p. 4-39]. Corr was questioned regarding an email [Exhibit 39] which she had forwarded to Cathy Taylor (on 8 August 2012) in which it was stated:
"A new 'Psychological Injury' claim has been lodged by Diane Cumming, this has come about due to the stress she has been under due to the length of time her investigation process has taken which I believe is approximately 18 months.
I am not sure if WorkCover would deem 18 months as reasonable management action if management were not to support his claim.
I phoned Diane today and she was very emotional and appeared too distressed to talk". [Transcript p. 4-43]
Note: This exhibit had the bottom section redacted and was tendered on the basis of the email being incomplete.
[95] In re-examination, it was Corr's evidence that when she wrote the email (8 August 2012) she had read Cumming's application for compensation. After the meeting with Cumming in July 2012 there was no follow up regarding contact with her General Practitioner. At the conclusion of the meeting Cumming was crying but was thankful for their support.
Bannerman
[96] Bannerman was the Manager of the Wacol Service Centre for DSQ when she first became aware of Cumming in 2010 as an RCO, although she did not have a direct managerial role of Cumming. In describing the managerial structure, she identified the following positions:
Senior Manager - Assistant Regional Director; Service Centre Manager (Bannerman); Service Managers; Team Leaders; and RCOs (Cumming).
[97] Bannerman described the two service users subject of the complaint against Cumming as suffering from profound intellectual disability which meant in effect they had a profound impairment in their cognitive ability to perform most tasks. They were not able to speak, had no alternate forms of communication and required assistance in every aspect of their daily living.
[98] In undertaking the role of a RCO amongst other duties there was a requirement to undertake some clerical duties that included:
statutory recording around positive behaviour support plans; record keeping of correspondence; and record keeping of "anything that's happened during the day".
The role was not just hands on but involved clerical work as well.
[99] In October 2010 one of the families (of the service user) raised informally concerns around the general cleanliness of the house, meal time plans not followed, medical appointments not being followed up and conduct of some staff on duty. As a consequence of the complaint Bannerman and Yates ran a workshop with the team (of which less than half attended) in an effort to build a better environment. In February 2011 the family requested a meeting with Bannerman and the new service manager as things had not improved at the house and they wanted to formalise a complaint. At around the same time Cumming and another staff member had raised concerns about colleagues and those colleagues had raised concerns against them.
[100] In terms of the staff named in the complaints, the matter had to be referred to Ethical Standards who undertook an initial assessment and then made recommendations how to manage those staff in the workplace. As there were allegations of assault in a "double-up situation" it was deemed by the delegate to assign them duties in the office. Bannerman advised Cumming (by phone) of her assignment to alternate duties and when Cumming reported for work it was found she had very little administrative skills to the extent she was not able to operate the photocopier. Further she informed Bannerman she did not want to work in an office where she would have to have contact with colleagues and to face people. Cumming had told her she did not want to be in a position where she had to explain to people why she was in the office. Due to the level of distress Cumming exhibited it was decided to put in some arrangements were she was initially based at a neighbouring office where it was likely the work allocated to her would have been of a clerical nature. Bannerman, a short time after decided, following reports of Cumming crying at work, to bring her back to the office. Cumming on her return was given support in terms of:
learning to use the email; learning to use the photocopier; learning how to operate the book binding equipment; and computer courses.
Did Cumming's injury arise out of or in the course of employment
[183] The medical evidence before the proceeding from Dr Meyrick was that at 8 August 2012 outstanding workplace allegations, workplace harassment and bullying were causative of Cumming's psychiatric/psychological injury.
[184] Dr Chau had opined that as a result of false allegations (work-related) made against Cumming, she had symptoms of an adjustment disorder with mixed anxiety and depressed mood which is a direct correlation between Cumming's medical condition and the employment.
[185] Therefore I conclude that Cumming did suffer a personal injury that arose out of or in the course of her employment in accordance with the Act.
Was Cumming's employment a significant contributing factor to her personal injury
[186] On examination of the medical records relating to Cumming's attendance at the Medical Centre from which Dr Meyrick practiced they indicate that in the period from 19 February 2010 until 21 September 2010 she sought medical attention on 11 occasions, none of which related to mental health issues and it was only after the allegations against her in February 2011 did mental health issues start to feature in the consultations with the General Practitioner with some regularity.
[187] Cumming gave evidence of submitting a number of WIRFs [Exhibits 13 to 17] in May, June and July 2012 which recorded incidents relating to stress, criticism and bullying as a consequence of work-related incidents which I accept that when combined with the medical evidence before the proceedings presents strong argument that the medical condition and employment were inter-related.
[188] I am satisfied that the personal injury suffered by Cumming was as a consequence of her employment being a significant contributing factor to the injury.
Whether the operation of s 32(5) of the Act excludes Cumming's personal injury on the basis of reasonable management action taken in a reasonable way
[189] On 4 February 2011 there were serious allegations levelled against Cumming in that as an RCO in the discharge of her responsibilities she had assaulted two intellectually impaired persons under her care. The initial response of the Department was to extract Cumming from the work location and as the matter was assessed as suspected official misconduct, it was referred to the CMC who in turn on 1 March 2011 instructed the matter be referred to the QPS due to the criminal nature of the complaint.
[190] The action to remove Cumming immediately from the subject work area and refer the complaint to the CMC was correct in that it complied with Departmental policies and procedures and was undertaken in a timely fashion.
[191] The stressors relied upon by Cumming as causative of her psychiatric/psychological injury were:
failing to take disciplinary investigation in a timely manner and failing to adhere to principles of natural justice during the course of the disciplinary investigation (Stressor 1); the unreasonable redeployment of the Appellant during the course of the disciplinary investigation, including by virtue of a number of matters set out in the Statement of Stressors (Stressor 2); ongoing intimidation, harassment, bullying and/or discrimination by
Bannerman (Stressor 3); ongoing intimidation, harassment, bullying and/or discrimination by various colleagues upon redeployment of the Appellant to Bris West (Stressor 4); and intimidation, harassment, bullying and/or discrimination by Sumpton (Team Leader) directed at and towards the Appellant in the presence of Greta Merrit, Parry and/or Kim Woodford (Stressor 5).
[192] In the course of the proceedings it is not controversial that Stressor 1 was clearly the nominated principal stressor with far less reliance placed upon the other named stressors.
Stressor 1
[193] In terms of the disciplinary investigation the time period from the time of the allegations being lodged against Cumming and advice of the outcome to her was a period of 19 months which on the face a significant period of time for such an investigation. Therefore it is necessary to forensically examine the investigative process to establish whether there were flaws in the management of the said process that attributed to this timeline.
[194] The investigation was in the first instance removed from the Ethical Standards control with the involvement of the CMC and then the QPS. There had been a clear request from the QPS to withdraw from any involvement whilst the matter was in their hands which Ethical Standards correctly complied with. This period of the investigation encompassed a period of seven months during which time, according to Gleeson's evidence, Ethical Standards had made regular contact with the QPS to seek updates on the progress of the investigation. As the Department had absolutely no control of this stage of the investigation, it is devoid of criticism or challenge relating to the timeliness of this phase of the investigation.
[195] The investigation upon being returned to Ethical Standards in September 2011 proceeded in an appropriate manner albeit there were some issues in relation to obtaining information from the QPS which in effect was not provided until 13 January 2012. Terms of Reference were approved and the investigator arranged and conducted an interview with Cumming on 16 November 2011. The temporary employment contract of the investigator ceased on 31 December 2011 without the investigation being concluded leaving Ethical Standards with the only option being the appointment of a new investigator in January 2012.
[196] The new investigator recommenced the process undertaking interviews with witnesses in relation to parallel complaints against Cumming after which it was decided that due to the investigation being broader, new Terms of Reference were required which were not approved until 20 March 2012. The evidence suggests that in this period there was constant activity being undertaken in relation to the investigation. Cumming was required to present for a further interview on 15 May 2012 however prior to the finalisation of the investigation the second investigator's temporary employment contract was not renewed due to the incoming State Government's overall policy of downsizing across the Public Service.
[197] Ethical Standards appointed a further investigator to complete the report on 17 July 2012 with a final document submitted for approval on 8 August 2012. The delegate accepted the findings of the report and signed off on 23 August 2012. Cumming was advised on 3 September 2012 that the allegations had not been substantiated.
[198] The departure of two investigators from Ethical Standards in the course of the investigation was, by all accounts, unfortunate however the question the arises as is whether this could be directly attributed to those with the responsibility for managing the investigation. There is no evidence to support such a proposition.
[199] The decision to discard the original Terms of Reference and develop a replacement set had the effect of delaying the process however, was that an unreasonable decision in the circumstances where the parameters of the investigation had widened on the assessment of the new investigator. To have continued the investigation with inadequate Terms of Reference would have potentially impacted the outcome which may have ultimately not been in the interests of either Cumming or the Department, or for that matter natural justice.
[200] Ethical Standards faced with the loss of a second investigator did, in the circumstances, respond in a timely fashion appointing a third investigator to conclude the process with the report being delivered to the delegate in a reasonable time line for approval or otherwise.
[201] The investigation had taken, in my view, an inordinate amount of time to complete, however there were circumstances in play such as the QPS involvement, exiting from employment of not one but two investigators in the course of the investigation and parallel complaints, all of which occurred outside the control of those managing the process and happened not as a consequence of any unreasonable management action.
[202] In the period of the investigation from 20 October 2011 until 21 September 2012 there was contact between Cumming and those managing the investigation on no less than nine occasions which would have given Cumming ample opportunity to raise concerns about the length of the investigation, however there was no evidence before the Commission that Cumming availed herself of that opportunity.
[203] The management of the investigation, whilst not perfect, was in my view undertaken in a reasonable manner considering the circumstances and cannot be categorised as unreasonable management action taken in an unreasonable manner.
[204] In terms of reasonable management action not necessarily being perfect, Hall P in
8
Q-COMP v Hohn stated: "The passage is simply wrong. The noun 'blemish', which was first used in Bowers v WorkCover Queensland (2002) 170 QGIG 1, has always been used in connection with a discussion about whether an imperfection in management action justifies characterisation of the management action (or its implementation) as unreasonable. The authorities do not suggest that identification of a 'blemish' or other 'minor impairment' has anything to do with causation."
[205] In Halsen v WorkCover Queensland[9], IM Taylor had stated:
"The purpose of the guidelines in respect of disciplinary processes is to ensure fairness, natural justice and accountability of the responsible officer through open and structured procedures. That is a laudable aim. In order to determine whether the employer's conduct towards the appellant was reasonable management action taken in a reasonable way the aim of the guidelines is an appropriate criterion.
Adopting that criterion I am unable to be satisfied, even having regard to the several flaws and deficiencies, that the employers conduct towards the appellant over the several issues and through the several officers involved was other than reasonable management action taken in a reasonable way."
[206] The reliance by Cumming that the failure to take the disciplinary investigation in a timely manner as causative of her psychiatric/psychological injury was not supported in the proceeding by the medical records tendered, as was the failure of Cumming to include any mention of this in the WIRFs lodged by her on:
14 May 2012; 15 May 2012; 14 June 2012; 12 July 2012; and 13 July 2012.
Stressor 2
[207] There was in effect no disagreement in the proceedings that following the allegations that were levelled against Cumming she could not continue to work in her regular environment whilst the investigations into the allegations were undertaken. Effectively there were two options available, being to:
stand Cumming down with pay; or redeployment.
[208] DSQ had previously relied upon the first option, however there was a changed position where redeployment became the favoured option.
[209] In the case of Cumming difficulties arose on the basis of an absence of skills to undertake any form of administrative activity which was the only area of employment available. The option of relocating her to RCO duties in another location was not available due to the seriousness of the allegations against her. The evidence confirms that Cumming's skills increased over time and it is of fact that she attended two computer courses at TAFE in work time paid for by the employer which resulted in her attaining computer skills. There was acknowledgement of times when there was limited work available but when Cumming's skill base is taken into account, expectations of available work would have to be at the lower end of the scale.
[210] Cumming, in her own evidence, indicated her preference was come to work rather than remain home as being at home on pay "was stealing money" [Transcript p. 2- 19].
[211] The decision to redeploy Cumming despite the difficulties in such an arrangement as a result of her limited skills was reasonable management action taken in a reasonable way.
Stressor 3
[212] Cumming argued this stressor related to ongoing intimidation, harassment, bullying and/or discrimination by Bannerman who, for a period of Cumming's redeployment, had herself been seconded to another role returning in June 2012. In narrowing the complaint against Bannerman, it would seem that meetings on 10 and 13 July 2012 were the events that were said to be causative of Cumming's decompensation. The meeting of 10 July 2012 involved, Bannerman, Corr and Cumming and in a file note [Exhibit 42] prepared by Bannerman following the meeting, she recorded amongst other things:
Cumming was unlikely to be offered an alternate position; Cumming was proud of the administrative skills she had developed; Corr had offered to work with Cumming and her General Practitioner to
support her returning to her RCO position; concerns about Cumming's wellbeing noting over 30 visits to her
Psychologist; and Cumming thanked them both at the end of the meeting.
[213] Bannerman's evidence was the meeting was convened following the receipt of correspondence from the Psychologist (Dr Hazell) indicating Cumming should be permanently transferred to administrative duties.
[214] Cumming had a different recall of the meeting however I have preferred the versions of both Bannerman and Corr which indicated the meeting had been for providing assistance to Cumming to return to her RCO position and was, in my view, a reasonable course of action for a person in Bannerman's role to have pursued.
[215] Cumming was requested to attend the meeting of 13 July 2012 as a result of Horstman observing her in a state of "upset". The actions of Bannerman in contacting EAS and having Cumming receive counselling by telephone appeared to be on the evidence the factor causing concern. Again Cumming held a different recall of the meeting and whilst casting aspersions on Bannerman (in particular) for her conduct, her account is
somewhat "muddied" by the note she left for Bannerman immediately following the
meeting which stated:"Thank you Mel for your help and concern. Well appreciated. Diane."
[216] The meeting on 13 July 2012 was of a nature that could reasonably be described as appropriate management action.
Stressor 4
[217] There was insufficient evidence regarding this stressor for any finding to be made nor was there any contemporaneous records of complaint having been made by Cumming against various colleagues whilst on deployment.
Stressor 5
[218] Cumming, whilst on deployment, accepted an invitation from a couple of team leaders to attend some training at a residential house despite being aware that whilst there was an investigation of allegations against her was prohibited from attending such houses. Sumpton upon noticing Cumming in a vehicle and being aware of "some work restrictions" had the vehicles departure held up whilst she sought advice from her manager. Sumpton returned to the vehicle and informed Cumming she was not to attend the planning day because of her restrictions.
[219] Parry supported the evidence of Cumming that Sumpton was abrupt in the tone used when telling Cumming to "get out of the car now" although the incident was not of a nature to warrant making a complaint. Sumpton herself in cross-examination conceded her tone may have been abrupt.
[220] In accepting that Sumpton's tone with Cumming on the day in question was inappropriate, it would seem to be drawing a "long bow" that this particular exchange was in effect the event causative of Cumming's decompensation. Sumpton's behaviour, whilst not perfect, could reasonably be described as a "blemish" and certainly not as unreasonable management action taken in an unreasonable way.
[221] Cumming has failed to establish on the requisite standard of proof that the management action said to be causative of her personal injury was unreasonable management action taken in an unreasonable way by the employer in connection with her employment.
Finding
[222] Having considered the evidence, material and submissions before the proceedings, I make the following findings:
Cumming was for the purpose of s 11 of the Act at all relevant times a
"worker"; Cumming sustained a personal injury in the form of a
psychiatric/psychological injury pursuant to s 32 of the Act;
the personal injury sustained by Cumming arose out of, or in the course of her employment and the employment was a significant contributing factor to the injury; and
the personal injury is excluded from being compensatable by the
operation of s 32(5)(a) of the Act:"reasonable management action taken in a reasonable way by the
employer in connection with the worker's employment".
[223] The Appeal is dismissed and the decision of Simon Blackwood (Workers' Compensation Regulator) of 8 February 2013 is confirmed.
[224] The Appellant is to pay the Regulator's costs of and incidental to this Appeal to be agreed or, failing agreement to be the subject of a further application to the Commission.
[225] I order accordingly.
Decision
[1] Diane Cumming (Cumming) lodged with the Industrial Registrar a Notice of Appeal pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of the Q-COMP Review Unit (Q-COMP) released on 8 February 2013. Since the filing of the Appeal, a number of amendments have been made to the Act which include the Respondent to the Appeal being abolished and from 29 October 2013, the new name replacing Q-COMP is that of Simon Blackwood (Workers' Compensation Regulator) (the Regulator) who, in turn, becomes the Respondent to the Appeal.
[2] The decision of the Regulator was to confirm the decision of WorkCover Queensland (WorkCover) to reject the Appellant's application for compensation in accordance with s 32 of the Act.
Relevant Legislation
[3] The Legislation pertinent to this Appeal is 32 of the Act:
"32 Meaning of injury
(1)
An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
(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.
(2) However, employment need not be a contributing factor to the
injury if section 34(2) or 35(2) applies
WorkCover Queensland v Margaret Kehl [2002] QIC 23
Paul Delaney v Q-COMP Review Unit [2005] QIC 11
3
Wei v Minister for Immigration, Local Government and Ethnic Affairs (1991) 29 FCR 455
Paul Delaney v Q-COMP Review Unit [2005] QIC 11
Q-COMP v Craig Hohn [2008] 187 QGIG 139
Glen Rowe v Q-COMP [2009] 190 QGIG 93
Tamara Jones AND Q-COMP (WC/2009/46) - Decision <
8
Q-COMP v Craig Hohn [2008] 187 QGIG 139
Paula Halsen v WorkCover Queensland - Unpublished - Decision of Magistrate I.M. Taylor - 15/11/01
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