Family Day Care Association of Qld Inc v Workers' Compensation Regulator
[2016] QIRC 43
•15 April 2016
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Family Day Care Association of Qld Inc v Workers' Compensation Regulator [2016] QIRC 043 |
PARTIES: | Family Day Care Association of Qld Inc v Workers' Compensation Regulator |
CASE NO: | WC/2015/103 |
PROCEEDING: | Appeal against a decision of Workers' Compensation Regulator |
DELIVERED ON: | 15 April 2016 |
HEARING DATES: | 24, 25 and 26 June 2015 |
HEARD AT: | Brisbane |
MEMBER: | Industrial Commissioner Thompson |
| ORDERS: | 1. The Appeal is dismissed. 2. The Decision of the Workers' Compensation Regulator dated 2 April 2015 to set aside the decision of WorkCover Queensland to reject the application for compensation and substitute a new decision to accept the application in accordance with s 32 of the Act is upheld. The claim is one for acceptance. 3. The Appellant is to pay the Regulator's costs of and incidental to this Appeal. Should the parties not reach agreement with regards to costs a further application can be made to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION ‑ APPEAL AGAINST DECISION ‑ Decision of Workers' Compensation Regulator ‑ Appellant bears onus of proof ‑ Standard of proof ‑ Balance of probabilities ‑ Witness evidence ‑ Worker sustained |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 s 11, s 32, s 550, s 558 WorkCover Queensland v Kehl (2002) 170 QGIG 93 |
| APPEARANCES: | Mr M. Healy of Counsel, instructed by Livingstones for the Appellant. |
Decision
Family Day Care Associate Qld Inc (Appellant) lodged a Notice of Appeal with the Industrial Registrar on 21 April 2015 pursuant to s 550 of the Workers' Compensation and Rehabilitation Act 2003 (the Act) against a decision of Workers' Compensation Regulator (the Regulator) dated 2 April 2015.
The decision of the Regulator was to set aside the decision of WorkCover Queensland (WorkCover) to reject an application for compensation from Lisa McConnell (McConnell) and substitute a new decision to accept the application in accordance with s 32 of the Act.
Relevant Legislation
The Legislation pertinent to this Appeal is s 32 of the Act:
"32 Meaning of injury
(1)An injury is personal injury arising out of, or in the course of, employment if
…
(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;
(c)action by the Regulator or an insurer in connection with the worker's application for compensation."
Nature of Appeal
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
The standard of proof upon which an Appeal of this nature must be determined is that of "on the balance of probabilities".
Evidence
In the course of the proceedings, evidence was provided by ten witnesses.
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
The witnesses for the Appellant were:
· Peta McNellie (McNellie);
· Tracey Robinson (Robinson);
· Debby Joyce (Joyce);
· Brad Harris (Harris); and
· Dr Vladan Ljubisavljevic (Dr Ljubisavljevic).
The witnesses for the Regulator were:
· Dr Anna Masel (Dr Masel);
· Peter McConnell (Peter McConnell);
· Lisa McConnell (McConnell);
· Paul Carson (Carson); and
· Dorathea Vallianos (Vallianos).
Appellant
McNellie
McNellie is the Executive Manager of the Appellant organisation which operates multiple services across the State with each of the services employing a manager whom has the responsibility to engage, employ, induct and train staff to operate the service. The organisation has a wide range of policies around the recruitment, engagement and induction of staff and hold an annual Retreat (since 2008) where an external facilitator is engaged and staff are required to attend and participate in this event. The benefits of the Retreat were said to include:
· help staff feel part of the whole team;
· build connections across the organisation;
· opportunity to be heard and participate in the process; and
· attend a gala dinner.
McConnell who was employed as an administration officer signed a position description on 18 June 2012 which required her to contribute to team development and growth which would require her attendance outside working hours at professional development activities. McConnell had fixed hours of employment (8.30 am to 3.00 pm) to suit her family responsibilities with a half‑hour lunch break.
There was a requirement for McConnell to comply with all policies of the organisation which required her to attend the work Retreat scheduled for 28 and 29 August 2014 with all staff being initially advised in February 2014 and then further advised regarding matters of accommodation in or around August 2014. If a staff member had any issues about attending they were expected to have a conversation with their line manager as soon as they became aware of their situation. McConnell's operations manager at the time Janine Galea (Galea) contacted her (a week before the Retreat) about McConnell having advised Robinson of her inability to attend the Retreat due to child care difficulties.
A staff induction policy had been developed prior to McConnell commencing employment and it was McNellie's evidence that whilst she had not observed McConnell being taken through the process by her line manager she had expectations that it had occurred.
McNellie gave evidence about the August 2014 Retreat that had been attended by 65 or 66 people and in particular the activities were undertaken in accordance with the program outline. Participation included those present being part of various teams (usually with co‑workers) with all making contributions along the way. McConnell would have been expected to provide input in respect of issues such as organisational values and to participate in feedback regarding her Retreat experience. There was also the opportunity to interact with other administration staff from the organisation with all of the activities relevant to the employment.
The facilitator ensured the Retreat timetable was adhered to with the sessions being:
· Thursday 28 August 2014 ‑ 9.00 am to 4.00 pm; and
· Friday 29 August 2014 ‑ 9.00 am to 3.00 pm.
Had McConnell attended the Retreat her hours of work in total would have been 11 hours when lunch breaks were taken into account as opposed to 12 hours had she worked in the office. Of the 18 offices operating across the State by the organisation, 17 closed for the two days of the Retreat with only an outside school hour's facility operating. The attendees at the Retreat were all the full‑time employees with the exception of two staff whom had previous approval to take leave (overseas holidays), a staff member from Mackay who was unwell and a staff member from Kingaroy who had previously advised of family circumstances that prohibited her attendance.
Under cross‑examination McNellie had no direct knowledge of whether the Mackay employee who missed the Retreat had provided medical certification and in the case of the Kingaroy employee her notification regarding her non‑attendance was "raised fairly‑shortly before the Retreat because her husband was recalled to work" [Transcript p. 1‑56]. McNellie was unaware whether there were multiple phone calls to the Kingaroy employee in an attempt to address her child care issue [Transcript p. 1‑57]. On Robinson's involvement with McConnell around her inability to attend the Retreat, that had occurred as a result of her line manager being absent [Transcript p. 1‑57]. The organisation had reached agreement with McConnell about her hours of work so she could meet her family obligations [Transcript p. 1‑59]. McNellie conceded that McConnell's employment contract did not explicitly state the requirement to attend the Retreat and she had not thought to make it a specific term and condition of the contract, despite the importance of the Retreat to the organisation although it remains under consideration at present for future contracts [Transcript pp. 1‑60 to 1‑61]. There were no contractual provisions requiring McConnell to be away from home overnight [Transcript p. 1‑62] nor was there any obligation to make herself available to attend the Retreat in her position description [Transcript p. 1‑63].
The role undertaken by McConnell was acknowledged to be a basic clerical and administrative role without any responsibility to "act up" as a co‑ordinator [Transcript p. 1‑63]. On the induction process it was McNellie's evidence that she expected an induction to be concluded within a month [Transcript p. 1‑65]. On the purpose of the Retreat being about a "fairly high level of strategic planning" McNellie did not accept that proposition giving evidence it was about all levels of staff having input into the strategic plan and vision [Transcript p. 1‑68]. McNellie acknowledged there were items on the Retreat agenda for either day that were relevant to McConnell's administrative role [Transcript p. 1‑70]. There was no specific engagement with the staff unable to attend the Retreat to gather their input prior to the event taking place [Transcript p. 1‑70]. The organisation had monthly meetings at each location which assisted in building teamwork and rapport within the organisation [Transcript p. 1‑72].
There was no issue with the failure of McConnell to attend the previous Retreat as she had provided medical certification regarding her son whom was ill at the time [Transcript p. 1‑72]. One month prior to the Retreat McNellie made a statement about someone being unable to attend in certain circumstances and it was the case of the Kingaroy staff member there was no criticism about her conduct. There was no criticism about the way in which McConnell had raised the issue regarding her circumstances [Transcript p. 1‑73].
In terms of the steps taken by the organisation to try and assist McConnell to enable her attendance at the Retreat she had a conversation with Galea about how they could provide assistance [Transcript p. 1‑74]. The expectations were that McConnell would attend the full Retreat and it was her evidence it was fair for the organisation to expect once every two years staff would be flexible in their work hours to attend the event particularly as McConnell had been able to demonstrate she could work longer hours in the school holiday period [Transcript p. 1‑75]. McNellie was unaware McConnell had indicated a willingness to attend the Retreat during the day but was aware none of the child care options which Robinson tried to arrange were considered by McConnell as suitable [Transcript p. 1‑75]. McNellie accepted the proposition if McConnell was willing to attend the Retreat during the day there would have been no reason for the organisation to have stood her down [Transcript p. 1‑76].
McNellie denied having issued any instruction that McConnell be stood down without pay for failing to attend the Retreat and matters contained in correspondence from McConnell (dated 29 August 2014) about events leading up to the Retreat and after was "new information" to her [Transcript p. 1‑78]. On the difference between the situation of the Kingaroy staff member and McConnell it was said "that McConnell's information had appeared to change over time. Initially it was I can't attend, so staff engaged with her to find out what they could do to support her to attend, and that it was difficult to get a clear answer, so the constant conversations was about clarifying that circumstance" [Transcript p. 1‑80]. McNellie conceded that ultimately she was placed in exactly the same scenario as the Kingaroy staff member, yet she was treated differently to that staff member because her circumstances were different [Transcript pp. 1‑80 to 1‑81]. McNellie did not accept that McConnell receiving two and sometimes three telephone calls a day in relation to the attendance or non‑attendance at the Retreat could be considered "badgering" [Transcript p. 1‑84].
In re‑examination McNellie gave evidence regarding:
· monthly staff meetings
·two to three hours duration
·dealt with day‑to‑day operations
·part of professional development
· Retreat
·facilitated by an organisational psychologist
·opportunity to contribute, build networks
·dinner ‑ social activity opportunities.
On the differences between the Kingaroy staff member and McConnell it was the case Kingaroy was a two and a‑half hour drive whilst McConnell's trip was 47 kilometres. On the possibility of McConnell attending the Retreat for reduced hours McNellie believed that would have been of benefit and she would have had a conversation how that may have worked although she definitely had wanted her there at start time. Of the ten administrative positions in the organisation eight attended the Retreat in August 2014.
Robinson
Robinson a Regional Manager of the organisation works mainly out of her home in Maryborough and an office at Murarrie. The geographical area of her role includes her travelling anywhere from Warwick up to Cooktown. At the time the key events in this matter occurred (18 August 2014 to 2 September 2014) her area of coverage included Brisbane. In August 2014 she was a direct line supervisor for Joyce who was working at the Coorparoo office with her role being to support Joyce in all operational functions of her role.
In the period 18 August 2014 until 1 September 2014 she made five telephone calls to McConnell some of which were returned calls having missed calls from McConnell. A call on 1 September 2014 was abandoned when she realised it had been outside of McConnell's hours of work. On 18 August 2014 she returned a missed call and in a 10 to 15 minute conversation McConnell explained she would be unable to attend the Retreat which prompted a number of questions from Robinson around the issue of providing assistance with her child care to enable her attendance at the Retreat. The conversation ended with McConnell to talk to her husband and agreement she would talk to Joyce on her return to the office on 25 August 2014. Robinson during the conversation had focussed on the value of the Retreat and how McConnell's contribution would be appreciated, highlighting the importance of input from the administrative staff. The conversation was calm, respectful with neither party being aggressive in their manner. Robinson thought it was her role to explore options that may have assisted McConnell's attendance at the Retreat.
Robinson mentioned her daughter was attending university and had done some child care in the past and a meeting could be arranged between the two regarding child care support into the future. McConnell was very direct in rejecting this proposal simply stating "it wouldn't work for her". Prior to the telephone conversation she had no knowledge of what arrangements had been put in place by McConnell and others regarding their attendance at the Retreat.
On 25 August 2014 Robinson rang Joyce and informed her of the conversation with McConnell and requested her to clarify the current position. Joyce mentioned that she would raise with McConnell if there were any parts of the Retreat that could be attended. Robinson spoke to Joyce from the Murarrie office on the morning of 26 August 2014 where Joyce had advised she was home sick but had not spoken to McConnell which prompted Robinson to call McConnell herself on two occasions. On the first occasion McConnell stated she would be able to do part of the Retreat once she had dropped her children off but would have to leave early so as to pick her children up from school. Robinson undertook to talk to her line manager (Galea) and get back to McConnell. Following her call to Galea she again telephoned McConnell where she informed her it was not going to work coming to the Retreat for limited hours and would not offer much value for either party. McConnell asked if it was compulsory for her to attend the Retreat and was informed the organisation had high expectations for staff to attend as part of the practice and philosophy of the organisation. Robinson was seeking to convey to her that she took the opportunity to explore all the options.
On 27 August 2014 whilst at a managers strategic personal development day Robinson was involved in a three‑way telephone conversation with Joyce and McConnell as a consequence of a discussion with Galea who had been adamant about them having a discussion with McConnell to inform her she would be "stepped down" from duty for the two days of the Retreat if she failed to attend. There had been no discussion with Galea about whether the two days would be paid. In the conversation McConnell confirmed she would not be attending the Retreat at which time Robinson in made an effort to get a clear understanding around McConnell's comments if she was "made to go to the Retreat that you [she] would resign". She sensed some anxiety in McConnell and thought it was reasonable to ask that question. McConnell denied having made the statement to Robinson at the time or any other time.
Robinson informed McConnell she would be stepped down for the two days with pay and was not required to attend the office. The standing down was clarified as not being a disciplinary matter, it was just a decision had been made to close down the offices. McConnell then said she actually wanted to come into work and Robinson had to tell her on three occasions it would be "time away from the office and time off work with pay". Robinson noted there seemed to be some anxiety on McConnell's part so she decided to keep the call short informing her she would call her on Monday morning to talk about what was needed to be put in place "for this moving forward, with other retreats". McConnell had requested the matter of being "stepped down" be put in writing which Robinson thought was unnecessary as it was not about a disciplinary process. Robinson offered McConnell the rest of the day off with pay and expected she would present for work on the following Monday.
McConnell did not attend work on the Monday with Robinson telephoning her and asking if she was going to work, reiterating what had occurred over the past days was not about a disciplinary issue. She informed McConnell next time she was down in Brisbane she would arrange a face‑to‑face conversation which was the normal process for dealing with "sensitive issues". Robinson was taken to McConnell's correspondence of 29 August 2014 and disputed a number of allegations regarding comments she is alleged to have made in discussions with McConnell which included:
· McConnell breaching contract of employment;
· told McConnell to leave the office immediately (on 27 August 2014); and
· directed McConnell to resign.
Under cross‑examination Robinson accepted that prior to McConnell advising of her inability to attend the Retreat dinner there had been no suggestion of misconduct or performance issues associated with her employment [Transcript p. 2‑39] and she was considered reliable, honest, punctual employee [Transcript p. 2‑42]. As at 14 August 2014 Robinson's geographical areas of responsibilities were:
· Central Queensland;
· Mackay;
· Brisbane (including Coorparoo);
· Brisbane South;
· South Burnet;
· Kingaroy; and
· Rockhampton.
The first time she became aware that McConnell had not attended the previous Retreat was on 26 August 2014 when informed by Galea. The decision to step down McConnell was a direction from Galea [Transcript p. 2‑44].
Robinson was unable to provide information about other employees who did not attend the Retreat even though two were from Rockhampton and Mackay which were areas under her control and she only found out about the Kingaroy staff member being unable to attend at around lunchtime on 28 August 2014 [Transcript pp. 2‑46 to 2‑47]. Robinson was unable to present notes taken following phone conversations with McConnell although there may have been some on the system [Transcript p. 2‑49]. In a staff interview/grievance matter [Exhibit 10] conducted on 2 September 2014 Robinson made the following admission "I also realised that my note taking and recording of these conversations were vague" but maintained she had taken notes but had not been requested to provide any of the notes [Transcript p. 2‑50].
Robinson refused to accept that McConnell had advised her she was unable to attend the dinner and stay overnight due to family care responsibilities but could attend some of the day sessions. She agreed the reason given was her inability to arrange babysitters [Transcript p. 2‑51]. In the telephone conversation of 18 August 2014 there was some discussion around the use of a Family Day Care Centre educator to assist with her children as well as Robinson making the offer of her daughter minding the children. McConnell had never met her daughter and it was agreed it was reasonable for a parent to want to know somebody fairly well prior to leaving their young children in their care. Robinson then denied she had suggested her daughter be used to assist her [Transcript p. 2‑53]. Robinson accepted the proposition that her memory of some of the conversations with McConnell "waxed and waned" [Transcript p. 2‑54]. Robinson maintained that in the conversation of 18 August 2014 McConnell told her she would resign her position if she was forced to attend the Retreat [Transcript p. 2‑55].
On the return to work by Joyce there was a conversation in which Robinson informed her of McConnell's situation and requested Joyce to maybe ask McConnell if she could attend parts of the Retreat but denied McConnell had already suggested this course [Transcript p. 2‑57]. Joyce spoke to her on 25 August 2014 informing that McConnell could not attend the Retreat and Joyce was requested to revisit the topic again with her [Transcript p. 2‑58]. In a conversation with McConnell on 26 August 2014 she denied telling McConnell her attendance at the Retreat was compulsory and she had to make arrangements to attend but had explored whether there were parts of the event she could attend [Transcript p. 2‑59]. McConnell agreed she would raise with her husband about attending the gala dinner [Transcript p. 2‑60].
In a second conversation on 26 August 2014 with McConnell a number of matters said to have been put by Robinson were denied. These included:
· you would know someone who could look after your children;
· surely your children could miss out on their school activities for two days; and
· you're breaching your contract and not following organisational values [Transcript pp. 2‑64 to 2‑65].
McConnell was also informed in this conversation that attending the conference for lessor hours was no longer a viable option and was not going to be of value to her [Transcript p. 2‑66].
Joyce advised her on 27 August 2014 that McConnell had told her she was unable to attend the Retreat at which time Joyce was told to inform McConnell there would be a further conversation later that day which would include Robinson and the other two [Transcript p. 2‑67]. In that telephone conversation which was conducted on speaker mode Robinson mentioned Joyce having been told there would be no attendance at the Retreat and sought to clarify whether McConnell's previous statement about resignation was something they needed to discuss. McConnell denied she had said she was going to resign [Transcript p. 2‑75]. Robinson denied she had said to McConnell "we demand you leave the office immediately you're being stood down and we will wait for your letter of resignation" instead she was told they were going to step her down for two days with pay. McConnell requested the advice be put in writing which Robinson refused because it was not a disciplinary action [Transcript p. 2‑76]. Robinson had access to a smartphone and a computer but did not send an email to McConnell because at that point in time she did not believe it was necessary. Robinson denied sending McConnell home at the end of the conversation (on Galea's instruction) but suggested she go home because she sounded like she was getting a little bit upset and they were happy to support her [Transcript p. 2‑77].
Robinson did not give instructions for Joyce to contact Harris following the conversation with McConnell but Joyce had contacted Harris on her own volition to make sure McConnell was okay. Joyce later that afternoon informed her Harris had told her that McConnell was quite distressed after the earlier telephone conversation. Robinson made no attempt to contact McConnell that afternoon because she trusted Harris to have supported her [Transcript p. 2‑78].
Correspondence (dated 29 August 2014) from McConnell had been forwarded to her on the weekend but it was not until the Monday morning she first saw the document but could not recall whether she was aware of the content prior to ringing McConnell but conceded it was a possibility that she was aware of the letter [Transcript p. 2‑80]. In the conversation with McConnell on 1 September 2014 it was acknowledged she had told her they "wanted to keep you and reconnect with you" [Transcript p. 2‑82]. Robinson denied in this conversation she had tried to deal with the decision of the previous week to step McConnell down without pay [Transcript p. 2‑83]. Robinson denied there was a further request from McConnell for the relevant matters to be put in writing [Transcript p. 2‑84].
Robinson was interviewed following receipt of McConnell's correspondence of 29 August 2014 but had not been required to provide a written response [Transcript p. 2‑86]. Robinson accepted if the allegations made in McConnell's letter were accurate that could have had some serious impact on her career [Transcript p. 2‑87]. Robinson denied the interview document had been prepared in an attempt to cover up what had occurred with McConnell the previous week [Transcript p. 2‑88].
In re‑examination Robinson gave evidence of becoming the regional manager in the area where McConnell worked about eight months prior to the Retreat and did not know much about her having only seen her on five or six times when visiting the Coorparoo office. There had been concerns about some behavioural issues raised about McConnell which were addressed by Galea by way of arranging a conversation with McConnell and the person (Josie Behan) who had made the complaint with them both being asked to undertake some counselling. The matter was not one‑sided as there were also behavioural issues with the other staff member. The final proposal from McConnell regarding her attendance at the Retreat was for her to arrive at 9.30 to 10.00 am with a 2.00 pm departure. On her memory waxing and waning in connection with her telephone conversations with McConnell her evidence was that when somebody is talking about a situation "little bits come back to your memory".
Joyce
Joyce a manager within the Appellant organisation whose responsibilities included being McConnell's line manager, assumed that role in or around March 2013. In the period of McConnell's employment she was aware there had been brief periods where she had worked outside of her normal hours being no more than a couple of hours in total over a two week period. McConnell's normal hours were set at 8.30 am to 3.00 pm in school terms and 8.00 am to 4.00 pm during school holidays which allowed her to have Fridays off. McConnell, following the move of the office from Mt Gravatt to Coorparoo, was shown a level of flexibility to allow her to leave early to pick her children up from school. Joyce prepared a document which identified 11 occasions between 26 February 2013 and 21 June 2014 where McConnell had absences from work due to family circumstances.
In May or June 2014 Joyce raised with McConnell the prospect of increasing her hours of work which she indicated presented some difficulties due to her child care arrangements. The working relationship between McConnell and herself was described as a "very positive relationship" with McConnell being a "very valued employee". The expectation that McConnell would attend organisational Retreats was an expectation applying to all other staff with the 2014 Retreat first raised with staff in February of that year. On 30 May 2014 Galea forwarded an email to all staff containing advice on the upcoming Retreat including information regarding booking forms that required completion by 14 June 2014. There was a discussion with McConnell prior to her completion of the booking form where Joyce was informed that she had her babysitting in order and would be attending the Retreat.
Joyce returned to work on 25 August 2014 at which time McConnell informed her that her babysitting arrangements had fallen through however provided no further information. As McConnell's manager she was aware of the importance of the Retreat for a number of reasons that included:
· team building;
· networking; and
· social activities.
Additionally the organisation had been advised that government funding would cease as at 30 June 2015 and as that was a significant amount of money it was very important that all staff attend the Retreat for that reason. Joyce attended the Retreat on 28 and 29 August 2014 giving evidence that it would have been of value to McConnell in her administrative role.
On 26 August 2014 Joyce prior to going home from work due to feeling unwell had a conversation with Robinson who requested her to have a discussion with McConnell about the Retreat and encouraging her attendance at least through the day if she was unable to attend at night. In that conversation Joyce suggested that McConnell look at her options to see if there was any way she could attend the Retreat through the day but Joyce did not feel it was her place to make suggestions about her child care arrangements. McConnell seemed to be a "little bit put out" but did undertake to see what she could do without going into specifics.
On 27 August 2014 McConnell informed her (by telephone) that she had been unable to make child care arrangements and after Galea and Robinson were told of the situation she made arrangements for McConnell to be part of a group conversation at a time between 1.00 pm and 1.30 pm. Instructions were given to McConnell to go to a "confidential area" in the Coorparoo office when the call came through with no information given to McConnell about the content of the proposed conversation. At the appointed time Joyce rang McConnell and asked one last time if she was going to attend the Retreat and when provided with a negative answer handed the phone to Robinson who put the phone on speaker mode. Robinson was calm and consistent during the course of the conversation with Joyce recalling the following statement being made by Robinson:
"Lisa, as you have been unable to commit to the retreat, and it's an expectation of the organisation, that you will be stood down effective immediately on pay, full pay."
McConnell was informed by Robinson the reason for the stand down was there needed to be a conversation about her commitment to the Retreat as this was the second one she had not attended which showed "you don't have a commitment" to the Retreats. McConnell was told she needed to go away and think about her future with Robinson reiterating she had been stood down, effective immediately. Joyce could not recollect any explanation regarding what was meant by the term "stood down". Joyce confirmed that McConnell had previously explained that due to her husband working long hours it was difficult for him to take time off to support her.
Under cross‑examination Joyce confirmed McConnell was a good and honest employee and in private conversations with her knew her husband worked long hours [Transcript p. 3‑24]. Joyce was clear that on 11 June 2014 McConnell confirmed her child care arrangements were in place to enable her attendance at the Retreat and just prior to taking leave McConnell again informed Joyce of her intention to attend the Retreat [Transcript p. 3‑25]. With regards to flexibility in dealing with family circumstances McConnell requested far more consideration than others to deal with family circumstances [Transcript p. 3‑27]. Joyce acknowledged that as McConnell had the primary care responsibilities it was appropriate for her to seek time off when her children were sick [Transcript p. 3‑28]. Joyce did not believe McConnell had abused the situation and only utilised the flexibility when it was necessary and appropriate [Transcript p. 3‑29 to 3‑29].
On 25 August 2014 Joyce who had returned to work from leave feeling "quite unwell" was told by Robinson about McConnell's inability to attend the Retreat due to child care arrangements falling through and she was directed to speak to McConnell and encourage her to attend the Retreat [Transcript p. 3‑30]. McConnell made an enquiry of Joyce the next day about whether she could take the two days of the Retreat as annual leave or leave without pay which led her to email Robinson which was not responded to nor was an oral response received [Transcript p. 3‑30]. Joyce denied she had told McConnell that she was not allowed to take personal leave or leave without pay [Transcript p. 3‑31]. Joyce did not believe the exchange on the Monday with McConnell warranted a file note and she would only make such a note "if it was considered an important thing that [she] might have to recall later" [Transcript p. 3‑32].
On the Wednesday she was informed by Robinson she had telephoned McConnell informing she had spoken to her on the Tuesday, encouraging her to attend the Retreat [Transcript p. 3‑35]. All of Joyce's conversations with McConnell about the Retreat were said by her to have been undertaken by direction and she was not "managing independently". Robinson was managing the situation with McConnell [Transcript p. 3‑36]. Joyce denied McConnell had told her on 27 August 2014 that she was able to attend the Retreat during work hours but was unable to attend the dinner and stay overnight [Transcript p. 3‑36]. In the group conversation on that day with McConnell she had no idea prior to the conversation McConnell was to be stood down but did recall Robinson had told her that by not attending the Retreat she was not following the organisation's values and mentioned McConnell had offered to resign if she was required to attend the Retreat [Transcript p. 3‑38]. McConnell denied having made the resignation threat stating "No, I did not" [Transcript p. 3‑39]. McConnell was told that she was being stood down, effective immediately and to then leave the office. She was stood down for the period of the Retreat [Transcript p. 3‑39].
Since August 2015 Joyce had discussed the events in question with Robinson on more than one occasion but could not recall the exact number. Joyce continued to maintain that McConnell was told her stand down and was on pay for the period of the Retreat [Transcript p. 3‑41]. Subsequent to the group telephone conversation Joyce questioned Galea in regards to how the process had been managed with Galea telling her later she had not managed the process appropriately and Joyce should have taken more steps to ensure she attended the Retreat [Transcript p. 3‑43]. At the conclusion of the telephone conversation Galea instructed her to call Harris to let him know about McConnell being stood down and to make sure she was alright, ensuring she was okay before she hopped into her car. Harris did not question her about the incident [Transcript p. 3‑44].
On the Monday after the Retreat she opened an email from McConnell [Exhibit 9] and immediately forwarded it to Robinson [Transcript p. 3‑46]. Joyce conceded that McConnell's employment contract and her position description contained no requirement to attend the Retreat [Transcript pp. 3‑47 to 3‑48]. At the Retreat her team sat together except for when group activities occurred. Joyce had no recall whether administration officers or co‑ordinators were placed in groups, solely of their classifications [Transcript p. 3‑48]. Joyce had no awareness regarding four staff members who failed to attend the Retreat [Transcript p. 3‑49].
Harris
Harris, a co‑ordinator at the Appellant organisation, gave evidence of a discussion with McConnell on 18 August 2014 when she came into his office and let him know that she had advised Robinson that she would not be attending the Retreat. Prior to that day he had been under the impression McConnell was attending the event as she had been putting things in place for her children to be looked after and she had asked him for a lift to the Retreat having told him she was looking for a costume for the dinner.
On 27 August 2014 McConnell received a telephone call at about 1.00 pm which prompted her to leave the building to take the call. McConnell returned to the office and told him she had been stood down and told to go home. She was quite upset and told him Robinson had given the direction. He attempted to calm McConnell down who at that time had sat at her desk. At that point he received a telephone call from Joyce who was checking to see if McConnell was okay and he told her he would not let her go home until she was fit to drive. Joyce was supportive of his position and wanted to make sure she was okay. McConnell packed up and voluntarily gave him the office keys before leaving the office with her personal effects.
Under cross‑examination, Harris gave evidence that McConnell had been on the telephone call for around 10 minutes [Transcript p. 3‑55] and when she returned to the office she was crying and visibly upset. When she gave him the office keys he thought her actions were unusual [Transcript p. 3‑56].
Dr Ljubisavljevic
Dr Ljubisavljevic a consultant psychiatrist had prepared a report for WorkCover on 15 May 2015 [Exhibit 16] where he offered the following opinion:
"It is my opinion that in the context of stressors in August 2014 Ms McConnell developed Adjustment disorder with mixed anxiety and depressed mood. I base that opinion on the fact that the symptoms developed in the context of potential loss of employment, feeling of being harassed by her manager and treated unjustly. There were no other stressors that I could identify that were non‑work related at the time. She developed symptoms of anxiety and depression, which caused clinically significant distress and impairment in occupational function. Since then the stress of the events in August 2014 has been settling down however there has been an ongoing WorkCover process, where WorkCover originally rejected the claim, then the decision was set aside by the Regulator but then the employer appealed the decision, and there is a hearing in the Industrial Magistrates Court set up for June 2015. In my opinion this ongoing legal process has been the main perpetuating factor for her ongoing adjustment disorder. Overall, her psychiatric condition has been improving and currently is of mild severity."
Dr Ljubisavljevic participated in a conference on 3 August 2015 with Counsel for the Appellant with a record of the teleconference produced in the Commission in the form of a file note [Exhibit 23]. In the course of the conference Dr Ljubisavljevic was taken to his report in respect of his opinion and diagnosis with the file note recording the following exchange:
· "Mr Healy read the following sentence to me:
'I base that opinion on the fact that the symptoms developed in the context of potential loss of employment, feeling of being harassed by her manager and treated unjustly'.
· Mr Healy then asked me a question to the following effect:
'If the Commission makes factual findings consistent with that description of stressors, are the contents of my report true and correct to the best of my knowledge, information, and belief'. I said yes."
An alternate factual scenario was put to Dr Ljubisavljevic that encompassed changed circumstances from those relied upon by McConnell for Dr Ljubisavljevic's consideration. They were:
"a. On 18 August 2014 Ms McConnell telephoned Ms Tracey Robinson, the Regional Manager with the FDCAQ and told Ms Robinson that she could not attend the retreat scheduled for Thursday and Friday 28 and 29 August 2014;
b. On 25 August 2014, Ms Debbie Joyce, Ms McConnell's immediate line supervisor, spoke to Ms McConnell in person. During that conversation Ms McConnell told Ms Joyce that her baby sitting arrangements had fallen through and that she could not and would not be attending the retreat;
c. On 26 August 2014 Ms McConnell and Ms Robinson spoke on two occasions. During the conversations Ms Robinson explored with Ms McConnell whether any alternative arrangements could be made so that she could attend the retreat. At the end of the first telephone call on that day Ms McConnell agreed to speak to her husband that night to talk about whether any other arrangements could be made to enable her to attend the retreat. Ms McConnell also agreed to telephone her immediate line supervisor, Ms Joyce the next morning to advise her as to the outcome of those discussions;
d. On 27 August 2014 there was a telephone call between Ms McConnell and Ms Joyce and Ms Robinson. Ms McConnell was at work at the Coorparoo office. Ms Joyce and Ms Robinson were at the Mon Como Hotel at the Managers retreat held on that day. During that telephone call Ms McConnell confirmed that she could not attend the retreat. Ms Robinson said that because all FDCAQ offices including Coorparoo, were closed on both 28 and 29 August 2014, the two days of the staff retreat. Ms Robinson told Ms McConnell that she was stepped down with pay and that she could go home then, which was approximately 1.30 pm. Ms Robinson further advised Ms McConnell that someone would speak with her on the following Monday, 1 September 2014, about her inability to attend the retreat and what could be done in future to assist her to attend the biennial retreats;
e. That neither Ms Robinson nor Ms Joyce placed undue pressure upon Ms McConnell to attend the retreat. That Ms Robinson and Ms Joyce were simply trying, as best they could, to help Ms McConnell get to the retreat, at least for the whole of the daytime program or in the alternative a significant and worthwhile part of it;
f. That no Manager employed by the FDCAQ requested or directed Ms McConnell to resign;
g. That Ms Robinson told Ms McConnell in answer to her queries that she would of course, be paid in full for the 2 days on which she was stepped down;
h. That there was never any suggestion that Ms McConnell not attend for work on the following Monday 1 September 2014."
Dr Ljubisavljevic's evidence was that if the alternate factual scenario was accepted by the Commission:
· the 15 May 2015 diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood would remain the same; and
· the cause of the condition would not be the events as described by McConnell with the cause or aetiology of the condition being her perception of events.
On his rudimentary understanding of DSM‑IV‑V and not as an expert his position was that once a person was removed from the stressor or stressors causing the condition that the condition would resolve itself within a six month period with the six month period being more of a maximum than an average period. Dr Ljubisavljevic opined that by the six month mark the part of the condition which was related to the original stressor would have ceased with the dates relevant in this case being 27 August 2014 to 27 February 2015. Other factors that come into play can be ongoing stressors which keep the condition going in certain circumstances.
Under cross‑examination Dr Ljubisavljevic explained the methodology involved in preparing his independent medical examination report being that he conducts a consultation, a mental state examination, forms a view about diagnosis and causation then refers to material provided prior to the consultation [Transcript p. 6‑9]. In terms of his report [Exhibit 16] he agreed that the following could be triggers for McConnell's stressors:
· five phone calls from Robinson within a short period;
· being immediately stood down from work on the Wednesday;
· being told by the organisation they were awaiting her resignation; and
· being given inconsistent information from Robinson between Wednesday and the conversation on the Monday morning [Transcript pp. 6‑9 to 6‑10].
Dr Ljubisavljevic was of the view that the standing down of McConnell on the Wednesday brought about the onset of symptoms of anxiety at that stage and the condition was perpetuated by the further conversation on 1 September 2014. During the consultation Dr Ljubisavljevic found nothing implausible about the history provided by her, without any inconsistencies, and presenting as an honest person. McConnell's demeanour was consistent with the type of symptoms she had described to him [Transcript p. 6‑10].
In undertaking a mental state examination a psychiatrist will often do the following:
· discuss mood, relying on what the patient tells them;
· note the appearance of the patient;
· observe behaviour during the interview;
· assess speech;
· observe affect;
· observe fluctuation in mood; and
· look for any disturbances in perception [Transcript pp. 6‑11 to 6‑12].
Dr Ljubisavljevic observed that there was no indication of McConnell suffering from any form of psychosis, paranoia or of her being delusional during the consultation [Transcript p. 6‑12]. There were no disorders of perception found and Dr Ljubisavljevic confirmed his diagnosis made at the time was McConnell suffering from an adjustment disorder with mixed anxiety and depressed mood that in his view arose from events in the workplace in August 2014. Dr Ljubisavljevic having questioned her about her private life found there were no operative stressors from her private life which he accepted strengthened the causal links between the work‑related events and her condition [Transcript p. 6‑13].
Dr Ljubisavljevic was taken to the alternate factual scenario put by Counsel for the Appellant and conceded he did not know if it was accurate or inaccurate and if the Commission was to find the facts were more in accordance with the history provided by McConnell then his opinions from the original report as to diagnosis and causation would stand [Transcript p. 6‑15]. Dr Ljubisavljevic agreed there was a significant variation between the version put by Counsel for the Appellant and the version contained in letters written contemporaneously by McConnell [Transcript p. 6‑18]. Dr Ljubisavljevic was taken to the group telephone conversation of 27 August 2014 and was asked to accept McConnell was stood down immediately by Robinson and a request for those instructions to be provided in writing was refused and never provided, therefore on that basis his evidence was the injury was work‑related [Transcript p. 6‑20].
In re‑examination Dr Ljubisavljevic gave evidence that a personal interpretation can play a part in what was happening and could lead to misinterpreting what was happening around us.
Regulator
Dr Masel
Dr Masel a general practitioner had been consulted by McConnell as a patient at the Wellers Hill Medical Centre and provided electronic consultation notes relating to McConnell for the period 6 September 2005 to 19 May 2015 [Exhibit 17]. Dr Masel over the last three years regularly treated patients with depression and anxiety being aware of the symptoms and signs of those conditions.
On perusal of the electronic records Dr Masel was unable to find any indication of McConnell having suffered from any form of psychiatric or psychological illness prior to September 2014. Dr Masel had recall of the consultation with McConnell on 1 September 2014 as that was the first time she had met her and recorded the following in the consultation records:
"work related incident ‑
been asked to leave last Wednesday ‑
'no grounds' and no warning ‑ given reasons that she couldn't attend work dinner 2 weeks ago
she had complained about bullying from another employee ‑
she will get legal advice."McConnell's presentation on the day was consistent with her suffering from anxiety and she had the appearance of being agitated. A workers' compensation medical certificate dated 1 September 2014 [Exhibit 18] had the diagnosis of "Work Related Stress/Anxiety". The medical certificate reflected Dr Masel's clinical opinion at the time of diagnosis and she still holds that opinion. On 12 September 2014 a further workers' compensation medical certificate was issued by the doctor identifying an incapacity to work from 12 to 29 September 2014. On 15 December 2014 Dr Masel issued a letter regarding McConnell's medical situation which stated the following:
"Re: Lisa McConnell
With regards to the above patient's work cover claim, I am writing to confirm that Lisa has been suffering from anxiety and depression and I have been treating her for this for the last few months. There appear to be a clear connections between her illness and happenings in the work place around late August, 2014. She has been referred to counselling and, although this seems to be helping, she will require ongoing therapy for the time being."
On 16 February 2015 WorkCover required Dr Masel to respond to a number of questions in which she opined that McConnell was suffering work‑related stressors related to specific events that occurred on or around 27 August 2014 and her employment was the major significant contributing factor to her psychological condition. Dr Masel's response was dated 10 March 2015 and confirmed there were no non‑work‑related stressors.
Under cross‑examination Dr Masel acknowledged as the treating general practitioner she was bound to accept at face value what McConnell told her on 1 September 2014 and that she had no personal patient history to rely on or assist [Transcript p. 5‑11]. Dr Masel accepted under DSM‑IV or V that stress was not a medical diagnosis but gave evidence that anxiety was a diagnosis. At the attendance on 1 September 2014 her medical assessment was that McConnell was suffering from some symptoms of anxiety [Transcript p. 5‑11]. In terms of the content of medical certificates issued by the doctor it was conceded that the wording "been asked to leave last Wednesday" was not being asked to resign [Transcript p. 5‑12]. Dr Masel accepted her clinical notes were a more reliable account of what was discussed with McConnell than her recollection 14 months later but Dr Masel maintained she did remember the first consultation and her presentation [Transcript pp. 5‑12 to 5‑13]. The reference in the clinical notes on 1 September 2014 to a work dinner "two weeks ago" was in hindsight acknowledged as inaccurate but it was referring to the only dinner [Transcript p. 5‑13].
Dr Masel accepted as a general proposition, medical professionals such as herself diagnosed mental illnesses into the following categories:
· mild;
· moderate;
· severe; and
· profound.
The mental health care plans prepared by general practitioners authorises six consultations with the psychologist [Transcript p. 5‑14]. In the case of McConnell she was not prescribed any medication and had just four consultations with the psychologist but according to Dr Masel her condition fluctuated which was not usual with an adjustment disorder [Transcript p. 5‑14]. In reference to her clinical notes of 28 October 2014 Dr Masel conceded McConnell's condition had improved to some extent but she did go on to develop more anxiety due to the WorkCover rejection of her application for compensation [Transcript p. 5‑15].
Dr Masel could not accept a scenario regarding a number of facts broadly put on the basis if they were the facts then perhaps McConnell was unaware of those facts or that something surprised her because her perception was not the same as the facts, however what happened at work caused her anxiety [Transcript p. 5‑15]. If the propositions put were entirely true and McConnell was aware then Dr Masel would have some concerns but Dr Masel did not know if any of what was put was true [Transcript p. 5‑16]. If the Commission was to find in this case the facts put to her in the scenario were reality and it was found McConnell suffered from anxiety then Dr Masel accepted it would be her perception of what occurred rather than the reality [Transcript p. 5‑17].
The correspondence of 15 December 2014 was confirmed as containing a correct description of the facts at that time. Dr Masel conceded it was not accurate to say that six weeks post 14 October 2014 she was treating McConnell for anxiety [Transcript p. 5‑17]. Dr Masel gave evidence she was treating McConnell on 11 and 25 November 2014 for symptoms relating to her becoming teary and treatment for anxiety is not just prescribing medication with sometimes the need to counsel the patient. Anxiety is not like a bacterial infection in that it will not get better without certain medication [Transcript p. 5‑18]. McConnell had declined, as is her right, to take anxiolytics and the like. At 15 December 2014 Dr Masel felt the patient would require more counselling and therapy [Transcript p. 5‑19]. In the period between 15 October 2014 and 15 December 2014 it was accepted that she had not attended a counselling session [Transcript p. 5‑22]. The fact that her clinical notes at times made no mention of counselling does not mean that Dr Masel had not verbally suggested that should happen [Transcript p. 5‑23].
In re‑examination Dr Masel was taken to the provision of workers' compensation medical certificates which Dr Masel considered to be justified in her clinical opinion.
Peter McConnell
Peter McConnell was in August 2014 a building supervisor with some 13 custom‑built homes under construction that he had the responsibility for supervising. He would usually be on the go by 6.00 am and returning home between 6.00 pm and 8.00 pm in the evening which he described as a fairly standard day. He was the husband of McConnell having been married for almost 12 years with the couple having two children aged eight and ten years old for whom McConnell was the person primarily responsible for child care arrangements.
In the week commencing 25 August 2014 he and his wife discussed the work Retreat, how she could be present for the night and how they could possibly make her attendance work with the care of their children and his work arrangements. As a consequence of that discussion he approached Carson his construction manager, giving him a quick debrief about his wife's work circumstances requesting the company to be flexible on his hours to allow him to pick up kids in the afternoon with Carson agreeing to him being able to finish early.
Under cross‑examination Peter McConnell gave evidence that the daytime attendance at the Retreat was not the subject of the issue at the time but it was making herself available in the evening because he would not have been able to do the school drop‑offs in the morning and the sum contribution he could have made was the Thursday afternoon pickup. This required his wife to do the drop‑offs on Friday morning which could not have happened if she had stayed overnight at the Retreat [Transcript p. 6‑26]. The outcome of the discussion with his wife was that his contribution to helping with her attendance at the Retreat was to do one set of pickups on the Thursday afternoon which was to facilitate her attendance at the daytime sessions at the Retreat [Transcript p. 6‑27]. On the times stipulated for the Retreat it was acknowledged that his wife would not have been able to arrive at the morning sessions on time and she would have to effectively miss the last two sessions on the Friday to do the afternoon school pickup [Transcript p. 6‑29]. Peter McConnell confirmed that the only definite arrangement he made to help his wife would have allowed her to attend some part of the Retreat [Transcript p. 6‑29].
In re‑examination Peter McConnell gave evidence of a general discussion with Carson prior to 26 August 2014 about the Retreat where he was told Carson would improvise so that he could have time off so she could attend the daytime sessions.
McConnell
McConnell an administrator with the Appellant organisation commenced employment some four years previous. McConnell was married with two children aged eight and ten years old and it has always been the case she is the primary caregiver spending most of the time looking after the children and by agreement with her husband she took on a job with less income than her previous jobs so she could do school hours. Her hours of work were 8.30 am to 3.00 pm over five days in school time and from 8.00 am to 4.00 pm over four days in school holidays. McConnell had the responsibility for ensuring the children got to school.
McConnell enjoyed working for the organisation and prior to August 2014 had no intention of leaving. She first became aware of the Retreat a few months prior to the event and it was her definite intention to attend the Retreat. She had missed the previous event due to her son being ill. Steps had been taken for her husband to drop‑off and pick up the children to allow her to attend the Retreat and she had obtained her costume for the gala dinner some six weeks prior to the event.
A week before the Retreat it became obvious there was a problem with the overnight stay which caused her to make telephone contact with Robinson due to her manager (Joyce) being on leave and advised there were some difficulties for the afternoon and evening part of the Retreat as a result of her husband's busy work schedule. The difficulties related to having someone care for the children in the afternoon and evening and getting the children to school the next day. She recalled Robinson made a comment of having been in the same situation as a mum and enquired whether any of their educators could look after her children and when that was rejected by McConnell an offer was made by Robinson for her daughter to come and look after the children. As McConnell had not previously met Robinson's daughter she would not consider having her look after her children. The position at the end of the conversation was she would attend during the day but the evening was a problem which Robinson was fine with. McConnell could get there at the start but may have had to leave a "little bit" earlier.
McConnell had a discussion on the Tuesday before the Retreat with Joyce at the Coorparoo office about her not attending the Retreat and about not being able to take two days annual leave which confused her because she was actually attending during the day and it was only the evening she was missing. McConnell was unable to clarify the situation with Joyce. On the Tuesday she received two calls from Robinson with the first conversation being about McConnell making arrangements to attend the evening as it was a compulsory event and ended with McConnell saying she would speak to her husband about what arrangements she could make. Robinson was adamant she attend the function which made her feel quite distressed because it was only two days before the event and she had no one to care for her children.
In the second telephone call Robinson queried whether she had spoken to her husband and reminded her again that it was a compulsory event. McConnell asked the question about what would happen if she did not attend the Retreat and was told she would be breaching organisational values and it was compulsory to attend. McConnell requested Robinson put her position in writing which was refused. McConnell felt more on edge thinking she may have to leave her children with strangers to attend the dinner and stay overnight as opposed to being home with her children. That evening she discussed the situation with her husband to let him know she felt pressure coming from Robinson after which he informed her he would talk to his boss the next day.
McConnell attended for work on Wednesday at her usual time and being aware Joyce was at a managers meeting telephoned her and was advised Robinson would be phoning her back at 1.00 pm. The purpose of phoning Joyce was to let her know she could not attend the dinner or stay overnight. In the conversation with Joyce there was no mention about the upcoming call with Robinson regarding content. McConnell had not previously been suspended, stood down or stepped down during her employment with the organisation nor had such a procedure been discussed.
McConnell subsequently received the second call at around 1.00 pm and in line with the previous instruction from Joyce went to an area where she could be on her own. Joyce asked if she was able to attend the Retreat and then Robinson spoke to her through speakerphone. McConnell remembered telling them she could not stay overnight at which time Robinson informed her she was breaching her contract, not following the organisational values and then told to submit a letter of resignation. Additionally she was told she was being stood down and told to leave the office immediately. McConnell asked if she could have the above in writing which Robinson refused.
McConnell immediately after the telephone conversation concluded felt very upset at being told she was being stood down and knowing there was no payment for those two days. She want back into the office where she informed Harris that she had to leave the office. Harris then took a call and came back showing concerns for McConnell who was crying at the time. Upon handing him the office keys he walked her to the door.
McConnell continued to feel upset and tearful on her arrival home, feeling pretty much the same in the days immediately following. She made no attempt to contact or communicate with anyone at work and in that time sought advice from Legal Aid that resulted in her emailing her employer on the Friday, sent to Galea but addressed to Robinson. The correspondence was prepared by Legal Aid with McConnell's evidence being that the content was true and correct.
On Monday (1 September 2014) she received a telephone call from Robinson as she was taking her children to school but did not take the call as she was driving, choosing instead to call her back when she got home. She telephoned Robinson who told her she was a valued staff member and they wanted to reconnect with her however there would be no payment for the two days because she was not at work. McConnell told her that she would call her back that day but did not. In the course of the day there were two or three unanswered calls from Robinson.
On the Monday she attend Dr Masel where upon describing the symptoms she had been experiencing over the past four days was given some time off work with the medical certificate delivered to the Murarrie office by her father. A document prepared by McConnell was forwarded to McNellie on 2 September 2014 which dealt with the events that had occurred from 18 August 2014 until 2 September 2014 and amongst other things included:
· comprehensive details of telephone conversations between Robinson and herself on 18, 26, 27 August 2014 and 1 September 2014;
· allegations of bullying against Robinson;
· Robinson requesting her resignation;
· unblemished work history regarding conduct and performance;
· failure of Robinson to provide instructions in writing regarding her being stood down on 27 August 2014;
· information relating to a consultation with her general practitioner; and
· seeking advice regarding her suspension in respect of payment and length of suspension.
McConnell provided a copy of notes [Exhibit 25] taken by her at the time of the telephone conversation with Robinson on 1 September 2014 in which she recorded comments made by Robinson that included:
· do not want to lose you;
· value you as a staff member;
· do not need to put this in writing;
· step down only last week;
· do not get paid for two days;
· needs to be committed to the organisation; and
· need to look at Retreat next year ‑ compulsory ‑ clear with you.
Under cross‑examination McConnell gave evidence of her hours of work with her current employer as having been specifically designed to allow her to attend to school drop‑off and pick up as well as allowing her to have Friday off during the school holidays [Transcript p. 6‑57]. The employer assisted with balancing her work and family commitments and when she was required to change offices allowed her to sometimes finish early to facilitate pickups. McConnell described her working relationship with Joyce as being good with flexibility to allow her to attend a range of school activities [Transcript p. 6‑58]. Communication in the workplace was good and respectful and she was paid above the award [Transcript p. 6‑59]. McConnell accepted the organisation was a family friendly place and she was able to work with her managers around family issues [Transcript p. 6‑60].
McConnell became aware of the 2014 Retreat in February that year that and knew it was an expectation that all employees would attend. The input of staff at the Retreat was valued by the organisation and it was hoped staff would benefit from their attendance [Transcript p. 6‑61]. As a frontline employee McConnell accepted the Retreat offered a good opportunity for her and other receptionists that worked within the organisation to discuss issues relating to the business [Transcript p. 6‑62]. McConnell acknowledged the content of her position description applied to her employment which included undertaking at times other duties that were relevant to the position [Transcript p. 6‑64].
The hours identified in the Retreat program were not in excess of her normal hours of work and in fact were an hour less [Transcript p. 6‑66]. McConnell's offer to attend the Retreat was on the basis of being there in the times between dropping her children off and picking them up [Transcript p. 6‑66]. She accepted advice was received in February 2014 and 30 May 2014 about the Retreat and that she had ample time to make child care and other personal arrangements [Transcript p. 6‑67]. Joyce had been informed of her intentions to attend the Retreat and at one point she had asked Harris to give her a lift to the venue [Transcript p. 6‑67].
McConnell conceded at the relevant time Peter McConnell worked long hours and had never undertaken the drop‑off or pickup of their children but she did have expectations he would have been able to do that on the two days of the Retreat [Transcript p. 7‑10]. She denied there were never any definite arrangements in place for her husband to look after the drop‑off and pickup on the two days further denying she had told Robinson her parents had dropped out of an arrangement to babysit on those days [Transcript p. 7‑10]. McConnell accepted her husband had never plainly told her that Carson had approved his time off to drop‑off and pick up the children on 28 and 29 August 2014 [Transcript p. 7‑12]. The only time a request to put anything in writing was made to Robinson was during the group conversation on 27 August 2014 [Transcript p. 7‑12]. McConnell denied thinking that what was happening in that conversation might not have been what was happening in reality or that she misunderstood what was said by Robinson and Joyce due to being anxious and distressed [Transcript p. 7‑13]. Prior to August 2014 she had never had any sort of mental illness or condition which made the situation in August/September 2014 a major event as far as she was concerned [Transcript p. 7‑13].
McConnell was taken to correspondence of 29 August 2014 [Exhibit 9] under her signature that stated "Please advise by 9.00 am Monday 1 September 2014 the basis that I have been sent home and confirm that I am being paid for the days you have directed me not to attend work". She refused to accept that she was being sent home because all other offices that were closing, giving evidence she was stood down and told to leave the office immediately [Transcript p. 7‑14]. McConnell confirmed that Robinson had asked her on 18 August 2014 to look at other options that included Robinson's daughter to cover her babysitting arrangements to allow for her attendance at the Retreat [Transcript p. 7‑15]. Robinson was keen to help her get to the Retreat and for her to stay overnight. McConnell denied saying she would have to resign if she was made to come to the Retreat [Transcript p. 7‑16] and it was her intention to attend the daytime sessions after dropping her children off and leave in time to pick them up [Transcript p. 7‑17].
McConnell denied Robinson in the second telephone call of 26 August 2014 told her "There's no value for you in that, no value for Family Day Care in that, and it would cause stress to you" in response to a conversation between Robinson and Galea about her offer to attend the day sessions [Transcript p. 7‑19]. McConnell volunteered to talk to her husband on the night of 26 August 2014 about the child care situation [Transcript p. 7‑20]. The next morning she telephoned Joyce and advised she could not attend the overnight stay [Transcript p. 7‑21]. At no time in any conversation with Robinson was it said "Look, the decision is that you'll be stepped down from work because the office is closed and you'll be able to go home" nor did Robinson on 27 August 2014 tell her she was being stepped down with pay [Transcript p. 7‑22]. McConnell acknowledged she was paid for the two days of the Retreat [Transcript p. 7‑22]. McConnell denied that Robinson had told her at the end of the conversation on 27 August 2014 "Look, you should feel free to go home early and you can leave the office if you wish" [Transcript p. 7‑23]. Further it was her evidence that she had not misunderstood or misperceived what was being said to her [Transcript p. 7‑24].
In the course of the cross‑examination a significant number of propositions were put to McConnell regarding her telephone conversations with Robinson and other events which McConnell refuted as being "incorrect".
In re‑examination it was McConnell's evidence that the options suggested by Robinson for alternate child care arrangements were for varying reasons unsatisfactory. The option of her own parents was not available due to them being away at the time. In the telephone conversation with Robinson on 27 August 2014 Robinson had said "Yes. You did, Lisa. You did say you were going to resign" which McConnell denied saying. In that conversation she described Robinson's manner as being very abrupt and demanding. Prior to being paid the two days of the Retreat she had asked Robinson about that payment.
Carson
Carson in mid‑2014 was employed as the construction manager at Kalka Constructions (the employer of Peter McConnell) having responsibilities for all of the firm's supervisors one of which was Peter McConnell. On 27 August 2014 he had a discussion with Peter McConnell in relation to some possible time off so that his wife could attend a work Retreat. As a manager he was very lenient with employees needing time off and at the time agreed to the request. Peter McConnell had approached him "roughly" a week or two prior to 27 August 2014 about having time off and was given the same answer.
Under cross‑examination Carson confirmed he had no problem with Peter McConnell having some time off due to his wife attending a Retreat [Transcript p. 7‑35]. Carson was appraised of a statutory declaration in a FairWork proceeding that he had previously completed and had not seen fit to say anything about his previous discussions with Peter McConnell about having time off. Carson did not accept an assertion there had been no discussions as such [Transcript p. 7‑36]. Carson's evidence was that whilst he could not recall the specifics of the discussion with Peter McConnell he had approved time off as needed to attend to family matters [Transcript p. 7‑36]. Carson did finally accept he had approved Peter McConnell "knocking off" early on 28 August 2014 to pick up his children [Transcript p. 7‑37].
Vallianos
Vallianos, a clinical psychologist since 1990 specialises in areas of:
· anxiety;
· depression;
· trauma;
· stress‑related disorders; and
· grief/loss.
Vallianos had cause to treat McConnell and on request provided a Report to the Regulator (dated 10 June 2015). The Report [Exhibit 26] content was true and correct reflecting clinical opinions she still holds.
[101]In terms of preparing the Report the following documentation was provided for her perusal:
· Chronology of events ‑ by McConnell;
· correspondence (dated 2 September 2014) from McConnell to McNellie;
· correspondence (dated 3 September 2014) from McConnell to Joyce; and
· "Reasons for Decision" from the Regulator to McConnell.
[102]Specific questions addressed by Vallianos in the Report included:
· First consultation ‑ 11 September 2014.
· Diagnosis ‑ Adjustment Disorder with Anxiety;
· Factors identified by McConnell as causative of her injury:
"The specific factors are detailed in the above section titled History of Events. In summary, however, Mrs McConnell indicated that due to a change in her family commitments, i.e. unable to secure care for her children, she could not attend the Gala Dinner and overnight stay at the Work Retreat. She was initially told this was 'fine' but then received a number of phone calls saying that the retreat was 'compulsory' and 'surely' she could find someone to look after her children. When Mrs McConnell said she could not she was then asked to 'stand down', 'leave work immediately' and 'we await your resignation'. Several days later she was contacted and told that she was 'a valued employee' and 'we want to reconnect with you' and 'we don't want to lose you'. Between the period of being stood down and then phoned and told she was valued Mrs McConnell experienced shock, anxiety and uncertainty. These feelings persisted after the phone call telling her she was a 'valued employee' she had lost trust in the organisation."
· Was any injury an aggravation of a pre‑existing condition?
"Mrs McConnell denied any pre‑existing psychiatric history and clinical interview did not indicate any history. Mrs McConnell mentioned the difficulty of working with a colleague who she described as 'verbally aggressive' and when this was brought to management's attention the issue was resolved. No psychological condition was noted to occur at that time, nor at any time in her past. Therefore it does not appear that her psychological injury is an aggravation of a pre‑existing condition."
· Non‑work‑related factors ‑ none identified; and
· Was employment the major significant contributing factor to the injury? ‑ Yes.
[103]Vallianos in summary found McConnell had met the criteria for an Adjustment Disorder with Anxiety and in May 2015 it appeared she still had an Adjustment Disorder but with Mixed Anxiety.
On 14 August 2015 Vallianos participated in a telephone conference with Counsel for the Regulator from which a file note [Exhibit 27] was prepared and signed by her on 27 November 2015. The file note recorded that she had been provided with a copy of the file note of the conference with Dr Ljubisavljevic [Exhibit 23] which contained the alternate factual scenario put to him and his opinion offered to that scenario.
[105]Dr Vallianos disagreed with the conclusion reached by Dr Ljubisavljevic identifying a number of reasons that included:
· whether the threat of losing her job was real or perceived the cause of McConnell's condition was related to her communications with Robinson and Joyce and the sequence of events leading up to this event;
· the diagnosis remains the same and directly relates to the workplace;
· based on information available to her there was no indication of any other events or personal stressors that gave rise to the injury;
· there was no motivation to be dismissed and no reason for her to want to misperceive the workplace events; and
· being stood down and asked to leave immediately led to McConnell's anxiety.
[106]More particular in terms of the alternate factual scenario it was Vallianos' position that her opinion remained that McConnell's injury/condition arose as a direct result of the process and content of the communication delivered by management to her and therefore was work‑related with her employment being the major significant factor to the injury.
[107]In relation to the observations of Dr Ljubisavljevic regarding the six month period for an adjustment disorder once a person was removed from the stressor or stressors that caused the condition she made the following observation:
· "The diagnostic criteria for an adjustment disorder include E which relevantly states:
·'Once the stressor (or its consequences) has terminated, the symptoms do not persist for more than an additional six months';
· In my view the consequences of the stressors have not ceased because the employer has chosen to challenge the acceptance of the claim, there has been no resolution and this has resulted in Ms McConnell being required to consistently revisit the work events and their impact upon her;
· Other factors have perpetuated the condition, but the consequences of those stressors have not ceased for Ms McConnell in my opinion."
Under cross‑examination Vallianos accepted that anxiety could push a person to assume or make assumptions about what another person was saying or doing and in this case with the phone calls she may have wondered what her workplace was going to do and whilst it was possible anxiety could distort the reality it was also the case that anxiety could make a person more vigilant [Transcript p. 7‑42]. Vallianos accepted a person's perceptions may be distorted if they were suffering some symptoms of anxiety and stress but unlikely beyond being curious and worrying [Transcript p. 7‑42]. Vallianos went on to concede that distress could have affected McConnell's perception of the way she was being dealt with and treated in the workplace [Transcript p. 7‑43]. On the use of the words "stood down" that would be a different scenario [Transcript p. 7‑44].
Submissions
Appellant
[109]The Appellant provided substantial written submissions (51 pages) and for reasons of economy are reproduced in a limited form although they have been considered in their entirety.
Introduction
[110]The employer had accorded McConnell every flexibility, understanding and emolument within their power and made only one request of her being that she attend the biennial two‑day Retreat. Out of 72 staff she was the only one without a wholly legitimate reason for not attending. The employer in having to deal with the situation required her to remain at home on full pay and she was not asked to perform any work for the two days of the Retreat.
[111]The injury suffered by her was not an injury within the meaning of the Act by virtue of being withdrawn from that definition because it arose out of, or in the course of, reasonable management action reasonably taken by her employer and out of, and in the course of, her expectations or perception of reasonable management action being taken against her by the employer.
On 25 August 2014 according to Robinson she telephoned Joyce who returned from leave that day to inform her of the previous conversation with McConnell requesting Joyce's assistance in clarifying the current position. Joyce offered a different version being that McConnell informed her on 25 August 2014 her babysitting arrangements had fallen through providing no further information whilst McConnell's recall was that she spoke to Joyce about not being able to attend the Retreat in the evening but would be there for the day sessions.
On 26 August 2014 Joyce's evidence was upon feeling unwell had decided to go home however prior to leaving took a telephone call from Robinson requesting she have a discussion with McConnell and encourage her to attend the day sessions even if she was unable to attend the evening function. Joyce recalled the conversation with McConnell where she suggested she look at her options to see if she could attend the Retreat but did not feel it was her place to make suggestions about McConnell's child care arrangements. Joyce formed the view McConnell seemed a "little bit put out" at the time. McConnell's version was that the conversation with Joyce did little to clarify the situation.
It would appear the "tempo" was lifted on 26 August 2014 in that it is uncontested Robinson made two telephone calls to McConnell regarding her participation at the Retreat and the high expectations of the organisation that she would attend. McConnell recalls that Robinson was adamant she attend the compulsory event and to fail to attend would be a breach of organisational values. McConnell on 29 August 2014 in correspondence addressed to Robinson [Exhibit 9] made mention of telephone conversations (which included Robinson) on 26 and 27 August 2014 stating:
"The outcome of these discussions was that I was informed that I was breaching my contract and not following organisation values. It was further suggested that I had offered to resign which I had not."
In the period between 18 August 2014 and 1 September 2014 Robinson in evidence confirmed that she had made five telephone calls to McConnell.
The management action embarked upon by the employer in the period from 18 August 2014 to 26 August 2014 (inclusive) was on the evidence reasonably taken and whilst the exchanges between Robinson and McConnell had not resolved the issue of McConnell's non‑attendance at the Retreat the position of both parties was clearly defined in that:
· the employer required McConnell's attendance at the Retreat and failure to not attend was viewed negatively by them; and
· McConnell had no child care arrangements in place to allow for her attendance at the Retreat.
Notwithstanding that the manner in which Robinson raised concerns about McConnell's inability to attend the Retreat may have at times been confronting and less than perfect the circumstances faced by her in not being able to resolve the Retreat issues with McConnell would have undoubtedly led to a level of frustration.
27 August 2014
The consideration of the events of 27 August 2014 is significant as the decompensation of McConnell is asserted to have occurred on that date according to the workers' compensation medical certificate [Exhibit 18] issued on 1 September 2014 where Dr Masel identified the "worker stated date of injury" as 27 August 2014 and the diagnosis of her condition as being "Work‑Related Stress/Anxiety".
Dr Masel, in evidence before the proceedings, confirmed she still held the opinion that the diagnosis made by her was correct at the time and the Commission was taken to her consultation notes from the 1 September 2014 visit of McConnell where she recorded the following:
"work related incident ‑
been asked to leave last Wednesday ‑
'no grounds' and no warning ‑ given reasons that she couldn't attend work dinner 2 weeks ago
she had complained about bullying from another employee ‑she will get legal advice."
The evidence of the Appellant indicates there was direct involvement of three members of the managerial team in discussions about McConnell held at the Retreat location on 27 August 2014 with witness evidence being from Robinson, Joyce with the third participant (Galea) the more senior of the three not giving evidence as a consequence of a medical condition which had rendered her "unfit for being involved in any court or legal process" according to a medical certificate dated 11 June 2015. The medical certificate went on the further state:
"The impact of legal proceeding which do not directly affect Janine [Galea] has resulted in significant emotional distress on top of her background health issues."
The medical certificate content was not the subject of challenge and is accepted by the Commission as a satisfactory explanation for Galea not being called to give evidence in the proceedings with no adverse inference made.
[215]Robinson claimed that in the course of deliberations Galea was adamant about there being a discussion with McConnell to inform her she was being "stepped down" from duty for the two days of the Retreat if she failed to attend but there had been no mention regarding payment or otherwise for those days.
Joyce had been given the responsibility to contact McConnell and arrange for her to be part of a group conversation at a time between 1.00 and 1.30 pm on 27 August 2014. The instruction given to McConnell was to go to a "confidential area" in the Coorparoo office to take the call but no information was provided regarding the content of the proposed call and Joyce herself was unaware of the imminent stand down of McConnell at that time.
[217]McConnell confirmed the evidence of Joyce regarding no pre‑disclosure of the content of the group conversation and of complying with the request to attend to the call in an area where she could be on her own.
[218]Robinson's recall of the group conversation was that she sensed some anxiety from McConnell when she had questioned her about her non‑attendance at the Retreat and discussion about the threat by McConnell to resign if she was forced to attend the Retreat. McConnell was then informed by her that she would be stepped down for two days with pay which was reiterated on three occasions, being told it would be "time away from the office and time off work with pay". McConnell was told to expect a call from Robinson on the following Monday to discuss "moving, forward with other retreats". McConnell had requested the "stepped down" process be put in writing which Robinson thought was unnecessary as it was not a disciplinary matter.
[219]Joyce in evidence recalled the statement made to McConnell from Robinson in the call as being:
"Lisa, as you have been unable to commit to the retreat, and it's an expectation of the organisation, that you will be stood down effective immediately on pay, full pay."
Robinson had gone on to inform McConnell that as this was the second Retreat she had not attended it showed she had no commitment and re‑affirmed the stand down was effective immediately.
Joyce's involvement in the McConnell matter prior to 27 August 2014 had been undertaken by direction as Robinson had been managing the situation and Joyce was not managing independently.
[221]McConnell recalled informing the group she was unable to stay overnight at the Retreat which resulted in Robinson making accusations she had breached her contract, not followed organisational rules and told to submit a letter of resignation. McConnell was then informed she was being stood down and told to leave the office immediately. A request to have the directions in writing was rejected by Robinson. McConnell became very upset at being stood down, not knowing if she would be paid for the two days and upon re‑entering the office she informed Harris she had to leave the office.
[222]Harris who was in the Coorparoo office at the time McConnell took the group call observed after she returned to the building she was quite upset and recalled her telling him she had been stood down and told to go home. Joyce had called him at this time to see if McConnell was okay.
On consideration of the evidence before the proceeding regarding the conduct of the group telephone conference of 27 August 2014 I am satisfied that:
· whilst McConnell was not provided with any warning of the potential to be stood down as an outcome of the meeting it is open to find that she must have known the discussion would centre around her inability to attend the Retreat;
· McConnell in the course of the conference was informed by Robinson she was to be stood down immediately and for the two days of the Retreat as a consequence of her being unable to attend that event. The argument as to whether the term relied upon by Robinson was "stepped down" or "stood down" is simply pedantic in my view to the extent either term had the effect of removing her from the workplace;
· the issue of McConnell's registration was again raised by Robinson;
· whether McConnell was informed on 27 August 2014 that the suspension was to be with pay or otherwise is the subject of some conjecture between the parties and remained a point of significant difference at the time of hearing. McConnell in correspondence to the Appellant (dated 29 August 2014 and 2 September 2014) was certainly unsure about that aspect and sought clarification. However it is a matter of fact that McConnell was paid for the period of suspension and whether that outcome was due to the previously mentioned correspondence would be purely speculative in the absence of any such evidence before the Commission;
· Robinson's participation was less conciliatory than what may be reasonably expected from a supervisor who quite early in the conference had sensed McConnell was suffering a level of anxiety. Further the fact that on at least three occasions she reiterated to McConnell she had been stepped down is a good example of her questionable conduct;
· McConnell was obviously upset at the conclusion of the conference as witnessed by Harris first hand and the telephone enquiry made of Harris by Joyce immediately following the conference to see if she was okay; and
· McConnell was not informed the meeting was part of a disciplinary process.
The Appellant at all times maintained their actions in stepping down McConnell for the two days (28 and 29 August 2014) of the Retreat had been reasonable management action due to her unwillingness to attend the Retreat and the office at which she worked was to be closed for the duration of the Retreat. The decision was said not to be of a disciplinary nature therefore the process that would be relied upon in undertaking a disciplinary action was not required to be followed in these circumstances.
[225]The Commission accepts that if the actions of the Appellant were based around the administration of the business and not disciplinary as claimed by them the management action would have been in the circumstances the proper course of action to have embarked upon. That position is supported by the matter of Lewis v Heffer[23] where the following was stated:
[23] Lewis v Heffer [1978] 1 WLR 1061
"13. Natural justice
But then comes the point: are the N.E.C to observe the rules of natural justice? In John v. Rees [1970] Ch. 345, Megarry J. held that they were. He said at p. 397:
'suspension is merely expulsion pro tanto. Each is penal, and each deprives the member concerned of the enjoyment of his rights of membership or office. Accordingly, in my judgement the rules of natural justice prima facie apply to any such process of suspension in the same way that they apply to expulsion.'
Those words apply, no doubt, to suspensions which are inflicted by way of punishment: as for instance when a member of the Bar is suspended from practice for six months, or when a solicitor is suspended from practice. But they do not apply to suspensions which are made, as a holding operation, pending inquiries. Very often irregularities are disclosed in a government department or in a business house: and a man may be suspended on full pay pending inquiries. Suspicion may rest on him: and so he is suspended until he is cleared of it. No one, so far as I know, has ever questioned such a suspension on the ground that it could not be done unless he is given notice of the charge and an opportunity of defending himself and so forth. The suspension in such a case is merely done by way of good administration. A situation has arisen in which something must be done at once. The work of the department or the office is being affected by rumours and suspicions. The others will not trust the man. In order to get back to proper work, the man is suspended. At that stage the rules of natural justice do not apply: see Furnell v. Whangarei Schools Board [1973] A.C. 660.
So in this case the rules of natural justice do not apply. The suspensions are not invalid on that account." [emphasis added]
[226]In this particular case to determine if the position advanced by the Appellant was of a business decision being made rather than a disciplinary action in the suspension of McConnell then the following needs to be considered:
· Why was it necessary for Galea, Robinson and Joyce to have participated in the group conference call on 27 August 2014 if the purpose was only to inform McConnell she was to simply be given the two days of the Retreat off?
· Why was it necessary to keep McConnell's direct line manager (Joyce) from having carriage of the matter upon her return from leave?
· Why was McConnell directed by Joyce prior to the telephone call to take the call in a "confidential area"?
· Why was the suspension to take effect immediately and not just the two days of the Retreat?
· Why did Robinson refuse the perfectly reasonable request from McConnell to put the details regarding her stand down in writing?
· Why was the issue of McConnell's resignation raised by Robinson in the course of the meeting?
Additionally there was the failure to respond to McConnell's correspondence of 29 August 2014 and 1 September 2014 in which she had raised a number of relevant matters regarding her employment situation at that time. There was evidence before the proceeding in the form of a Staff Interview ‑ Grievance matter [Exhibit 10] where Galea had interviewed Robinson on 2 September 2014 in respect of a grievance matter reported by McConnell about the conduct of Robinson in dealing with her inability to attend the Retreat. The involvement of Galea in conducting the interview with Robinson clearly has implications of conflict of interest in that apart from her participation in the group conference call of 27 August 2014 she had according to Robinson's evidence in the proceedings been adamant McConnell be stood down during that conference. Certainly the involvement of Galea in the grievance interview was at best poor corporate governance and at worst an attempt to shield Robinson's conduct, the subject of complaint.
Upon examination of all evidence as it relates to the telephone conversation involving McConnell, Galea, Robinson and Joyce on 27 August 2014 I am satisfied there is no doubt that the manner in which the conference was scheduled, then conducted and the ultimate stand down of McConnell taking effect immediately was nothing less than a disciplinary action against her as a consequence of her non‑attendance at the upcoming Retreat and cannot be characterised in any other light. The attempt by the Appellant to present their actions as a non‑disciplinary event is not supported by factual evidence therefore leaving their management action open to be assessed against the criteria that would reasonably be expected to apply in matters of discipline.
[229]If the conduct of an employee in the eye of the employer is of a type to warrant being dealt with as a disciplinary action, there are reasonable expectations upon the employer to conduct a process that provides natural justice to all involved. In this case McConnell was an employee of three plus years whose conduct and performance had been beyond reproach without any negative issues having ever been raised by the employer with regards to her employment.
[230]As mentioned earlier it has been found that McConnell had been disingenuous towards her employer in giving assurances she had child care arrangements in place to attend the Retreat and when she was found "wanting" in this area the initial involvement of the employer was based around what measures could be taken to ensure her attendance. When those efforts went "west" in the period between 18 August 2014 and 26 August 2014 the employer decided that prior to the group telephone conference on 27 August 2014 McConnell would be stood down for the two days of the Retreat as a result of her non‑attendance being unsatisfactory to their requirements. The decision to stand McConnell down is not of itself necessarily a problem for the employer but it is the manner in which they undertook that task that brings into question whether it was reasonable management action taken in a reasonable way.
[231]Prior to the commencement of the telephone conference McConnell had been directed by management to participate in that conference in a part of the office that was described as a "confidential area" and given no warning of her imminent stand down. In these circumstances McConnell entered the conference "cold" and was denied the opportunity of seeking any advice around the stand down or to have a support person present to assist her at this point in time. The issue of her resignation was again raised by Robinson and in correspondence forwarded to McNellie on 2 September 2014 [Exhibit 24], around the events of 27 August 2014, McConnell gave her version of what had transpired:
"Just before 1.00 pm Wednesday 27 August 2014 I had a telephone call from Debbie Joyce and Tracey Robinson. The outcome of those discussions was that Tracey informed me that I was breaching my contract and that I was not following the organisations value's. Tracey also claimed that I had offered to resign (which I objected to, because I had not). In fact it makes no sense whatsoever for anyone to resign in the circumstances I have described and I have very grave concerns about having such a proposition attributed to me in this way. That behaviour is patently unreasonable and it clearly amounts to bullying and (for the record), I reject both the contention made and the bullying behaviour at the heart of it.
Tracey then told me that I had to leave the office immediately and I had been 'stood down'. Again, Tracey Robinson told me that she expected me to submit a letter of resignation. I then repeated: 'I did not say I was going to resign.', and Tracey contradicted me, saying 'Yes you did Lisa'. Finally, Tracey said "We demand you to leave the office immediately. You are being stood‑down and we will wait for your letter of resignation. Tracey Robinson then said, '…Do you understand what we are asking you to do Lisa'. At that point, I asked if these instructions could be put in writing as I did not want to write a letter of resignation. She responded with 'We are busy for the rest of the week, and I need a written letter of resignation from you' (or words to that effect)."
The content of the 2 September 2014 correspondence was not disturbed in the course of the cross‑examination of McConnell to the extent it would be unsafe to accept her contemporaneous version of what had occurred in the telephone conversation of 27 August 2014 and as such her evidence given orally in the proceedings plus the content of her correspondence of 29 August 2014 [Exhibit 9] is preferred by the Commission to that of the Appellant, in particular Robinson as to what occurred in the course of the abovementioned telephone conference. The management action engaged in by the Appellant in and around the telephone conference of 27 August 2014 was not reasonable management action taken in a reasonable way in connection with McConnell's employment and accordingly does not enliven the provisions of s 32(5)(a) that would enable the exclusion of her psychiatric or psychological disorder from being compensatable.
Note: The Commission having previously formed the view that McConnell had been disingenuous in the giving of an assurance to her employer regarding the ability to attend the Retreat and then preferring her evidence in terms of the 27 August 2014 group telephone conference should not be seen as having the appearance of being contradictory because in the case of the preferred evidence there was corroborative evidence regarding the conference from Joyce and the evidence of Harris about his discussion with McConnell in the immediate aftermath of the call was supportive of her evidence of being stood down and upset as a result of that telephone call.
Whether the operations of s 32(5)(b) of the Act excludes the personal injury suffered by McConnell due to her expectation or perception of reasonable management action taken against her
Having found McConnell has an entitlement to compensation which is not excluded by the operation of s 32(5)(a) it is not necessary to address the provisions of s 32(5)(b).
Findings
[234]On consideration of the evidence, material, concessions and submissions before the proceedings and subject upon the requisite standard of proof the following findings are made:
· McConnell was at all relevant times a worker within the meaning of s 11 of the Act;
· McConnell sustained a personal injury in the form of a psychiatric/psychological disorder;
· McConnell's personal injury arose out of, or in the course of her employment and the employment was the major significant contributing factor in respect of that injury;
· McConnell's personal injury is not excluded from being compensatable by virtue of the operation of s 32(5)(a) of the Act.
Orders
[235]The following Orders are made:
· the Appeal is dismissed;
· the decision of the Workers' Compensation Regulator of 2 April 2015 to set aside the decision of WorkCover Queensland to reject the application for compensation and substitute a new decision to accept the application in accordance with s 32 of the Act is upheld. The claim is one for acceptance; and
· the Appellant is to meet the Regulator's costs of and incidental to this Appeal. Should the parties not reach agreement with regards to costs a further application can be made to the Commission.
[236] I order accordingly.
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