Fussell v Q-Comp
[2009] QMC 20
•15 May 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Fussell v Q-COMP [2009] QMC 20
PARTIES:
JILL RUTH FUSSELL
(appellant)
v
Q-COMP
(respondent)
FILE NO/S:
MAG6101/07(1)
DIVISION:
Magistrates Courts – Industrial Magistrate
PROCEEDING:
Appeal against decision of Q-COMP
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
15 May 2009
DELIVERED AT:
Brisbane
HEARING DATE:
12 November 2007, 13 November 2007, 14 November 2007, 31 March 2008, 1 April 2008, 2 April 2008, 3 April 2008
MAGISTRATE:
Payne JV
ORDER:
Appeal allowed
CATCHWORDS:
INDUSTRIAL LAW – WORKERS COMPENSATION – APPEAL AGAINST ADMINISTRATIVE DECISION – injury – reasonable management action – teacher transferred to a new school - whether sufficient training was provided – whether sufficient support was provided
COUNSEL:
R Reed for appellant
F Lippitt for respondent
SOLICITORS:
McMillan Boylson Lawyers for appellant
Respondent on own behalf
THE APPEAL
The Appellant, Jill Ruth Fussell, appeals pursuant to Section 550 of the Workers Compensation and Rehabilitation Act 2003 (the Act) against the decision[1] of Q-Comp, that affirmed WorkCover's decision to reject the Appellant’s Application for Compensation under the Act.
[1] 15 December 2006
APPLICATION FOR COMPENSATION
The Appellant lodged an application for compensation with WorkCover.[2] The application related to the Appellant’s employment as a secondary school teacher with the Department of Education and Arts (the Department).
[2] Exhibit 1
THE FACTS
The Appellant is currently 65 years of age.[3] She obtained her teaching qualification in 1985 and in January 1986 she commenced teaching with her speciality in Art[4].
[3] Date of birth 1 March 1943
[4] Although on occasion she taught English
The Appellant has taught in the State School system. From January 1986 to February 1992 she taught at the Mount Gravatt State High School and then some few months at the Mater Hospital School. The Appellant started work at the Brisbane School of Distance Education (BSDE) in May 1992 and worked there until December 2005.
Whilst at BSDE the Appellant taught in “distance mode”, communicating with geographically isolated students by written and electronic means and on some occasions, although not often, would maintain contact with face to face teaching through extension services programs that BSDE offered.
The Principal at BSDE from 1991 to 2003 was Sydney Robert Rasmussen (Bob Rasmussen). Mr Rasmussen was also a District Inspector employed by the Department from 1988 to 1991. In his evidence when asked about the Appellant whilst she was at BDSE he said:-
· He regarded the Appellant “very highly as a teacher” in the distance education mode,[5]
[5] Transcript page 264
· She taught senior education, art and also contributed significantly to the development of the Senior Education Art Work Program.[6]
· She was nominated by colleagues in the school for the Queensland Chapter Ward from the Australasian Association of Distance Education Schools[7]; and
· He agreed she was a competent teacher, an intelligent woman and very dedicated to her work.[8]
[6] Transcript page 264
[7] Transcript page 266
[8] Transcript page 269
TRANSFER
In October 2005 the Appellant was informed by the Department that she was to be transferred to Marsden State High School (Marsden) to commence there in January 2006.[9] The Appellant unsuccessfully appealed that transfer and was advised a couple of days before she was to commence at Marsden. She commenced work at Marsden on 19 January 2006. I accept the Appellant although disappointed over the failure of her appeal was optimistic about commencing work at Marsden.[10]
[9] Exhibit 8
[10] Transcript page 25
INDUCTION
As with all other new teachers to the school the Appellant received a one day induction. This included a session on behaviour management. The Appellant was also given a folder containing the resources she needed to teach art. There was no other induction or session designed to take into consideration she had not been engaged in traditional classroom teaching for some thirteen years.
STUDENT BEHAVIOUR
At the time Marsden State High School had approximately 1,560 students and a teaching staff of 97.[11] It was a “point 2”[12] school reflecting its low socio-economic catchment area and the associated difficulties experienced by teaching staff and was considered a “complex” school. There were also a number of students with behavioural difficulties and a number of students with special needs at Marsden.
[11] See Exhibit 9
[12] See Exhibit 25, Transfer Guidelines. Teachers at “point 2” schools accrued points at an advanced rate towards eligibility for transfer
The Appellant taught classes 8C, 8E, 9A, 10A, 10B and 11A. In 8C there were numerous instances of disruptive behaviour and many of the students had learning difficulties. The Appellant also had difficulties with disruptive behaviour in classes 10A and 10B contributed to by the fact, that due to staffing levels, a number of male students who had no interest in art where put into that class[13].
[13] Transcript pages 30 to 35
The Appellant’s minimum class size was 25 students.
The Appellant communicated to Deputy Principals Kerri Holzwart and Libby Coyer and to the Head of the Art Department Jenny Fletcher that she was experiencing behavioural problems with some students in classes 8C, 10A and 10B.
I accept the Appellant was given a copy of the Behaviour Management book[14] written by Mr Ford in or about May 2006.
[14] Transcript page 81 lines 01-11
At the end of Term 1 or early Term 2 the Appellant received some assistance from Mr Leitch an Advisory Visiting Teacher (AVT) who specialised in behaviour management.
Mr Leitch attended the Appellant’s classrooms on two or three occasions while she taught and he provided informal feedback and advice on methods of dealing with the students. There was no formal or written feedback nor was there a report provided.
From late April/early May 2006 Ms Fletcher provided the Appellant written tasks sheets setting out work to be completed by the Appellant within certain timeframes. The Appellant provided handwritten responses on these tasks sheets.[15] There were also half hourly meetings between Ms Fletcher and the Appellant and these meetings took place on 2 May, 9 May and 17 May 2006.
[15] See Exhibits 12, 13 and 14
ADOBE PHOTOSHOP
During the first term of 2006 the Appellant was advised by the Head of Department, Jenny Fletcher, that she would be required to teach digital art to years 8 and 9, by using a computer program Adobe Photoshop.
The Appellant had limited computer skills, had never used nor had she been trained in the use of Adobe Photoshop and digital art in general. Adobe Photoshop had not been used by the Appellant at BSDE.
Adobe Photoshop was installed on computers in the art staffroom, on two laptops and on all computers in the art computer classroom, I accept the relevant program, Adobe Photoshop 4 was not available on the school computers until term 2 2006[16], but that Adobe Photoshop 5, the older version was available and the fundamentals of the program was the same.
[16] There was an older version of Adobe Photoshop on the computers and the fundamentals were the same.
The Appellant made her lack of training in digital art known to Ms Fletcher and Ms Fletcher did some in-service training. There were also a set of books about a step-by-step teaching process of the program.
MANAGING UNSATISFACTORY PERFORMANCE
Don Whitehouse, the Principal at Marsden State High School called the Appellant to a meeting on 22 May 2006. The Appellant had previous contact with the Principal at the induction and on no other occasion.
During that meeting the Appellant was told:-
· He had been told by Deputy Principals Holzwart & Coyer and by the Head of Department, Jenny Fletcher, about the Appellant’s performance and the difficulties she was having with classroom management.
· There were concerns with her computing knowledge.
· She was being placed on a program for Managing Unsatisfactory Performance (MUP).
· Her classroom performance over a period of 4 weeks, would be supervised by Deputy Principals Coyer and Holzwart and also Ms Fletcher and possibly Mr Leitch.
The Appellant was dissatisfied with this process and asked what would happen if she failed. She was advised there would then be an assessment done for two weeks by outside employees of the Department of Education who would deem whether or not she was of a diminished performance level and if she failed she would be dismissed[17].
[17] See Exhibit 15
The Appellant raised her objections referring to her previous teaching record, good work ethic, 20 years devoted service and her difficulties in teaching digital art she had never taught before.
OUTCOME
After that meeting the Appellant left the school feeling unwell and went to see her General Practitioner Dr Thong. She has been unable to work since that time and was certified unfit due to “stress anxiety.”
IN SUMMARY
After 13 years of teaching at BSDE, the Appellant was considered to be a competent and dedicated teacher and one capable of making an outstanding contribution.
Within about four months of commencing work at Marsden, from 19 January 2006 until 22 May 2006, the Appellant was placed on a program for Managing Unsatisfactory Performance, where at the end of which, if her performance was not satisfactory she could be dismissed.
THE LAW
Compensation is payable[18] for an injury sustained by a worker. It is not contested and I accept the Appellant was a worker[19].
[18] Pursuant to Section 108 of the Act
[19] Meaning of Worker and Section 11 of the Act
The onus is on the Appellant to demonstrate the Reviewed Decision was wrongly made.[20]
[20]State of Queensland (Queensland Health) v Q-Comp and Coyne [2003] QIC 118
INJURY
Section 32 of the Act defines “injury” as follows:-
32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(3) Injury includes the following—
(a) a disease contracted in the course of employment, whether at or away from the place of employment, if the employment is a significant contributing factor to the disease;
(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—
(i) a personal injury;
(ii) a disease;
(iii) a medical condition if the condition becomes a personal injury or disease because of the aggravation;
(c) loss of hearing resulting in industrial deafness if the employment is a significant contributing factor to causing the loss of hearing;
(d) death from injury arising out of, or in the course of, employment if the employment is a significant contributing factor to causing the injury;
(e) death from a disease mentioned in paragraph (a), if the employment is a significant contributing factor to the disease;
(f) death from an aggravation mentioned in paragraph (b), if the employment is a significant contributing factor to the aggravation.
…
(5) Despite subsection (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
(a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
(b) the worker’s expectation or perception of reasonable management action being taken against the worker;
(c) action by the Authority or an insurer in connection with the worker’s application for compensation.
THE CASES
Section 32(1)
In Avis v WorkCover Queensland[21] President Hall said:-
“…the test posited by the words “arising out of” is wider than that posited by the words “caused by” and that the phrase “arising out of” whilst involving some causal or consequential relationship between the employment and the injury, does not require that direct or proximate relationship would be necessary if the phrase used were “caused by”.”
[21][2000] QIC 67; 165 QGIG 188
Section 32(5)
In Delaney v Q-Comp[22] President Hall said:-
“The Acting Industrial Magistrate dismissed the issues at headings (4), (6) and (7) as but blemishes. The critical point is that there were repetitive blemishes joined by subject matter, time and personality in a discordant workplace housing, to the knowledge of management, a worker who had decompensated once before in the face of workplace stress. In my view, the Appellant was entitled to a much more “global” evaluation of the actions in which the management team had engaged.”
[22] [2005] QIC 11
In Q-Comp v Hohn[23] the learned President Hall said:-
“If indeed it was the submission of Q-Comp at first instance that once an injury was in any way touched by reasonable management action reasonably taken it is not compensable, I agree … that such submission ‘… overstates the effect of section 32(5).’ Indeed, in my view the submission is inconsistent with Delaney v Q-Comp …”. His honour further went on to explain[24], that in Delaney one of the contributing factors to the decompensation was conceded to be reasonable management action. Nevertheless, a global approach was taken and s 32(5) was not applied.”
[23] [2008] QIC 56
[24] At page8
In WorkCover Queensland v Kehl[25] President Hall said:-
“…there seems to be no reason why “reasonable” in s 35(5)(a) should not be treated as meaning “reasonable in all the circumstances of the case”…….There seems to be no reason for concluding that the circumstances of the case do not include circumstances relating to the psychological makeup of the worker where those circumstances are known to the employer……..…It is simply a matter of recognising that fixed with knowledge of a worker’s makeup a reasonable person would take that knowledge into account in assessing what is a reasonable way in which to implement an otherwise reasonable decision.”
[25] [2002] QIC 23; 170 QGIG 93
The Department’s Transfer Guidelines[26] state that:-
[26] Exhibit 25 at page 5
“In effecting a required transfer Senior Human Resources Consultants should:
· ensure that the proposed transfer is reasonable;
· recognise the Departmental employment history of the teacher.”
Further, the Departmental ‘Policy on Managing Performance’[27] contained the following passage:-
[27] Exhibit 3
“2.4Induction
2.4.1 It is essential that all teaching staff are properly inducted according to their needs and those of the school/department. Employees’ particular induction needs must be addressed, whether they are beginning teachers; transferring to a new school; transferred/promoted to a new role; … induction should also foster the personal and professional development of employees.
2.4.2 The principal and the employee are jointly responsible for induction. The principal must ensure that a planned induction:
…
is based on principles of best practice for teaching and learning.” [emphasis added].
Clause 4.1.2 of the Award[28] which states:-
“4.1.2 An employer may direct an employee to carry out such duties and use such tools and equipment as may be required provided that the employee has been properly trained in the use of such tools and equipment (where relevant).” [emphasis added].
[28] Exhibit 4; the Teachers Award bound the Department and had the force of law; see s 123, s 124 Industrial Relations Act 1999
APPLICATION OF THE LAW
The Appellant must establish:-
1. She suffered an injury as defined in Section 32(1) or Section 32(3) of the Act;
2. The condition was not removed from the definition of “injury” by Section 32(5) of the Act.
APPLICATION OF SECTION 32(1)
The medical evidence is that the Appellant suffered from an adjustment disorder with mixed anxiety and depressed mood.[29]
[29] Doctor Lockwood, Psychiatrist report of 26 July 2006 (Exhibit 27) at pages 12 and 13. Report of Peter Jordan, Psychologist of 17 August 2006 (Exhibit 6) at 9.1 – 9.5 and also see report of Peter Jordan of 14 October 2007 (Exhibit 7).
The Appellant’s employment at Marsden with the Department was the sole contributing factor to the onset of her condition.[30] There were no identified non-work stressors.[31]
[30] See again reports of Doctor Lockwood (Exhibit 27) and Peter Jordan (Exhibit 6)
[31] Report of Peter Jordan of 17 August 2006 (Exhibit 6) at 7.1
Accordingly I find the Appellant’s psychological condition is a personal injury as defined in section 32(1) of the Act.
APPLICATION OF SECTION 32(5)
The Appellant submitted[32] “…the Appellant’s condition is not withdrawn from the definition of injury by operation of section 32(5). …her condition arose out of a number of problems which she encountered following her transfer to Marsden and that those problems were attended by or resulted from, management action that was not reasonable, or alternatively was not taken in a reasonable way.
[32] Written submissions of Mr Reed, Counsel for the Appellant at paragraph 35
… the Department, both generally and through its agents at Marsden, unreasonably failed to foresee and therefore take adequate account of the difficulties which the Appellant would face in adjusting from her previous teaching environment at BSDE, and failed to provide her with the necessary support, training and other adjustments to assist her in dealing with the environment of a complex school in a low socioeconomic area, the difficulty inherent in classroom teaching in such a school, and the requirements of teaching a complex new subject for which she had no training.”
The Respondent submitted:-[33]
[33] See written submissions of Respondent page 16
“Some sympathy can be had for Ms Fussell’s predicament. She clearly enjoyed her work at the Brisbane School of Distance Education and beyond any doubt her work performance was very satisfactory. She was then taken from that comfortable environment and thrust into the classroom teaching at a school of some complexity. No doubt she would have much preferred to see out the remainder of her career at the Brisbane School of Distance Education.
However, the transfer was neither unlawful nor improper ……….
Whilst at the school, the administration team and Head of Department did all that could be practicably and reasonably be done to assist her”
In this matter the various actions referred to by the parties can be broken into four considerations:
1. Transfer and transition;
2. Behavioural Management
3. Adobe Photoshop
4. Managing Unsatisfactory Performance.
Dr Lookwood[34] said in her evidence that it was unlikely that the Appellant would have decompensate in the absence Managing Unsatisfactory Performance action by the principal[35] but that the significant workplace stresses played a part in the cause of the Appellants decomposition[36]
[34] See her report of 26 July 2006 para 3 pp2-3
[35] Transcript pp 297 line 3 -9
[36] Transcript pp297 line 40-44
Accordingly I will consider each of the management actions but in the context of a global evaluation[37].
[37]Delany v Q-Comp [2005] QIC11
TRANSFER AND TRANSITION
The Appellant had taught for some 13 years at the Brisbane School of Distance Education (BSDE) where she taught in a distance mode and had very limited classroom teaching.
Further, the school she was transferred to was a complex and difficult school, with particularly sizeable classroom numbers.
I accept the administrators at Marsden probably did the best they could with the resources they had available and what they knew, but the Department provided no supervision or plan for the Appellant’s transition from BSDE to Marsden.
The Department’s Transfer Guidelines[38] at page 5 states:
[38] Exhibit 25
“In effecting a required transfer Senior Human Resources Consultants should:-
· Ensure that the proposed transfer is reasonable;
· Recognise the Departmental employment history of the teacher.”
The Department’s policy on Managing Performance[39] provides:-
[39] Exhibit 3
2.4 Induction
2.4.1 It is essential that all teaching staff are properly inducted according to their needs and those of the school / department. Employees particular induction needs must be addressed, whether they are beginning teachers; transferring to a new school; transferred / promoted to a new role; …. Induction should also foster the personal and professional development of employees
2.4.2 The Principal and the employee are jointly responsible for induction. The Principal must ensure that a planned induction: …. is based on principles of best practice for teaching and learning.”
The Human Resources Consultant, Jenny Eagar,[40] said in her opinion:-
“…the claimant was placed in an environment that was a mismatch for her skills and cultural background. Despite this mismatch, the claimant was then not adequately trained to ensure preparedness for this cultural change and received inadequate ongoing support resulting in a negative outcome.
[40] Called as an expert witness see her CV, Exhibit 21
This is evident in the following:
· A deficient and very generalized induction program for the claimant
· Inadequate and poorly structured skill training program in software relevant to the curriculum (spread over 4 months)
· Inadequate training in the development of IEPs for special needs students in the care of the claimant (none identified)
· Inadequate upfront training and ongoing management support in relation to addressing behavioural management issues of the clientele in the care of the claimant (general induction, then addressed in April by AVT)
· Inadequate monitoring and mentoring of the claimant in the classroom by supervising staff who were familiar with the specific clientele (particularly where there was clear evidence that the claimant was culturally misaligned with the work environment)
· Inappropriate management strategies adopted when the claimant was considered to be under performing in the work environment (pressure as opposed to support in May ’06 memos).
The cumulative effect of these breaches of best practice human resource management is that the claimant was placed in a culturally foreign work environment without adequate training or sufficient management support.”
It can be noted that in 2007, the year after the Appellant was transferred, the Department’s policy for the transferring of teachers from the BSDE and their transition underwent a significant change.
In a letter to the Brisbane School of Distance Education teaching staff dated 12 March 2007[41] Gary Innes, a Regional Human Resources Manager, noted that “a planned transition will occur to support teachers who are transferring. This may include work shadowing and negotiated release time.”
[41] Exhibit 5
Attached to Mr Innes letter was a document entitled “Transition Arrangements for Teaching Staff at BSDE 2007”. This document provided that :- “Teachers that are transferred from the school have not delivered programs within a regular classroom setting for a period of three years or more would be afforded the opportunity to access a transition program at the new workplace. This would be negotiated as a part of the transfer process.”
Such a transitional program was not put in place for the Appellant when she was transferred the year before with the resultant consequences.
Further Mr Jordan[42], Psychologist, said in his report:
“In my opinion, Mrs Fussell was in need of a great deal more support than what she described was provided.”
[42] Report dated the 17 August 2006
I consider the Department should have had an induction appropriate for the Appellant’s specific needs, monitored her transition, reduced her workload and had appropriate mentoring[43], and the failure in this regard was either unreasonable management action or if reasonable management act it was not undertaken in a reasonable way.
[43] I accept that she had a full class workload
BEHAVIOURAL MANAGEMENT
The Appellant taught several classes[44] and of those, classes 8C, 10A and 10B, had a number of students with challenging behaviour[45].
[44] I accept that she had the same number of classes as any other teacher, and had no reduced workload.
[45] Marsden is a point 2 school
Marsden did have training in behaviour management and used the system described in Mr Fordes book.
There was behaviour management training at the induction session which was held on the first day for all teachers. Further Ms Holzwart facilitated a meeting of all teachers of class 8C for them to share their behaviour management strategies[46] also Ms Holzwart met with the Appellant for an hour to talk about behaviour management strategies[47].
[46] Transcript pp197 line 40
[47] Transcript pp 198 line 12
The Appellant was given a copy of Mr Fordes book by Ms Fletcher[48]. Ms Fletcher also advised the Appellant that she could attend any of Ms Fletcher’s classes to learn how to Ms Fletcher managed her students[49].
[48] I accept the Appellant did not know about Mr Fords book until about May 2006 – Transcript pp181
[49] The Appellant did not take up this offer
Further the school organised that Mr Leitch, an advisory teacher, to sit in on the Appellant’s classrooms on about three occasions. Mr Leitch gave her informal oral feedback on about two occasions.
In his report[50] Mr Jordon said:-
[50] 17 August 2006
· “The normal course of events when a teacher is experiencing difficulties of a behavioural nature, is that a formalised behaviour support plan is put in place”[51];
[51] Exhibit 6 at 10.4.2
· “One would expect the plan to be in place for a significant period of time; for example a couple of months… It would be expected that the plan would involve ongoing support, visits and consultations between the teacher and the A/VT behaviour over the timeframe of the plan.”[52]
[52] Exhibit 6 at 10.4.3
· The period of time that elapsed between the final observation session by Mr Leitch and the meeting with the principal on 22.05.06 is significant. This two week period would in no way allow for a serious classroom behavioural intervention to take place.”[53]
· It seems that no such support plan was put in place…”[54]
· This is not adequate support and does not come close to the degree of sophistication that one would normally expect from a classroom behavioural intervention program.”[55]
[53] Exhibit 6 at 10.4.6
[54] Exhibit 6 at 10.4.6
[55] Exhibit 6 at 10.4.7
Ms Eager in her report[56] said the Appellant received inadequate ongoing support and this was evident in the following:-
· Inadequate upfront training and ongoing management support in relation to addressing behavioural management issues of the clientele in the care of the claimant;
· Inadequate monitoring and mentoring of the claimant in the classroom by supervising staff who were familiar with this specific clientele (particularly where there is clear evidence that the claimant was culturally misaligned with the work environment.)
[56] Exhibit 22
The Principal, Mr Whitehouse, gave evidence that Ed Fordes behaviour management methodology which had been adapted by the school was “very labour intensive scheme … and it required lots of training of staff.”[57] There was no evidence the Appellant was given this type of training.
[57] Transcript pp 279 lines 10-12
When considering all of the evidence, including the efforts made by Marsden to assist the Appellant with dealing with disruptive students and student behavioural issues I find the initial training and then the observations sessions and informal feedback by Mr Leitch were both inadequate.
Considering all of these matters I do not consider that the training of the Appellant or the ongoing support of the Appellant in relation to behavioural management was reasonable management action, or if it was reasonable management action, it was not undertaken in a reasonable way.
Adobe Photoshop
The Appellant was advised at the start of term 1 that in term 2 she would be required to teach a Adobe Photoshop to her grade 9 class.
In his report Mr Hutson[58] describes Photoshop as:-
“Photoshop is a professional image-editing and graphics creation software from Adobe. It provides a large library of effects, filters and layers and is the industry standard graphics creation and manipulation package. Such a versatile and powerful program necessitates complex layers of interactive tools to meet industrial and creative needs.
To productively access and use such a program requires pre knowledge of basic computer processes managing datasets and file formats. Photoshop enables the user to interact with a variety of file formats which are determined by the output model…Prerequisite 1 is a confidence and knowledge of generic computer processes.”
[58] Exhibit 20 page 1
The Appellant had never taught Adobe Photoshop or digital art while she was at BDSE and she had never received any training in Adobe Photoshop.
It was known at Marsden that the Appellant was having difficultly with teaching Digital Art as she had made it known at the outset that she did not have the skills. It was communicated by Ms Fletcher to Mr Whitehouse early in term 1 of 2006.
The other matter known to the Department was that Appellant was 63 years of age from which it may be inferred there may be a likelihood she was not confident with computers.
A version of Adobe Photoshop was installed on the computers in the Arts staff room on two laptops and computers in the Art computer classroom. There was a class set of books on the subject. I accept a version of Adobe Photoshop was loaded on the school computers including in the Art’s staff room although I accept the Appellants evidence that the version that she was required to teach was not available at the school until Term 2.
Management at Marsden did not ignore the Appellant’s lack of knowledge or understanding to teach digital art using Adobe Photoshop and Ms Fletcher gave some four hours training to Ms Fussell and another teacher Rhoda gave Ms Fussell a demonstration. However, the problem persisted. In the memorandum of 17 May 2006[59] Ms Fletcher noted that:-
“it is apparent from the tutoring that I gave you on Tuesday that you were unable to find the program on the computer or complete any of the functions that you were required to teach without prompting from me”.
[59] Exhibit 14 at page 2
The Departmental officers at Marsden in including Ms Holzwart and Ms Fletcher believed that the Appellant as an Art teacher should be able to teach anything within the range of Art subjects including Digital Arts. Ms Fletcher in her Instruction Sheet to the Appellant[60] provided under the heading Year 9 Digital Art “As I am sure you understand it is our individual responsibility to ensure we have the necessary skills to teach this unit.”
[60] Exhibit 12
However clause 4.1.2 of the Award[61] bound the Department and had the force of law;[62] which provides:-
“4.1.2 An employer may direct and employee to carry out such duties and use such tools and equipment as maybe required provided that the employee has been properly trained in the use of such tools and equipment (where relevant)”
[61] Exhibit 4
[62] see sections 123 and 124 Industrial Relations Act 1999 (Qld)
The attitude and the approach by management at Marsden in this respect was not reasonable as it failed to take into consideration the Appellant’s previous teaching position at BSDE and her lack of previous training.
Mr Ian Hutson the QUT Lecturer[63] in his report provided “the client would need to at least six months of supportive tutorials to ….. confidence. The first need would be to provide generic understanding of system and data management. The second would be sequence two tutorials per week allowing for the student sufficient time to absorb, rehearse and achieve an understanding of how the learning components interrelate. She needs access to Photoshop at work and at home.”
[63] Exhibit 20
I consider the management action taken in regard to Adobe Photoshop was either unreasonable, or if reasonable, was not undertaken in a reasonable way.
MANAGING UNSATISFACTORY PERFORMANCE
On 22 May 2006 the Appellant met with the principal, Mr Don Whitehouse. At that meeting the Appellant was placed on a program for Managing Unsatisfactory Performance (MUP). She was told she was being placed on the MUP because she was having difficulties in managing her classes. She was told that if she failed under supervision she would be dismissed.
In his report Mr Jordon[64] said: -
[64] Exhibit 6
· 10.4.1 “Mr Paul Leitch, the advisory visiting teacher-behaviour support (A/VT Behaviour), observed her classes on three occasions (19/04/06, 26/04/06, 05/05/06).”
· 10.4.2 “The normal course of events when a teacher is experiencing difficulties of a behavioural nature, is that a formalised behaviour support plan is put in place. This is done after behavioural observations are completed by the A/VT (Behaviour). A behaviour support plan is documented and identifies:
o Behavioural goals to be achieved
o Strategies to be employed
o Who will have responsibility for implementing the strategies
o Processes for monitoring the program and evaluation of success
o Dates for review”
· 10.4.3 “This plan is generally put together at the end of the initial observation sessions at a meeting with the teacher, the A/VT-Behaviour and a member of the administration. Roles are clearly identified and expectations of the whole team are delineated. One would expect the plan to be in place for a significant period of time; for example a couple of months. Generally it would be expected that the plan would involve ongoing support, visits and consultations between the teacher and the A/VT-Behaviour over the time frame of the plan.”
· 10.4.4 “Mrs Fussell advised me that this process did not occur. In fact, two weeks after the final observation session by Mr Leitch, she was told she would be placed on diminished performance because she was having problems in managing some of her classes.”
· 10.4.6 “The period of time that elapsed between the final observation session by Mr Leitch and the meeting with the principal on 22/05/06 is significant. This two-week period would in no way allow for a serious classroom behavioural intervention to take place. It seems that no such support plan was put in place and that Mrs Fussell was magically expected to improve her performance after three observation sessions and a bit of “mentoring and feedback” from Mr Leitch as well as one classroom observation of the HOD teaching ADOBE Photoshop. This is despite the fact that her management difficulties were supposedly so serious that diminished performance was warranted two weeks later.”
· 10.4.7 “This is not adequate support and does not come close to the degree of sophistication that one would normally expect from a classroom behavioural intervention program. Review of policies and procedures on behavioural support available from Education Queensland will show that the reality of the support provided to Mrs Fussell does not match the rhetoric of Education Queensland’s policies regarding behaviour management. Nor, in my opinion, does it match the degree of support provided to teachers in other state schools.”
· 10.5 “It seems that her current condition was caused by management action. The question remains as to whether this management action was reasonable. I have formed the opinion from Mrs Fussell’s account, that the management action taken was completely unreasonable.”….In my view, it is completely unrealistic to expect a 63 year-old woman who has worked in a completely different environment (in terms of disciplinary and socio-economic problems) for 13 years to cope with such a transition. A first year teacher who had recently been exposed to four years of training geared towards a typical school environment would be in a much more advantageous position than Mrs Fussell. For such a transition to be successful for her, there would need to be a very large amount of support provided to her. From the information available to me, it seems that Mrs Fussell made her best attempts to try to cope with the situation. She was given inadequate training and support with regard to the use of ADOBE Photoshop. She had to cope with a variety of new systems and procedures that she was unused to. Moreover, the behavioural support that was offered was less than that provided in most other schools and not consistent with the procedures generally expected in terms of behavioural support planning and programming in state schools. All of these factors would have increased her vulnerability to the onset of her current condition by elevating her generally normal levels of anxiety.”
Although an MUP program might be implemented in terms of policy I do not consider that it was reasonable in the circumstances of the Appellant. As I have stated I consider the Department failed to carry out an appropriate induction for the Appellant and also did not allow sufficient time for any recommended behavioural intervention by Mr Leitch to take place.
Further the lack of appropriate induction and the lack of support and mentoring meant at this time that the Appellant was vulnerable and showing distress because of these work related stressors.
The court is left considering that it is extraordinary that a teacher of 20 years service with an apparently unblemished record, and who was clearly committed and dedicated to teaching was within some four months of starting work at Marsden being placed on a MUP program.
I consider that placing the Appellant on the MUP in the context of the matter, was unreasonable management action, or if reasonable it was undertaken in an unreasonable way.
Applying the global test has suggested in Delany v Q-Comp, I do not consider that the Appellants condition is withdrawn from the definition from injury for operation of section 32(5).
I consider that the Department:-
· Unreasonably failed to foresee and take adequate account of the difficulties the Appellant faced in adjusting from her previous teaching environment at BSDE;
· Failed to provide her with the necessary support;
· Failed to provide her with training and support in other adjustments to assist her with dealing within the environment of complex school and a low socio-economic area;
· Failed to take adequate account of the difficulties in teaching in such a school combined with the requirement of teaching the Digital Art program, Adobe Photoshop without the necessary training.
I consider the management action of the Department or its agency at Marsden was unreasonable or alternatively if reasonable, was not undertaken in a reasonable way.
CONCLUSION
I make the following orders:-
1. The Appeal is allowed.
2. The Appellant is entitled to compensation from 22 May 2006 for a psychological injury diagnosed as acute adjustment disorder with mixed anxiety and depressed mood.
3. The Appellant’s application for compensation is remitted to WorkCover to be dealt with in accordance with these orders and the Act.
4. I will hear submissions as to costs.
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