Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator)
[2015] QIRC 162
•3 September 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 162 | |
PARTIES: | Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) | |
CASE NO: | WC/2013/229 | |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator | |
DELIVERED ON: | 3 September 2015 | |
HEARING DATES: | 28, 29, 30, 31 January 2014, 20, 21 March 2014, 21 July 2014 | |
HEARD AT: | Brisbane | |
MEMBER: | Industrial Commissioner Neate | |
ORDERS: | 1. The appeal is allowed. 2. The decision of the Workers' Compensation Regulator is set aside. 3. The application for workers' compensation by Karen Ann Burton is not one for acceptance. 4. The Respondent is to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission. | |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - psychological injury - whether worker's employment was a significant contributing factor to her injury - whether reasonable management action taken in a reasonable way - appellant bears onus of proof | |
| CASES: | Adelaide Stevedoring Company Ltd v Forst (1940) 64 CLR 538 | |
| APPEARANCES: | Mr P.B O'Neill, counsel instructed by Clayton Utz | |
Decision
The Gold Coast City Council ("the Appellant," "Council") has appealed against a decision of the Review Unit of Q-COMP (now Simon Blackwood, Workers' Compensation Regulator) ("the Respondent") to accept an application by Karen Ann Burton for workers' compensation in accordance with s 32 of the Workers' Compensation and Rehabilitation Act 2003 ("the Act").
The Appellant seeks orders from the Queensland Industrial Relations Commission ("the Commission") that:
(a) the appeal be allowed;
(b) the Respondent's decision of 13 June 2013 be set aside and substituted with a decision to reject Mrs Burton's application; and
(c) the Respondent pay the Appellant's costs of and incidental to the appeal.
Background
Mrs Burton has been employed by the Appellant since 1 October 1997, most recently as the Senior Road Safety Officer for approximately 10 years. Her husband, Ian Burton, was a Project Officer - Road Safety with the Appellant from 2009 to 2012. They were the only two officers in the Road Safety Unit ("the Unit"). The Unit was part of the Traffic Management and Operations - Engineering Services Branch ("the Branch").
In September 2010, Graham Bilton, who was the Manager of the Branch, was seconded to the Council's Light Rail Project. As a consequence, Tyrone Gerada took over this role, initially in an acting capacity.
Mrs Burton reported directly to Mr Bilton and then to Mr Gerada.
On 21 March 2011, Mrs Burton fell and sustained a work-related injury to her right ankle, resulting in a successful claim for workers' compensation.
Mrs Burton required relatively little time off work because of the ankle injury (22 to 28 March 2011), but required ongoing medical treatment and remained on workers' compensation for this reason.
Mrs Burton, Mr Gerada and Louise Cook (the Council's Rehabilitation Case Manager) met to discuss the workers' compensation claim on 16 May 2012. Following the meeting, Mrs Burton became distressed, and required transportation by Queensland Ambulance Service to the Allamanda Private Hospital where she was diagnosed with a pseudoseizure due to stress.
On 24 September 2012, Mrs Burton lodged an application for compensation in respect of a psychological injury said to have been sustained by her on 16 May 2012 as a consequence of "unreasonable management action towards me, in relation to my workplace injury" (Exhibit 4). By letter dated 10 January 2013, Mrs Burton was advised by the insurer that her application was rejected (Exhibit 2).
An application for claim review dated 10 April 2013 was made to the Respondent (Exhibit 3). The review decision, dated 7 June 2013 and sent to Mrs Burton by letter on 13 June 2013 (Exhibit 4), was that the Respondent had:
(a) set aside the decision of the Appellant to reject Mrs Burton's application for compensation; and
(b) substituted a new decision to accept the application in accordance with s 32 of the Act.
It is against the review decision that the current appeal is made.
Legal requirements
The appeal has to be decided by reference to s 32 of the Act. At the time when Mrs Burton was diagnosed as having a psychological injury the subject of the application, the relevant subsections provided:
"(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.
…
(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;
…
Examples of actions that may be reasonable management actions taken in a reasonable way -
action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment."
For Mrs Burton to have a valid application for compensation the following elements have to be established:
(a) that Mrs Burton was a "worker" for the purposes of s 11 of the Act;
(b) that Mrs Burton sustained a "personal injury";
(c) that the injury arose "out of, or in the course of," her employment;
(d) that her employment was "a significant contributing factor to the injury;" and
(e) that her claim is not excluded by the operation of s 32(5)(a) or (b) of the Act.
The issues
There is no dispute, and I proceed on the basis, that:
(a) Mrs Burton is a "worker" for the purposes of the Act;
(b) Mrs Burton sustained a psychological injury.
There is some issue whether the personal injury arose "out of, or in the course, of" Mrs Burton's employment. At the hearing, the main issues between the parties were:
(a) whether Mrs Burton's employment was a significant contributing factor to her injury; and
(b) whether Mrs Burton's psychological disorder arose out of, or in the course of, "reasonable management action taken in a reasonable way" by the Appellant in connection with her employment.
Onus of proof and relevant evidence
The Appellant carries the burden of proof on the balance of probabilities.[1] For the appeal to succeed, the Appellant must prove, on the balance of probabilities, that the claim for compensation should be rejected because:
(a) Mrs Burton's employment was not a significant contributing factor to her injury; or
(b) Mrs Burton's injury arose out of, or in the course of, reasonable management action taken in a reasonable way by the Appellant in connection with her employment; or
(c) Mrs Burton's injury arose out of, or in the course of, her perception of reasonable management action being taken against her.
[1] State of Queensland (Queensland Health) v QComp and Beverley Coyne (2003) 172 QGIG 1447, 1448 (Hall P).
Workplace events and interactions that preceded Mrs Burton's psychological injury
Evidence was given about a range of factors and events (sometimes referred to as stressors) that preceded, or are alleged to have occurred before, Mrs Burton's decompensation on 16 May 2012. Some are discrete, others are inter-related. They include:
(a) change of manager of the Branch when Mr Gerada commenced as acting manager;
(b) the content and conduct of meetings between Mr Gerada and Mr and Mrs Burton (including Mr Gerada's attitude to Mr and Mrs Burton working together, his reference to the perception that they were isolating themselves from other employees in the Branch, and the possible transfer of Mr Burton to another part of the Council's organisation);
(c) Mr Gerada's requirements for monthly (and then fortnightly) meetings with Mrs Burton, and his requirements of her in relation to those meetings;
(d) Mr Gerada's management style;
(e) Mrs Burton's injury to her right ankle and subsequent treatment of it and issues about it (including Mr Gerada's comments about the ongoing treatment of Mrs Burton's ankle, and a conversation in the open office between Mr Gerada and Mr Burton on 3 May 2012); and
(f) meetings between Mr Gerada and Mrs Burton on 15 May 2012; and between Mr Gerada, Ms Cook and Mrs Burton on 16 May 2012.
Where different accounts of a particular meeting were given at the hearing, the evidence of each is summarised in these reasons.
Before considering the evidence in relation to those events and factors, it is appropriate to note the qualifications and working relationship of Mrs and Mr Burton.
Karen Burton: Mrs Burton has a Certificate in Road Safety and a Diploma of Road Safety, and planned to commence a research master's degree on the effects of advertising for road safety. She commenced work with the Appellant on 1 October 1997 as a Traffic Engineering Officer ("TEO") and, after approximately four years, took on the role of Senior Road Safety Officer, a Level 7 position. While employed in the latter role, she was associated with awards granted to the Appellant for road safety programs (including a program called Hands Up for Road Safety, and the SMART[2] program which delivered five levels of motor cycle training to motorcyclists). Mrs Burton said that before September 2010:
"I was enjoying my work. I found it fulfilling. I was making a difference which was my job to get out there in the community and make a difference to try and stop crashes, stop people getting hurt, change road user behaviour and assist the community."[3]
[2] Safer Motorcycle Advanced Rider Training
[3] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 30 January 2014) 16.
Ian Burton: Mr Burton commenced work as a permanent employee of the Appellant in January 2005 as a TEO. In about August or September 2009, he moved to the Road Safety Unit because he and Mrs Burton "were passionate about road safety and people safety." He was appointed at Mrs Burton's suggestion. His position was at Level 5 and reported to the Senior Road Safety Officer (Exhibit 27). Before joining the Unit he had assisted Mrs Burton in moving heavy equipment involved in road safety initiatives. That earlier work, and his appointment to the Unit, was agreed to or facilitated by the then manager, Mr Bilton. Mr and Mrs Burton had worked together previously in businesses before moving to the Gold Coast and being employed by the Appellant. Mr Burton had shown interest in some of the reports that Mrs Burton had compiled, particularly in relation to changing behaviour through initiatives.
Change of manager in September 2010
In September 2010, Mr Gerada was seconded to the position of Manager of the Branch to replace Mr Bilton, who had been seconded to the Light Rail Project. Mr Gerada's secondment was initially for a period of 12 months. That was extended because Mr Bilton's secondment to the Light Rail Project was also extended. Mr Gerada was appointed permanently to the position in October 2013. Before then, he expected that Mr Bilton would return.
Mr Gerada has a Certificate of Technology in civil engineering and has received training, among other things, in relation to project management. He has been employed by the Appellant in various roles since 1988, becoming executive coordinator for the roads portfolio. He held that role for about six years prior to the secondment, and was responsible for supervising and managing about 15 professional staff. He attended training courses provided by the Council (Exhibit 7), but acknowledged that his training focused on managing projects and resources, achieving project outcomes and timelines rather than good people skills or communicating with people.
The Branch had a total of about 55 staff and comprised three sections (each with a coordinator at Level 8):
(a) Traffic Management and Investigations section, with about nine staff (some of whom were TEOs) for whom Gordon Pincott was the coordinator;
(b) Network Logistics section, coordinated by Ron King; and
(c) Traffic Works and Operation section, with about 36 staff including crews at the Southport depot and the Miami depot, coordinated by Gary Quilliam,
and the Road Safety Unit, a two-person unit led by Mrs Burton to whom Mr Burton reported. Mr Gerada understood that they were married to each other, having been advised of that through the handover from Mr Bilton. He said that he had no significant concern that they were married.
Mr Gerada was to manage the Branch for the duration of Mr Bilton's secondment. In his previous role, Mr Gerada had "quite a bit" of involvement with the Branch, particularly with Mr Bilton and Mr Pincott in relation to particular projects. Mr Gerada had a friendly relationship with Mr Bilton, having liaised with him for "quite a number of years" and having a common interest in music. He had not had any previous involvement with either Mrs Burton or Mr Burton.
Mr Gerada had two handover meetings with Mr Bilton at which they discussed a range of issues and concerns. Mr Bilton mentioned that the Road Safety Unit was, or had been, involved in:
(a) nominating for an international award for the SMART program, that was initiated by the Appellant's Director of Engineering in response to excessive numbers of deaths of motorcyclists at the city of the Gold Coast and on surrounding roads;
(b) a speed awareness trailer program, promoting the deployment or installation of radar devices that gave courtesy speed check information to drivers; and
(c) the Hands Up for Road Safety program featuring Zero the Hero, a bird character that danced with musicians and singers to focus on teaching children about road safety.
Mr Gerada participated in the traffic management liaison group organised by Mr Bilton in relation to the construction of the light rail, and consequently would occasionally have discussions with Mr Bilton after meetings of that group.
According to Mr Gerada, his role was to keep the Branch "ticking over" in readiness for Mr Bilton's return after about 12 months. Accordingly, he was concerned to ensure that programs were delivered and that budgets were formulated on time and performance appraisals were delivered on time, as well as the day-to-day management of the Branch. When he came into the acting Manager's role, he did not have instructions or any intention to make structural changes to the operations of the Branch.
Soon after his appointment as acting Manager, Mr Gerada held an introductory meeting with all of the coordinators and Mrs Burton. He subsequently met separately with each of the unit coordinators in his Branch.
Mr Gerada gave evidence that in the early stage of his role he asked many detailed questions of all the staff. He felt that if he did not ask detailed questions he would be in a "very awkward position to be able to manage a section trying to catch up where Graham [Bilton] left off, and provide to the director and council, to the best of my ability, a seamless transition between managers." He wanted to be able to respond in a timely manner to phone, text or email messages from his director. Consequently he "needed to come up to speed with everything that was going on within the section."
Mr Gerada's first meeting with Mrs Burton
Mr Gerada's evidence: Mr Gerada said that he did not remember the detail of the meeting very well, but recalled that he and Mrs Burton talked in detail about the programs in which the Road Safety Unit was involved. Mrs Burton asked him whether he would support the Unit and its expansion and looking into other initiatives. Her view was that she would like to expand the Unit, and had aspirations of being promoted to coordinator. Mr Gerada responded by saying that initially they needed a plan to look at how the Unit could expand and to look at what work Mrs Burton was doing at the time, given that she was at Level 7 and coordinators are at Level 8. According to Mr Gerada, he "needed to get a bit of a feel for the type of work; whether she was doing low-level administrative work, whether she was focused on higher level work."
Mrs Burton's evidence: At her initial meeting with Mr Gerada, Mrs Burton outlined the program and initiatives in which the Road Safety Unit was involved. She recalled that Mr Gerada was "quite surprised about the extent of the initiatives" and wanted information about how they operated and how much they cost. Mrs Burton confirmed in her evidence that the only program operating at that time was the SMART motorcycle training program (which operated every second weekend between March and September). The plan from that meeting was that Mr Gerada was to consider possibly obtaining additional budget allocation so those other programs could become operational again. Mrs Burton was to put together a submission to go to Council (including an estimate of cost and a plan for the rollout of these programs) to justify why those programs should be run again.
Mrs Burton gave evidence that:
(a) the SMART program was taking a lot of their time (e.g., advertising and organising it, taking bookings, ensuring that people who were booked paid their money and that they were in the correct course), and they put a few thousand people through that program;
(b) the speed awareness trailer program was not operational, but councillors were asking for it to be back online and, having regard to their bookings, the Burtons advised Mr Gerada that they could run the program for approximately two days each week (although some budget would have to be allocated to it); and
(c) the Hands Up for Road Safety program had been shelved "for some time" (possibly five years) and, although a small amount of funding had been allocated, that funding was devoted to the SMART program "because it was huge."
When they were working every second weekend on the SMART program, Mr and Mrs Burton were claiming overtime.
In cross-examination about that first meeting, Mrs Burton:
(a) agreed that it was apparent to her that Mr Gerada knew that Mr Burton, who was working in the Project Officer role, was her husband;
(b) disagreed that Mr Gerada made no adverse comments about that;
(c) did not recall questioning Mr Gerada about whether he would support the Road Safety Unit and its expansion;
(d) disagreed that she indicated to Mr Gerada that she had aspirations about expanding the Road Safety Unit and moving up a level to become a coordinator (although she agreed that she indicated to him that she had aspirations of going up to a Level 8 position);
(e) said they had discussed having someone else come into the Road Safety Unit (or outsource to outside service providers) to help organise the other programs that were not operating at that time because it was difficult for her and Mr Burton to do all those programs together;
(f) agreed that Mr Gerada's perspective was to bring additional resources from within the Council into the Road Safety Unit, that he had spoken of a planned expansion, and that he said he would look into expanding the Unit;
(g) agreed that there had to be some investigation as to whether further budgetary resources would be provided, and that Mr Pincott (rather than Mrs Burton) had control over the budget to be allocated for the Road Safety Unit.
Mrs Burton agreed that approval of funding for road safety initiatives was subject to the Council's endorsement of the program, and that was not something within Mr Gerada's control, although he could support (or not support) a recommendation.
Mr Gerada's first meeting with Mr and Mrs Burton
Mrs Burton's evidence: According to Mrs Burton, she and Mr Burton met with Mr Gerada soon after his appointment. Mr Gerada asked "Who was the idiot who put you together?" because they are married, and said that there needed to be changes because it was not right for them to be working together. Mrs Burton said that she found Mr Gerada's manner "very aggressive towards us." She could not understand the reason for that because, in her view:
"our work was successful. We were making real change. We were working together. There weren't any problems that I could see, so I was quite surprised. In fact, I was put aback a bit as to why he should say that to us."[4]
[4] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 30 January 2014) 17.
Mrs Burton also said that at that meeting Mr Gerada "threatened to move Ian out to the traffic engineering work that he had previously been doing before he came to join me in the road safety unit."[5]
[5] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 30 January 2014) 17.
When cross-examined in relation to this meeting, Mrs Burton was unable to recall the purpose of the meeting or whether the statement about her and Mr Burton working together might have been made at the meeting that included Mr Pincott.
Mr Gerada's evidence: Mr Gerada did not recall having that meeting, and denied making a comment to the effect "Who was the idiot that put you two together, as you are married?" He said that he knew of the structure before taking on the role of acting Manager. He had a lot of respect for Mr Bilton, who had approved the structure, and would not describe him as an idiot.
Mr Burton's evidence: Mr Burton stated that he and Mrs Burton met with Mr Gerada and discussed what they were trying to achieve in road safety. The meeting went for about 45 minutes to one hour. At the start of the meeting, Mr Gerada asked "Who's the idiot who put you together?" Mr Burton understood Mr Gerada to be inferring that they should not be working together because they are married. That matter was not discussed any more at that time, but Mr and Mrs Burton apparently "just both looked at each other with a bit of shock" because they "classed [them]selves as having a professional relationship at work."
Mr Quilliam's evidence: Mr Quilliam said that at no time in the period from September 2010 until May 2012 did he hear Mr Gerada make any adverse comment about Mr and Mrs Burton working together as a married couple.
Mr Pincott's evidence: Mr Pincott did not recall Mr Gerada saying to him or in his hearing anything critical or adverse about Mr and Mrs Burton working together.
Meeting between Mr Gerada, Mr and Mrs Burton and Mr Pincott
Mr Gerada's evidence: Mr Gerada gave evidence that he met with Mr and Mrs Burton and Mr Pincott within weeks after his first individual meeting with Mrs Burton. The purpose of the meeting was to work out ways in which resources could be reallocated to assist with the expansion that Mrs Burton had suggested. There was suggestion that an officer at Level 4, Mark Dileo, could assist with some of the initiatives and be available to the Burtons if they were busy. That work could have included responding to comments and deleting inappropriate comments on the Facebook page connected with the SMART program (an aspect of that program that had been created on the premise that it would not take much time). So far as Mr Gerada was aware, Mr Dileo had no experience in relation to road safety. Initially Mr Dileo could transition into the Unit under the guidance of Mr Burton. However, in order to add value, he would need to have some exposure to the road safety research and initiatives that Mrs Burton was overseeing. Mr Gerada saw that there was no backfill option when Mr and Mrs Burton were either ill or on any sort of leave. It was suggested that the person would come out of Mr Pincott's area and would keep the initiatives going (e.g. by dealing with telephone calls and other enquiries) while Mr and Mrs Burton were on leave. Mr Pincott supported extra resources being provided to the Road Safety Unit.
According to Mr Gerada, it would be untrue to suggest that he and Mr Pincott became agitated or aggressive during that meeting. Rather, the discussion was centred on explaining to Mr and Mrs Burton how Mr Gerada and Mr Pincott could assist with expanding the Road Safety Unit. He recalled that they explained that simply approaching corporate for a brand-new resource was unlikely to be approved, but that bringing someone from within the Branch (and offering that person an opportunity to expand their skills in the realm of road safety, and providing Mr and Mrs Burton with assistance with their lower level work and backfilling while they were away) was "the way to go."
Mrs Burton "wasn't happy with that suggestion at all." She mentioned that training Mr Dileo, and Mr Gerada making her train somebody, could potentially lead to stress on her part. She said words to the effect that, "I've been there, done that. I'm not doing that again." According to Mr Gerada, Mrs Burton knew Mr Dileo. She did not express a preference for another person.
Mr Gerada said that, although Mrs Burton told him that she had no training qualifications, he knew that she had trained two other people. However, given the reaction he received from Mr and Mrs Burton, the proposal to provide extra resourcing to the Road Safety Unit was put on hold.
Mr Gerada did not recall a proposal being put by him or Mr Pincott that Mr Burton be transferred permanently from the road safety role back to a TEO position.
Mrs Burton's evidence: In her evidence in chief, Mrs Burton recalled her second meeting with Mr Gerada, at which Mr Pincott and Mr Burton were also present. She said that the meeting was about the "transfer or suggestion of transfer" of Mr Burton from the Road Safety Unit back to his traffic engineering work, and for Mrs Burton to train another officer in the branch, Mark Dileo, to become a road safety officer and work with her. According to Mrs Burton, both Mr Pincott and Mr Gerada were "quite agitated." She said to Mr Gerada that she did not have the time to train somebody new and keep up with corporate expectations that she needed to address and also the running of road safety initiatives. She said that she was "quite stressed about the thought of taking someone new" who had no road safety experience. She felt that to take on the task of training somebody to do quality research for her "would be very daunting and very time-consuming." Mrs Burton gave evidence that she is not a trainer, and has not been trained to be a trainer. She could show people what to do (as she had done with two other people previously when training them in operating a road safety initiative), but she had not trained people in doing research and applying that research to the production of road safety initiatives. Her submission was "basically rejected" and there was talk of further discussion about this later on.
When cross-examined in relation to this meeting, Mrs Burton agreed that the meeting was a follow-up from the one-on-one meeting she had with Mr Gerada where there had been a discussion about the expansion of the Road Safety Unit. She disagreed, however with the suggestion that the purpose of the meeting was for Mr Gerada and Mr Pincott to propose (at least on a temporary basis initially) providing an additional resource from the traffic engineering unit to the Road Safety Unit. In particular, the proposal was that a Level 4 employee would be under Mr Burton (who was at Level 5) while Mrs Burton was at Level 7. Rather, she insisted that Mr Gerada wanted to move Mr Burton back into his previous position because they were short of TEOs and put the Level 4 position in the Road Safety Unit. Mrs Burton said that she "was resistant to losing a resource that knew what he was doing at that time, in the face of having to train someone new from scratch, and not have that resource working with me at all." Although she had trained two previous project officers, Mrs Burton said that (given the nature and extent of her work in the period after the SMART program concluded in September) she did not have the time to provide training to Mr Dileo, and she "made that very clear to them both in the meeting."
Mrs Burton also disagreed that Mr Pincott was trying to get her to accept the proposal for the extra resource being provided, and he did not say, in effect, that:
(a) if she had the extra resource, the other road safety initiatives that were shelved at that time or other things that she wanted to develop could be worked on; and
(b) having the additional person working in a temporary role would give force or strength to the request for an additional person to be appointed in a full-time capacity.
According to Mrs Burton's evidence in chief, "things became very strained" after that meeting, but the Burtons continued with their work because they were quite busy (it was "full on") and they did not have a choice. Mr Gerada wanted to know "further information about many and various" matters, and that was "like a constant update all the time."
Mr Burton's evidence: Mr Burton recalled a meeting involving himself and Mrs Burton, Mr Gerada and Mr Pincott. According to Mr Burton, Mr Gerada and Mr Pincott "were both just inferring that we should train somebody else in this section … to take over the job" and they wanted him, or he and Mrs Burton, to "train somebody else to take over the job." They also wanted to move Mr Burton "back out into traffic engineering." At least that was "the inference they gave" Mr Burton. Mr Pincott said that Mr Burton would "still be doing SMART," which Mr Burton understood to mean that he would be moving but would still be doing the road safety initiative that he and Mrs Burton had put together. Mr Burton also understood that Mark Dileo would be coming into the Road Safety Unit because Mr Pincott asked Mr Burton to take Mr Dileo out and show him what Mr Burton was doing (including by letting him hold the end of the tape). The matter was left there, although Mr and Mrs Burton were not happy about it. They then saw Mr Crutch, the union representative, and explained what had happened. (That conversation is considered below).
In cross-examination, Mr Burton disagreed with the proposition that the proposal put at that meeting (at least initially on a temporary basis) was for an additional staff member to be provided to the Road Safety Unit and trained. Rather, he said he concluded from "quite clear" comments provided by Mr Pincott that someone would come into the Road Safety Unit to replace him. He characterised the proposal about the additional resource for the Unit being trained as a poorly or underhanded way of having him removed.
Mr Burton did not recall Mr Pincott encouraging them to accept the offer of the additional resource as a way of providing them with an opportunity to develop road safety the initiatives that were shelved or had not been developed, and as a means of helping to build a case for an additional permanent position in the Road Safety Unit.
Mr Burton agreed that he remained in his role as the Project Officer - Road Safety from September 2010, throughout the period when Mrs Burton went on sick leave and after she returned to work in about March 2013 until his employment with the Council ended. Indeed he agreed that they were both still working together even though the Unit was transferred to another section of the Council in March 2013. At no time was he required to return to the traffic engineering section to back-fill a position.
In cross-examination, Mr Burton agreed that he and Mrs Burton had spoken about expanding the Unit and possibly that she had aspirations of being promoted to a coordinator level. However, he was unaware about whether Mrs Burton had spoken separately to Mr Gerada about that matter not long after he commenced as acting Manager.
Mr Pincott's evidence: Mr Pincott recalled attending a meeting in 2010 with Mr Gerada and Mr and Mrs Burton about resourcing for the Road Safety Unit. Although Mrs Burton had initiatives to be done or that were ongoing (e.g. the speed awareness trailer program), the Unit had only sufficient resources to do one major initiative. According to Mr Pincott, they discussed obtaining an additional person on a temporary basis to assist them to get other initiatives going again, but Mrs Burton objected on the basis that she could not get the right person to do the role. On that occasion, Mr Pincott tried to convince her that if she took on a temporary person, the initiative would be able to recommence and that would give some substance to a request for another permanent position. Mrs Burton could be involved in the selection process in relation to the permanent appointees. Mr and Mrs Burton did not agree to the extra resource being provided because it (possibly another TEO from the office) would not be the right person. Mr Pincott did not recall any discussion about training a new person, but said that the extra resource was not provided. Nor did he recall that he or Mr Gerada became hostile or agitated.
In cross-examination, Mr Pincott agreed that Mark Delio was nominated to be the additional resource and that Mrs Burton objected on the basis that she felt he did not have the correct road safety training.
Mr Pincott did not recall that he or Mr Gerada were adamant that Mr Burton must be returned on a permanent basis to the TEO role. On a later occasion, Mr Gerada suggested that Mr Burton might be required to backfill a position in Mr Pincott's group on a temporary basis, but that did not occur. Mr Gerada discussed with Mr Pincott the possibility of Mr Burton backfilling in his section if required, but Mr Pincott did not know whether the matter was raised with Mr Burton. Mr Pincott agreed that it was a "live matter" but that was "the same with the rest of the office."
Meeting of Mrs Burton and Mr Crutch
Peter Crutch is Executive Coordinator, Minor Projects, in the Design Section of Engineering Services at the Council, and works in the same building (but on a different floor) as where Mr and Mrs Burton worked. Although his unit had some contact with the traffic unit, he had no work-related involvement with Mr and Mrs Burton.
Mr Crutch is also President of the Services Union local committee. In that role, he has dealt with many people over many years in relation to a wide range of small issues. He has trained himself not to take notes, and to try to forget the issue as soon as he can. If an issue cannot be solved after he has made a suggestion in relation to the appropriate procedure or policy, he will pass it on to the Union. He described himself as "just a conduit, … a conduit of common sense."
Mrs Burton's evidence: Mrs Burton went to see Mr Crutch in September 2010, after the meeting with Mr Gerada and Mr Pincott. According to her evidence, she went through what had happened to make him aware that Mr Gerada did not like Mr Burton and her working together and that Mr Gerada had made comments that things would have to change. She also told Mr Crutch about the meeting with Mr Gerada and Mr Pincott and that "they were looking like that they were possibly wanting to move my husband away from … doing road safety work." Mrs Burton asked Mr Crutch whether there was anything she needed to do or could do about the situation, or how she could make some changes so that it would be "more plausible and pleasant to work there under Mr Gerada."
Mr Crutch's evidence: Mr Crutch gave evidence that, in about September 2010, Mrs Burton raised with him a perception at the time of a new Manager about whether being husband and wife would affect the work of her and Mr Burton. He apparently asked whether she had been able to speak to the Manager, and she said they had tried but the issue was not resolved. He also asked whether she had tried to keep a spreadsheet to show the work they do, and Mrs Burton advised that they had tried that.
He said that he could not work out whether the issue about them being husband and wife was "reality" or was "just a perception" in the sense that "it's just in their minds that they were thinking that it was getting picked on."
Perceptions that Mr and Mrs Burton were isolating themselves from fellow employees
There was some discussion about the level of communication between members of the Road Safety Unit and others in the Branch. Mr Gerada raised with Mrs Burton that she and Mr Burton were too busy and were, in effect, isolating themselves from those others.
Mr Gerada's evidence: Mr Gerada said he had received feedback from one of the senior officers in the Branch that, when the Road Safety Unit was asked to provide support in relation to road safety issues in and around schools, "the barriers go up" as Mr and Mrs Burton would say they were too busy with the SMART program or whatever other program they were working on. Mr Gerada had mentioned to Mrs Burton that they needed to be available to support other staff. He recalled that she appeared surprised but took note of it. In that context, he recalled saying to Mrs Burton, in effect, that he thought she and Mr Burton were unapproachable to the rest of the Branch. He suggested that she might like to change her attitude and talk to Mr Burton about his attitude, so that they would be more approachable to the rest of the Branch if others wanted to ask the Burtons questions or work with them. He did not give her any guidance about how to do that.
Mr Gerada said that subsequently Mrs Burton said to him that she was offended by his comment about Mr and Mrs Burton being unapproachable. She told him that she met with the coordinators of the various sections and received feedback that there was no issue. However Mr Gerada said he knew that the issues were not raised by coordinators but by officers at a much lower level (e.g. the TEOs) who were requesting assistance from the Burtons.
Mr Gerada had observed that Mr and Mrs Burton "kept very much to themselves." There was a custom in the Branch of celebrating significant birthdays and such events with morning teas, and Mr and Mrs Burton "rarely wanted to be involved in that." He gave one example where they participated in a very successful social event at work, but noted that on other occasions he would be told that they were on site, or on leave or not present. He said that he did not know whether that was "just coincidental."
Mr Gerada referred to times when Mrs Burton would not talk to him or acknowledge him, and she would not come into his office for the kind of discussions he had with all the coordinators. Sometimes weeks would pass with no discussion between him and Mrs Burton. He had feedback that that she did not communicate with other staff members in the Branch, even when making a cup of tea. At that stage (in April 2012, see Exhibit 10), he decided to change their meetings from monthly to fortnightly so that he could keep up-to-date. He felt that frequency was needed to ensure that the lines of communication were clear in relation to how Mrs Burton communicate with him, and he with his director.
Mrs Burton's evidence: According to Mrs Burton, Mr Gerada said to her that they were not communicating with, or making themselves available to, the other TEOs if they wanted to ask questions relating to road safety. Mrs Burton told him that she did not see that that was the case. Mr Gerada said that she might like to change her attitude and she might like to talk to Mr Burton about changing his attitude about being more available. She was also told that it was perceived that they could not fit into the planned backfilling because they were so busy. (Mrs Burton said that Mr Gerada had told her that people within the Branch would all backfill for each other, and that he did not want "silos" within the Council. She understood that each of the TEOs would take on the work of another person who was away. She did not understand how that was going to work and, in particular, how she and Mr Burton were going to do their job and the work of somebody else).
Mrs Burton said that she had been told that complaints were coming from lower level staff, and she "felt compelled" to ask the coordinators of the other sections about this issue. She spoke with John McIntyre and Greg Smith outside the office. She asked whether they had an issue with Mr Burton and her not being available and said that, if so, she wanted to work out a way to make it easier for them to communicate. Each of the coordinators told her they did not have a problem and that none of their staff had told them there was a problem with the Burtons. Mrs Burton spoke separately with Mr Pincott and Mr Quilliam about whether they felt that the Burtons were isolating themselves.
In cross-examination, Mrs Burton disagreed that she and Mr Burton had increasingly been withdrawing from other members of the Branch. She conceded that on a number of occasions they did not attend morning teas, but explained that they had to attend issues that arose out of the SMART program and hence were not always available to attend morning teas. But, she said, "We attended most of them. In fact, we hosted some of the morning teas as well." Mrs Burton would buy morning tea and bring it in as a token for missing a morning tea.
Mr Quilliam's evidence: Mr Quilliam's workstation in the open plan office was close to where Mr and Mrs Burton worked. Although he often worked away from the office, he observed that Mr and Mrs Burton did not interact very well with other staff and "seemed to segregate themselves." Mr Quilliam said that he got on quite well with both of them, but observed that often they would not attend morning teas in the office and sometimes others would not attend their morning teas.
Mr Pincott's evidence: Mr Pincott had relatively infrequent interactions with Mr and Mrs Burton in his role. Mrs Burton only reported to him in relation to budgetary information, but they also had a system that Mr and Mrs Burton would review road safety issues at schools. Mrs Burton would assist in aspects of negotiations with schools. She might interact with Mr Pincott's team once a month or once every three months. She was, however, one of the people who would seek his help in relation to traffic engineering issues. He had a good interactive relationship with her, and agreed that she was conscientious and diligent.
Mr Pincott noticed that, from at least 2010, the Burtons appeared to have less time available to interact when they were involved in one of their major initiatives, the SMART program with motor cycle training.
Mr Pincott said that somebody within his team had expressed some concerns about the availability of Mr and Mrs Burton to assist TEOs with the investigation of school matters. Eventually, Mr and Mrs Burton were so involved with their major road safety project that they did not have time to assist in the way they had done previously.
According to Mr Pincott, Mrs Burton asked whether he had any difficulties dealing with her in work matters. He responded that he did not have a problem.
Perceptions that Mr Burton might be transferred or the Road Safety Unit relocated
As is apparent from the evidence summarised earlier, from an early stage in Mr Gerada's term as acting Manager, Mr and Mrs Burton concluded that there was at least a possibility that Mr Burton would be transferred from the Unit, probably to be a TEO. However, in the period from September 2010 to 16 May 2012, Mr Gerada did not:
(a) move Mr Burton out of the road safety role; or
(b) move or transfer the Road Safety Unit to another director or section of the Council.
Those facts do not, on their own, rebut a perception held by Mr or Mrs Burton (or both of them) that either or both of those management actions might be taken. It is necessary to consider the evidence about whether and why they had that perception.
Mrs Burton's evidence: Mrs Burton gave evidence that, at his first meeting with her and Mr Burton, Mr Gerada threatened to move Mr Burton out of the Unit to do TEO work. The transfer or suggestion of transfer was also raised in the meeting of those three people and Mr Pincott.
Also, according to Mrs Burton, Mr Gerada told her "a few times" that they might have to move to the Transport Branch. She did not recall him saying that it was his view that the Road Safety Unit belonged within the Traffic Management and Operations area.
The Appellant points out that, despite the evidence that Mr and Mrs Burton were concerned that Mr Burton would be transferred out of the Road Safety Unit, Mr Burton remained as the Project Officer in that Unit at all times during the 20 months from September 2010 until May 2012. He was not ever required to backfill as a TEO. Although Mrs Burton acknowledged that to be the case, she stated that:
(a) every time she had a meeting with Mr Gerada he would make some sort of statement that they would have to be moved or have somebody else come in;
(b) it was Mr Gerada's prerogative to take his time about making those changes.
Later in cross-examination, Mrs Burton could not recall any meeting other than their initial meeting with Mr Gerada and Mr Pincott, when Mr Gerada said that Mr Burton would have to return to TEO work. However, she did not concede that by late 2011 she and Mr Burton would have felt fairly secure as that had not occurred, because she "didn't know what Mr Gerada's intentions were."
Mrs Burton gave evidence that Mr Gerada told her that she "would perhaps have to move to another section" and, although he did not know which section that might be, he gave some examples. In her view it was "all very uncertain" and she would ask him to where they would find an outcome and when it was going to happen. He would say that he did not know what the future holds, she would say they could discuss this further, and he would end the meeting.
Mrs Burton said that, from about the end of 2011, she thought the road safety team was going to be dismantled because "it was constantly suggested that either Ian move away or that I would be transferred." It was made clear to her that, because Mr Burton had done traffic engineering work, there were some vacant spaces, and there was workload there, Mr Gerada wanted him to return to that work. That "just made me feel that we were on a slippery slope."
As noted earlier, Mr Burton inferred from what was said at the meeting of him, Mrs Burton, Mr Gerada and Mr Pincott that he and Mrs Burton were to train someone to take over his job and that management wanted to move him out of the Unit.
Mr Gerada's evidence: Mr Gerada said that in the period from September 2010 to May 2012 there was never a proposal from him or senior management for Mr Burton to be transferred permanently back to TEO work. Mr Gerada:
(a) gave evidence that (for that period) he was not aware of a proposal that the Road Safety Unit be transferred to the Active Travel section at Nerang (which was managed by the then Transport Planning Branch of another director), so it was unlikely that he would have said that to Mrs Burton in one of their meetings;
(b) denied ever referring, in those meetings to them possibly having to move to the Active Travel or being transferred from the Branch to another directorate; and
(c) did not recall indicating to Mrs Burton that there were going to be changes to the Road Safety Unit.
Mr Gerada did not recall saying to Mrs Burton that she would need to stop doing road safety and transfer back to TEO work because he wanted everyone in the Branch to be able to backfill when someone was away and interchange positions where necessary. There was, however, some discussion about Mr Burton backfilling (but not on a permanent basis) in a TEO role. That discussion was initially between Mr Gerada and Mrs Burton and centred around backfilling TEO roles when they were on leave or numbers were down for some reason. Mr Gerada said that they were all working as a team, and he did not subscribe to "silos." Accordingly, the Road Safety Unit had to be available to the rest of the Branch. He wanted to allocate staff to the areas most in need. His "vague recollection was that Mrs Burton asked why, if the leave had been approved, it had to impact on them. Mr Gerada emphasised that there was never a suggestion by him to Mrs Burton that Mr Burton would go back to the role permanently. Mr Burton had a position description that identified him as a Road Safety Project Officer and that was his role.
Mr Gerada was asked how he responded if, in the course of meetings, question arose about the Road Safety Unit or Mr Burton being transferred. He replied:
"There was lots of corporate change occurring and did eventually occur and if there was any question asked of me at the time, which I don't recall the detail of - but if there was any question at the time as to what might happen to engineering, what might happen to - to traffic branch, what might happen to the various sections, certainly I would say words to the effect that if the structure came into being where I had to defend, particularly road safety because its operational, then I would."[6]
[6] Transcript of Proceedings, Gold Coast City Council v Simon Blackwood (Workers' Compensation Regulator) (Queensland Industrial Relations Commission, WC/2013/229, Industrial Commissioner Neate, 28 January 2014) 50.
Mr Pincott's evidence: Mr Burton had been a TEO under Mr Pincott's supervision before he transferred to the Road Safety Unit prior to the arrival of Mr Gerada. Mr Pincott was not aware of any proposal for Mr Burton to move back to a TEO role on a permanent basis. Had there been such a proposal, he would expect to have known about it.
Mr Quilliam's evidence: Mr Quilliam said that he was neither involved in nor overheard any conversation in which Mr Gerada expressed a view that he wanted to close down the Road Safety Unit, remove the role of Mr and Mrs Burton, or that he wanted to transfer the Unit to another area of Council. He did not hear Mr Gerada express a view about wanting to transfer Mr Burton permanently back as a TEO away from the Unit. Rather, he recalled a conversation about Mr and Mrs Burton being taken to another section, and he understood that Mr Gerada was fighting to keep them there.
Mr Gerada's monthly meetings
Mr Gerada's evidence: Mr Gerada described the purpose of his regular monthly meetings with coordinators and Mrs Burton as a team leader. Initially they were joint meetings. He said that the meetings were for the coordinators to discuss with him issues they were having from an HR perspective (e.g. staff, resource in, leave, training, workplace health and safety issues) and they would discuss budget matters (e.g. progress of expenditure, and what needed to be listed as potential items for future years). Meetings would last for approximately an hour to an hour and a half.
After a few weeks, he changed to monthly individual catch-up meetings on the basis that it was an inappropriate use of a section leader's or a coordinator's time to be present for discussions about particular issues that did not affect their unit. He was able to obtain information from each coordinator or team leader and could provide them individually with "a download of what was happening in the corporate arena."
Mr Gerada said that meeting reminder messages (see e.g. Exhibit 10) would be sent a few days, or a week or two, before the scheduled meeting.
Although there were regular monthly meetings, Mr Gerada said that he did not want the coordinators or section leader to wait for those meetings to catch up to tell him about issues that they needed assistance with or support for. According to Mr Gerada, his door "was always open." The coordinators (Mr King, Mr Quilliam and Mr Pincott) took that approach and would walk into his office for a discussion. As a consequence, the catch-up meetings with those coordinators did not always take the allocated time. They were not required to prepare documents for meetings as they provided most of what Mr Gerada needed at the meetings and whatever they did not provide at meetings they would give him in his office intermittently through the week. Mrs Burton did not often take that opportunity to raise matters with him outside the monthly meeting. Mr Gerada said that he assumed that the projects and work that Mr and Mrs Burton were working on did not require his input, or that she was comfortable with the requests that had been made of her, and that the initiatives were progressing satisfactorily.
The issues that Mr Gerada and Mrs Burton would discuss at their monthly meetings varied. They included the initiatives that were funded at that time, particularly the SMART program which was "quite dominant in both their … daily working lives." The challenges in relation to that program included promoting it, and getting participation to a level that could justify continued funding. Quarterly and annual reporting about usage of the program was required. Mrs Burton would suggest avenues to promote the SMART program and the logistics involved, and Mr Gerada said that he would support those suggestions. On one occasion, he asked if they wanted additional resources for a proposed presentation at a convention, and they said no.
Mr Gerada kept handwritten notes of matters discussed in his meetings with Mrs Burton. Copies of the notes of meetings between 9 March 2011 and 2 April 2012 were in evidence (see Exhibit 9). He agreed that these meetings were amicable, and said that sometimes they would laugh. The meetings "weren't all serious."
Mr Gerada said that he did not ever speak to Mrs Burton in a threatening or tormenting way during one of their meetings. Rather, they would often sit beside each other at a table and talk through the issues. He would ask lots of detailed questions, some of which he sent by email. When he received short answers he would often "dig deeper... to get the detail."
Mr Gerada gave evidence that, in relation to the Hands Up for Road Safety school initiative that had been dormant for five years, he had a conversation with a new manager from another unit at the Council who was looking to develop a character to promote safe practices at schools and who was able to fund it. Mr Gerada knew that Mrs Burton had significant input into the establishment of the program. He rang to tell her that Zero the Hero was "going to be back on" and they had funding for it. He recalled that Mrs Burton took that news "on a positive note" but expressed the view that she would believe it when she saw it. Subsequently there were meetings involving Mrs Burton (but not Mr Gerada) with the Active Travel group (in the Transport Planning area) so that she could provide support to them to "re-enliven this program." According to Mr Gerada, Mrs Burton initially supported the program going over and her having a consultant's role, but she felt that the team did not understand the program in the way that she did. The feedback that he received was that Mrs Burton wanted to "hand it over and be done with it" and not continue to be involved.
Mrs Burton's evidence: Mrs Burton gave evidence that she had monthly meetings with Mr Gerada to discuss budget matters, bookings for the SMART program, plans for the rollout of another program and other matters in relation to the work of the Road Safety Unit. Mrs Burton knew what information to bring to these meetings because Mr Gerada would send her an email outlining what he required. Because she discussed some of the topics (e.g. emerging issues) with Mr Gerada as they arose, he would have an outline of those issues before the meeting. Otherwise, Mrs Burton "tried my best to negotiate my way through what he required." She described the amount of information she was required to provide for these meetings as "quite extensive." It included reports for the SMART rides program (which involved collating feedback sheets from about 50 riders each weekend) and budget information (which she would check with Mr Pincott and others). The material had to be put together while dealing with the day-to-day operations, including taking phone calls and managing bookings and cancellations. Mrs Burton estimated that it would take her about two and a half working days to prepare for meetings. Some of that work was done at home outside working hours (at least one night a week and either a Saturday or a Sunday on the alternative weekends from March to September when the program was not running).
The monthly meetings lasted a couple of hours. In late April 2012 their frequency was increased to fortnightly for one and a half to two hours (Exhibit 10). Although catch up meetings were sometimes cancelled or rescheduled, Mrs Burton usually had notice of them one and a half weeks before each meeting (see Exhibits 10 and 11).
Mr Gerada sent electronic meeting requests which included the issues that he wanted to address in each meeting including any additional information to be provided. An example was the meeting request for 27 April 2012 (Exhibit 10), which also advised Mrs Burton that the frequency of the meetings would be fortnightly, beginning the following week. Mrs Burton was asked to bring a copy of the following to leave with Mr Gerada:
(a) a summary of the status (financial and progress) of all projects being undertaken by Mr and Mrs Burton. "We will go through these as a standard item at each meeting."
(b) Details of proposed overtime
(c) Speed trailer bookings/plan for utilisation
(d) SMART reports for 2012 SMART rides completed i.e. March and April.
The following topics were listed for discussion at the next meeting:
(a) acceptable lines of communication from the Road Safety Unit
(b) status of support for Active Travel who in road safety is doing what in this space
(c) notification expectations for change to start and finish times for Mr and or Mrs Burton
(d) emerging issues
(e) annual leave
(f) interaction of the RSU with remainder of TMO
(g) Road Safety Audit Refresher Course attended by Mr and Mrs Burton March last year - utilisation
(h) Excel training feedback how is it being implemented in RSU.
[100]As it happened, that meeting did not occur because Mrs Burton was on sick leave (the reason for which is discussed later). A scheduled meeting on 2 May 2012 was cancelled. There was a follow-up request for a meeting on 15 May 2012 with the same documents (with the addition of Status of Road Safety Strategy and program for delivery) and the same agenda items (with the addition of notification of banked Rostered Days Off) as listed in the meeting request for 27 April 2012 (Exhibit 11).
[101]In cross-examination, Mrs Burton agreed that there was no other documented meeting request that she could identify that contained an unreasonable request. She said that was because the requests "weren't always in-depth like this" and some of the requests would be made at the meeting for information to be provided at the next meeting. She agreed that Mr Gerada did not request her to prepare a Gantt chart, but that she did so at the suggestion of Mr Crutch.
[102]Mrs Burton gave an example of Mr Gerada asking her to provide feedback on complex matters within a short period of time. She said he required information in relation to a parliamentary report about the effects of speed cameras in Queensland the next day. In particular, he wanted feedback about the report and how it would affect the Gold Coast if it was implemented there. Mrs Burton said that doing research about whether the city would participate in such a scheme and providing professional advice was not a "five-minute job."
[103]Mrs Burton explained that the Hands Up for Road Safety program was given to the Manager for Transport to run under Active Travel. Mrs Burton had developed it over a period of 12 months. Activity books for children and workbooks for teachers were prepared and it was delivered to approximately 30 schools in the years that the program was running. Mrs Burton was told that the program "was gone." She was concerned about its transfer because the program was crafted around specific messages for children at various stages from five years of age and to year seven. Those messages had to be given in a specific way, otherwise children would not understand them. She was concerned that perhaps these messages may have been watered down and their effectiveness compromised. However, she accepted that it was a Council program (not her program) and that it was for the Council to decide who received funding to run it.
[335]In relation to the meeting on 16 May 2012, the Respondent submits that (at least in the latter part of the meeting) Mr Gerada's voice was abrupt, aggravated, and becoming louder. He became more assertive when he said it was his turn to talk, and his manner in the meeting was non-compassionate and defensive. After the meeting, Mr Gerada did not say goodbye or even look at Mrs Burton despite the fact that she was still upset. In the Respondent's submission, the way in which Mr Gerada treated Mrs Burton on 16 May 2012 was contrary to human decency, let alone reasonable management action conducted in a reasonable way toward an employee.
[336]The Respondent also criticises aspects of Mr Shirley's actions, particularly:
(a) for not asking Mrs Burton whether she felt comfortable talking to Mr Gerada about the issues she raised on 10 May 2012, or why she had not addressed the issues with Mr Gerada, despite the fact that she was approaching Mr Shirley in his capacity in People and Culture about concerns that Mr Gerada was treating her unfairly; and
(b) his suggestion that after that meeting, and despite receiving an email from Mr Gerada advising that Mrs Burton had collapsed after a meeting with him on 16 May 2012, he had no role in ensuring some further action was taken.
[337]In the Respondent's submission, there was a culture and attitude within at least part of the Council which is relevant to Mrs Burton's claim and to her feeling of being unsupported and helpless.
[338]The Respondent also relies on medical evidence which suggests that it was the comments made on 16 May 2012 which resulted in Mrs Burton's decompensation, and that the other matters were a very important background of insidious eroding of security, confidence and respect for a mature, long-term, professional employee in her fifties with professional qualifications who had been a diligent worker and award-winner for the Council.
[339]There is some medical opinion evidence that Mrs Burton's condition was caused not so much by management action as by the manner in which that action was delivered. For example, Mr Daniel formed the impression from discussions with Mrs Burton that her psychological injury was not necessarily due to the content of management decision-making or action but may have been due to "the aggressive manner in which that information was delivered to her" by Mr Gerada, and that it was not Mr Gerada's enquiries about her ankle recovery that increased her anxiety but rather it may have been "the abrasive manner" in which Mr Gerada dealt with the issue.
[340]That opinion evidence can only be given a significant weight if it is based on a sound and admissible evidentiary basis. If, for example, the history given to a doctor by a patient is incorrect then any opinion which relies on that history must be discounted if not discarded.[38]
[38] See e.g. R v Turner [1975] QB 834, 840 (Lawton LJ); Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J).
[341]The Appellant submits that Mrs Burton appears to have given an incomplete version of her medical history to Dr Whittington and Mr Daniels, and that Dr Whittington was not provided with a history regarding the 16 May 2012 meeting. The Appellant also submits that Mr Daniels and Dr Whittington were provided with a highly embellished version of events at the workplace, and that some of the history she recounted arose from a fundamental misunderstanding and misperception of the relevant events. Accordingly, the Appellant submits that only limited weight can be placed on their reports and their evidence.
[342]In relation to Mr Gerada's behaviour as a manager, the Appellant submits that:
(a) although Mr Gerada held his discussion with Mr Burton on 3 May 2012 in an open office setting, the discussion was held in a normal conversational tone, was of very short duration, and Mr Gerada did not otherwise behave aggressively or inappropriately;
(b) Mr Gerada's conduct in the second part of the meeting with Mrs Burton and Ms Cook on 16 May 2012 amounted to reasonable management action taken in a reasonable way given that:
i.he had not been kept informed about Mrs Burton's ankle injury (a matter that is not in dispute and for which Ms Cook apologised);
ii.he was not given notice that Mrs Burton was going to raise her concerns about his meeting with Mr Burton on 3 May 2012 (a matter she had not raised with him after her return to work on 9 May 2012);
iii.he listened to Mrs Burton and waited until he thought she had finished before asking for his chance to speak; and
iv.although he raised his hand and his voice, he did not shout but was responding to Mrs Burton interrupting him and speaking over him while he was responding to her allegation.
[343]As noted earlier, Mr Gerada conceded that he could have handled the situation on 3 May 2012 differently, perhaps by asking Mr Burton to come into his office to have the discussion.
[344]The Appellant also submits that:
(a) while Mr Gerada's conduct might not have been perfect during the second part of the meeting, reasonableness rather than perfection is the standard for s 32(5) to operate; and
(b) the fact that Mrs Burton became upset and ultimately decompensated following that meeting does not detract from the reasonableness of Mr Gerada's actions or corroborate her perception that he behaved unreasonably.
[345]The evidence, including evidence given by Mr Gerada, demonstrates that he was not the most sympathetic or empathetic of managers. His management focus was on the delivery of programs and ensuring appropriate resources were available for them (in his Branch or elsewhere). He was outcomes oriented and, by his own admission, was not familiar with the detail of the Council's rehabilitation and return to work policies. He assumed that if he needed to know something in this area, the relevant person would provide guidance. In the period when:
(a) he was not being informed, as he was entitled to be, about Mrs Burton's workers' compensation claim; and
(b) when her work was uninterrupted by her ankle injury and its treatment,
he proceeded in relative (though not complete) ignorance of her circumstances. His reactions following messages which gave him an incomplete picture of stages of her progress were understandable if not entirely appropriate. Again by his own admission, Mr Gerada could have done some things differently or more appropriately.
[346]Mr Gerada's occasional flippant or ill-considered utterances, and the understandable imprecision of his answers to Mrs Burton's enquiries about her Unit's future in the context of ongoing organisational change, appear to have provided at least some of the basis for her increasing sense of apprehension and uncertainty. His stated inability to recall the content of some significant discussions, including what he said to Mrs Burton, detracted from the weight to be given to some of his evidence.
[347]That assessment of Mr Gerada as a manager, however, falls far short of leading to a finding in favour of the Respondent's submissions which, on the evidence before the Commission, appear overstated.
[348]As noted earlier, the task of the Commission when applying s 32(5) of the Act does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. The Commission's proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way. Sometimes that may involve considerations of what else might have been done, but that will only be relevant to whether what was done was, in fact, reasonable.
[349]Furthermore, it appears that:
(a) by contrast with her approach in 2008, Mrs Burton did not raise allegations of workplace bullying or stress with her treating GP;
(b) when she raised matters with Mr Shirley, most if not all of them were matters which he considered reasonable management action and/or matters which it was appropriate for Mrs Burton to raise with Mr Gerada (noting that she did not indicate that she felt uncomfortable talking to Mr Gerada and she did not mention her concern about the 3 May 2012 conversation between Mr Gerada and Mr Burton); and
(c) her conversations with others such as Mr Crutch did not lead them to conclude that Mr Gerada's management style was unreasonable or cause for concern.
[350]As noted earlier in these reasons, there was other evidence about Mr Gerada's management style and how it differed from that of his predecessor, Mr Bilton. There was specific evidence from:
(a) Mr Pincott that, in the course of the meetings which he and Mrs Burton attended with Mr Gerada or in the open plan office, he did not see anything in Mr Gerada’s behaviour or conduct towards Mrs Burton that caused him concern or that he considered inappropriate or bullying – and that Mr Gerada seemed to treat Mrs Burton in the same way as he treated Mr Pincott; and
(b) Mr Quilliam that, in the course of those meetings or in the workplace, he did not see any conduct by Mr Gerada in relation to Mrs Burton or any of the other participants that caused him concern or that he thought might constitute bullying or harassment – indeed, he did not see Mr Gerada treat Mrs Burton any differently from the way he treated Mr Quilliam.
[351]Even if their evidence were to be given less weight on the basis that they were supervised by and reported directly to Mr Gerada, or that they were not present at the individual meetings between Mr Gerada and Mrs Burton or that they were away from the office for significant periods, there was also evidence from:
(a) Mr Shirley that he was unaware of any complaints made against Mr Gerada as a manager, that the matters of concern raised by Mrs Burton with him on 10 May 2012 involved appropriate action by Mr Gerada or were matters that she should discuss with him, and that he did not consider the matters raised by Mrs Burton amounted to harassment;
(b) Mr Crutch that he asked Mrs Burton what she wanted to do if she could not put up with her work situation (e.g. by involving People and Culture or the Union, or using the grievance process) and she did not ask him to pass anything to the Union;
(c) Ms Cook that, although Mrs Burton had reported that hers was a “busy job”, Mrs Burton had not reported concerns about being overworked or working excessive hours; nor had she reported that Mr Gerada was threatening her in the course of one meeting, or that he wanted to split Mr and Mrs Burton;
(d) Mrs Burton that, apart from making a complaint to Ms Cook (apparently about Mr Gerada’s conversation with Mr Burton on 3 May 2012), she did not complain about Mr Gerada’s behaviour in their meetings but “just got on with it” and thought it would “pan out” while hoping that something would change.
[352]Again, having regard to the totality of the evidence, I am satisfied that, despite some acknowledged blemishes, management action was taken in a reasonable way by the Council in connection with Mrs Burton's employment
[353]In summary, I am satisfied that:
(a) Mrs Burton's injury arose out of, or in the course of, management action;
(b) the management action was reasonable; and
(c) the management action was taken in a reasonable way.
In other words, s 32(5)(a) of the Act operates in relation to this appeal.
Mrs Burton's perception of management action
[354]Another issue was whether Mrs Burton's psychological disorder arose out of, or in the course of, her perception of reasonable management action being taken against her (i.e., whether s 32(5)(b) of the Act operates to exclude her entitlement to compensation).
[355]The Appellant submits that Mrs Burton's psychological injury is not compensable because it arose out of her perception of reasonable management action being taken against her.
[356]Given my ruling in relation to the operation of s 32(5)(a) of the Act, it is not necessary to consider those submissions.
[357]However, for completeness, I note briefly that, as will be apparent from the earlier analysis of the evidence, some of the Mrs Burton's concerns arose from her perceptions about the meaning of some actions taken and comments made by management in relation to her and Mr Burton. Some of her most significant perceptions were based on assumptions or inferences drawn from incomplete or incorrect information. When tested by reference to what had happened, or management's rationale for acting in a particular way, those perceptions were shown to be flawed or false.
Conclusion
[358]For the reasons given above I have concluded that:
(a) Mrs Burton suffered a psychological injury;
(b) the injury arose out of, and in the course of, her employment;
(c) her employment was a significant contributing factor to her injury; and
(d) Mrs Burton's injury arose out of reasonable management action taken in a reasonable way.
[359]Consequently:
(a) the appeal is allowed;
(b) the decision of the Workers' Compensation Regulator is set aside;
(c) the application for workers' compensation by Karen Ann Burton is not one for acceptance; and
(d) the Respondent is to pay the Appellant's costs of and incidental to the appeal to be agreed or, failing agreement, to be subject of a further application to the Commission.
[360]Order accordingly.
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