Graham and Ramsay Health Care Australia Pty Ltd (Compensation)
[2024] AATA 3499
•30 September 2024
Graham and Ramsay Health Care Australia Pty Ltd (Compensation) [2024] AATA 3499 (30 September 2024)
Division:GENERAL DIVISION
File Number(s): 2022/9185
Re:Wayne Graham
APPLICANT
Ramsay Health Care Australia Pty LtdAnd
RESPONDENT
DECISION
Tribunal:Member Lee Benjamin
Date:30 September 2024
Place:Brisbane
The Tribunal affirms the decision under review.
................................[SGD]........................................
Member Lee Benjamin
Catchwords
WORKERS’ COMPENSATION – Applicant claim under Safety, Rehabilitation and Compensation Act – where Applicant’s ailment in close proximity to employment related issues – whether ailment injury per subsection 7(4) – where ailment the result of reasonable administrative action – decision affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Workers’ Compensation and Rehabilitation Act 2003 (Qld)Work Health and Safety Act 2021 (Qld)
Cases
Comcare v Stewart [2019] HCA 365
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Lim v Comcare (2017) 250 FCR 298
Moradi v Comcare [2024] FCA 812
Peters v Comcare (2013) 137 ALD 375;
Gaffey v Comcare (2015) 239 FCR 76
Drenth v Comcare [2012] FCAFC 86
Hart v Comcare (2005) 145 FCR 29REASONS FOR DECISION
Member Lee Benjamin
30 September 2024
WHAT IS THIS DECISION ABOUT?
Mr Wayne Graham was previously employed by Ramsay Health Care Australia Pty Ltd (Respondent) as a Nurse Unit Manager at their Caloundra Clinic (the Clinic). There is no dispute between the parties that Mr Graham suffers from an adjustment disorder in connection with his past employment. The key question for the Tribunal is whether Mr Graham’s adjustment disorder arose as a result of reasonable administrative action taken in a reasonable manner in respect of Mr Graham’s employment with the Respondent. In my view, the answer to this question is yes. It follows that Mr Graham has not sustained an injury for the purposes of a compensation claim under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).
WHAT HAPPENED?[1]
[1] The procedural history and background information pertaining to this matter is helpfully set out in the Applicant’s Statement of Facts, Issues and Contentions (Exhibit A1, para 2-12) and the Respondent’s Statement of Facts, Issues and Contentions (Exhibit R1, para 1-16).
Mr Graham made a workers’ compensation claim with the Respondent on 26 July 2022 under the SRC Act for “Post-Traumatic Stress Disorder” (PTSD).[2]
[2] Exhibit A1, p 1, para 1. Mr Graham later conceded that the appropriate diagnosis, with regard to the evidence adduced, is for an “Adjustment Disorder”. This issue of the correct diagnosis for Mr Graham’s condition is explored in later paragraphs of these Reasons.
Mr Graham became a registered nurse in 1998 and has worked in various roles through Queensland Health and the Nurses Union.[3]
[3] Exhibit A5, p 2, para 5.
From 2018, Mr Graham was employed by the Respondent, first as a registered nurse, and then as the Nurse Unit Manager at the Caloundra Clinic.[4]
[4] Exhibit A1, p 1, para 2.
On 5 July 2020, Mr Graham was called into work to respond to an incident at the Clinic. This involved an in-patient at the Clinic attempting to commit suicide.[5] Mr Graham was one of the staff who wheeled the patient out on a stretcher. The patient was taken to hospital, where she subsequently died.[6]
[5] Exhibit A5, p 2, para 7.
[6] Exhibit A5, p 2, para 7.
Mr Graham continued his employment following this incident, and was involved with the Respondent’s investigation into the same (including viewing the CCTV footage of it).[7]
[7] Exhibit A1, p 1, para 4.
Mr Graham says that this was the “triggering event” in respect of a subsequent condition of PTSD suffered by him.[8]
[8] Exhibit A1, p 1, para 3.
On 1 December 2020, the Respondent’s coverage under the SRC Act commenced pursuant to a Notice of Grant of Licence (the Licence) dated 15 October 2020.[9]
[9] Exhibit A1, p 2, para 5.
Mr Graham contends that he “progressively developed psychological symptoms”. In late 2021, he contacted the Respondent’s Employee Assistance Program (EAP) about his issues. However, he did not attend a doctor at the time.[10] Mr Graham’s evidence was that he was “distressed by the patient’s death, by having to review the CCTV multiple times, and by what [he] considered was an inadequate or inappropriate investigation report and withholding information from the Coroner.” Despite this, Mr Graham says that he was able to continue working, with there being a gradual progression in his symptoms, with the symptoms getting worse toward late 2021 and early 2022.[11]
[10] Exhibit A1, p 2, para 6.
[11] Exhibit A5, p 2, para 8.
Mr Graham was the subject of workplace complaints during 2021.[12] Mr Graham’s evidence was that he was “trying to deal with and to address staff behaviours” and that there “were difficult staff members in the nursing team and there was a history of difficulties”.[13] Relevantly, some of the Respondent’s evidence appears to confirm Mr Graham’s characterisation of the same:[14]
(a)An HR Manager, Ms Lynch, explained that “most of the allegations [against Mr Graham] could not be substantiated”;
(b)In respect of one complaint in late 2021, all allegations were found to be unsubstantiated; and
(c)In respect of another complaint in late 2021, all but one of the allegations were found to be unsubstantiated. The substantiated allegation was very minor and the CEO (as decision-maker) in fact found that Mr Graham had been the subject of aggressive and abusive behaviour by his staff member.
[12] Exhibit A5, p 3, para 9; Exhibit A4, para 24. Mr Graham points out, in his closing submissions (Exhibit A5, footnote 12), that “[I]mportantly, none of the processes relating to those complaints has been relied on by the Respondent as “reasonable administrative action”.” The issue of “reasonable administrative action” is addressed in later paragraphs of these Reasons.
[13] Exhibit A5, p 3, para 9.
[14] Exhibit A5, p 3, para 9; Exhibit R7, para 4; Exhibit Tr2, p 64, 74.
Mr Graham’s evidence was that the complaints about him in 2021 “seemed to be mostly about [his] management style”.[15] His tolerance levels were apparently “through the roof” by late 2021, although despite this, he did not seek medical assistance or treatment in relation to his psychological symptoms prior to 22 March 2022.[16]
[15] Exhibit A5, p 3, para 10.
[16] Exhibit A5, p 3, para 10.
On 21 March 2022, Mr Graham was stood down from his role. On that date, a letter (March 2022 Letter[17]) was provided to Mr Graham from Ms Kain (Director of Clinical Services) requesting him to attend a meeting to discuss performance concerns. In the letter, Ms Kain noted that over “the last few years there had been discussions held with [Mr Graham] regarding the need for him to adjust his management style following concerns that were raised from other team members and patients.”[18] The letter further advised Mr Graham that, amongst other things, he would be required to give an “explanation as to why [he] should remain in the position as Nurse Unit Manager”.[19]
[17] In his submissions, Mr Graham has described this as a “Show Cause Letter”. The Respondent disagrees with giving the letter this moniker (see Exhibit R10, p 12, para 37). This issue is explored in later paragraphs of these Reasons.
[18] Exhibit R1, p 2, para 8.
[19] Exhibit A5, p 3, para 11; Exhibit Tr2, p 78.
Ms Kain raised the following issues to be discussed at the meeting on 25 March 2022:[20]
(a)concerns relating to bullying and associated inappropriate behaviour;
(b)the results of an Employee Engagement Survey for Mr Graham’s department identified serious problems with engagement being around the lowest for the Respondent;
(c)in the last 12 months from the date of the letter, Mr Graham’s department had a turnover rate of 46.5%;
(d)Mr Graham’s rating as a leader modelling the “Ramsay Way” by those who took the Employee Engagement Survey reached only 25%; and
(e)on 17 March 2022, the Respondent had been contacted by the Queensland Department of Industrial Relations and requested under section 171 of the Work Health and Safety Act 2021 (Qld) to provide “all correspondence/material including but not limited to emails, letters, survey results, interviews, meeting/discussion notes in relation to any alleged misconduct, bullying, harassment, poor behaviour, disciplinary action involving Wayne GRAHAM since commencement of his role as Nurse Unit Manager.”
[20] Exhibit R1, p 2, para 8.
On 22 March 2022, Mr Graham attended his general practitioner, Dr Christopher Sadler, who reportedly noted “2 years symptoms” and “flash backs to the face of the lady involved”. Dr Sadler also noted that Mr Graham “has not had a single night of proper sleep since…”.[21]
[21] Exhibit A1, p 2, para 7.
Mr Graham was given a medical certificate by the GP. He has not returned to work with the Respondent, but has subsequently endeavoured to re-engage in remunerative work.[22]
[22] Exhibit A5, p 4, para 13.
Mr Graham applied to WorkCover Queensland (WorkCover) for compensation. Based on a report from Dr Benjamin Duke (psychiatrist) dated 2 June 2022, WorkCover advised Mr Graham that his claim should instead be directed to the Respondent under the SRC Act scheme.[23]
[23] Exhibit A1, p 2, para 8.
On 26 July 2022, Mr Graham lodged a claim for compensation under the SRC Act.[24] According to this claim, his Claimed Condition was caused by “[Mr Graham] attending work out of hours at request of CEO, [Mr Graham] was not on call, there was a suicide attempt by a pt, subsequent investigation showed staff negligence, nil follow up from CEO or Ramsay Health”.[25]
[24] Exhibit A1, p 2, para 9; Exhibit R1, p 1, para 1.
[25] Exhibit R1, p 2, para 10.
In describing what injured him, Mr Graham stipulated as follows:[26] “[A]ctual attendance to incident, witnessing pt intubated and transferred to A+E, supporting staff who were on at the time, follow up investigation showing incompetence of staff, Ramsay Health failure to providing information to coroner, pts family”.
[26] Exhibit R1, p 2, para 10.
On 23 September 2022, the Respondent rejected Mr Graham’s claim. This was on the basis that Mr Graham’s condition was excluded pursuant to section 5A of the SRC Act as it was the result of a reasonable administrative action undertaken in a reasonable manner on 21 March 2022.[27]
[27] Exhibit R1, p 1, para 2.
The Respondent says that in the alternative, liability was declined for the Mr Graham’s condition on the basis that his injury arose prior to the Respondent obtaining a licence for self-insurance under the SRC Act.[28]
[28] Exhibit R1, p 1, para 2.
On 4 November 2022, a review officer affirmed the rejection decision by adopting the original reasons for decision.[29]
[29] Exhibit A1, p 2, para 10.
On 8 November 2022, Mr Graham lodged his application with this Tribunal, seeking review of the Respondent’s decision of 23 September 2022 to reject Mr Graham’s claim for workers’ compensation.[30]
[30] Exhibit A1, p 2, para 12.
The hearing of this application took place on 12 June 2024 and 13 June 2024 at Brisbane. The Tribunal heard evidence from the following parties:
(a)Mr Graham;
(b)Ms Katrina Lynch;
(c)Dr Benjamin Duke; and
(d)Dr Martyn Ewer.
WHAT QUESTIONS MUST BE ANSWERED?
I must first determine whether Mr Graham suffered from a “disease”, as defined in subsection 5B(1) of the SRC Act,[31] which is an “ailment” or “aggravation of … an ailment” that was contributed to, to a significant degree, by the employee’s employment.[32]
[31] Exhibit R1, p 4, para 17.
[32] Subsection 5B(1) SRC Act; Exhibit R1, p 4, para 18; Exhibit R10, p 4, para 12.
If the answer to this first question is yes, I must proceed to consider a second question, which is whether the statutory carve out contained in subsection 5A(1)(c) of the SRC Act applies. This stipulates that an “injury” does not include a “disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment” (emphasis added).
This is a case where the Respondent contends that Mr Graham’s condition does, in fact, arise from reasonable administrative action within the terms of s5A(1)(c). If I find that the answer to the second question is yes, then Mr Graham cannot be said to have sustained an injury for the purposes of a claim for compensation under the SRC Act, and that will be the end of the matter.
On the other hand, if the answer to the second question is no, I must then consider whether the injury arose prior to the Respondent obtaining a licence for self-insurance under the SRC Act.
LEGISLATIVE FRAMEWORK
Under section 14 of the SRC Act, a licensee “is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment”. However, if a licensee has been authorised to accept liability for any “particular injury”, then the licensee is liable to pay compensation under the SRC Act instead of Comcare.[33]
[33] Exhibit A1, p 3, para 15.
An “employee” is a “person who is employed by a licensed corporation”. A “licensed corporation” is a “corporation that is the holder of a licence that is in force under Part VIII”.[34]
[34] Exhibit A1, p 3, para 16.
“Injury” is defined under subsection 5A(1) as including a “disease” as defined in section 5B. A “disease” includes an “ailment suffered by an employee” as well as an “aggravation of such an ailment” “that was contributed to, to a significant degree, by the employee’s employment by…a licensee”.
Excluded are diseases suffered as a result of “reasonable administrative action taken in a reasonable manner in respect of the employee’s employment”.[35]
[35] Exhibit A1, p 3-4, para 17.
Section 7 of the SRC Act relates to “Provisions relating to diseases”. Subsection (4) states:[36]
“(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.”
[36] Exhibit A1, p 4, para 18.
Under section 108 of the SRC Act, a licensee may be authorised to accept liability “in respect of a particular injury”:[37]
(1) A licence may provide that the licensee is authorised to accept liability to pay compensation and other amounts under this Act in respect of particular injury, loss or damage suffered by, or in respect of the death of, some or all of its employees under this Act.
(2) The scope of the licence, so far as it authorises acceptance of liability to pay such compensation and other amounts, may be determined by the Commission.
(3) The Commission may determine, as part of the scope of the licence, that the licensee may accept such liability in respect of such injury, loss, damage or death occurring at a time before the licence came into force.
[37] Exhibit A1, p 4, para 19.
The SRC Act recognises that, prima facie, State workers’ compensation schemes might also apply to employees covered by the SRC Act. Subsection 108A(7) states:[38]
(7) If a licensee who is a corporation is authorised to accept liability to pay compensation and other amounts under this Act in respect of a particular injury, loss or damage suffered by, or in respect of the death of, some or all of its employees after the licence comes into force then:
(a) no law of a State or Territory relating to workers compensation applies to a licensee in respect of such injury, loss, damage or death; and
(b) any liability or obligation of the corporation under a law of a State or Territory in respect of such injury, loss or damage suffered, or death occurring, before the licence came into force is unaffected.
[38] Exhibit A1, p 5, para 20.
Mr Graham says that the effect of subsection 108A(7) is that the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (WCRA) does not apply to the Respondent in respect of any injuries covered by the Licence. That is, the WCRA does not apply to any “injury” which occurs during the Licence period commencing on 1 December 2020.[39]
[39] Exhibit A1, p 5, para 21.
DID MR GRAHAM SUFFER FROM A DISEASE?
In order for me to find that Mr Graham suffered from a “disease” for the purposes of the SRC Act, two necessary elements must exist:[40]
(a)Mr Graham must suffer from an “ailment” or “aggravation of … an ailment”; and
(b)the ailment must be “contributed to, to a significant degree, by [Mr Graham’s] employment”.
[40] Section 5B, SRC Act.
As stated earlier, Mr Graham claimed to suffer from PTSD when he initially applied for workers’ compensation. He contends that this is due to him having witnessed a suicide whilst in the performance of his role. It is uncontroversial to say that witnessing such an incident (and later reviewing it on CCTV) would have doubtless caused Mr Graham substantial distress and anguish.
The foremost issue is whether the claimed “ailment” suffered by Mr Graham is better diagnosed as PTSD, or alternatively, as an “Adjustment Disorder”. The expert evidence received by the Tribunal with respect to this issue is, to some extent, at odds:
(a)Dr Duke opined that the diagnosis of Mr Graham’s ailment as PTSD was “reasonable and valid”;[41] while
(b)Dr Ewer accepted that Mr Graham had “some post-traumatic symptoms” but did not think that Mr Graham suffered from PTSD.[42]
[41] Exhibit A5, p 6, para 22(a); Exhibit Tr1, p 26.
[42] Exhibit A5, p 6, para 22(b).
Ultimately, in his closing submissions, Mr Graham accepted that the diagnosis of a “Chronic Adjustment Disorder with anxious mood” is appropriate on the evidence.[43] In considering the evidence in its totality, especially the evidence of Dr Ewer and Dr Duke, I comfortably accept Mr Graham’s submission in this respect.
[43] Exhibit A5, p 6, para 23; see also Exhibit R2, p 27.
The fact that Mr Graham’s Adjustment Disorder was contributed to, to a significant degree, by his employment with the Respondent is also supported by both Dr Duke and Dr Ewer, albeit with the caveat that the experts emphasise different aspects of employment.[44] Specifically, Dr Ewer answered “yes” to the question of whether the “diagnosed psychiatric [condition] [had] been significantly contributed to by the Applicant’s Ramsay Health employment”.[45] When asked to particularise what factors were behind the cause, Dr Ewer described several factors, with an emphasis on the March 2022 Letter.[46] Furthermore, Dr Duke also accepted, following assumptions that were put to him during cross-examination, that the March 2022 Letter seemed to have “significantly contributed to the condition”.[47]
[44] Exhibit A5, p 6, para 25.
[45] Exhibit A5, p 6, para 25.
[46] Exhibit A5, p 6, para 25.
[47] Exhibit A5, p 6, para 25.
Therefore, on any objective view of the evidence, it is clear that Mr Graham’s Adjustment Disorder was contributed to, to a significant degree, by his employment with the Respondent. As such, I am of the view (and I find) that the “ailment” suffered by Mr Graham, being his Adjustment Disorder, constituted a “disease” as defined in section 5B of the SRC Act.
WAS THE DISEASE THE RESULT OF “REASONABLE ADMINISTRATIVE ACTION”
Having found that Mr Graham suffered from a “disease” for the purpose of the SRC Act, I now turn to consider whether that disease arose from the result of “reasonable administrative action”.
Dr Duke and Dr Ewer agree that Mr Graham suffered an ailment outside the bounds of normal mental functioning and behaviour.[48] They also agree that Mr Graham’s ailment was significantly contributed to by his employment by the Respondent, and that the Respondent’s March 2022 Letter was a contributing factor.[49] As such, the key issue in determining whether the Respondent is liable is whether the reasonable administrative action carve-out applies to absolve the Respondent of liability.
[48] Exhibit R10, p 5, para 16.
[49] Exhibit R10, p 5, para 16.
A non-exhaustive list of examples of “reasonable administrative action” is given in subsection 5A(2) of the SRC Act. They include, but are not limited to,[50] a reasonable appraisal of the employee’s performance, a reasonable counselling action and a reasonable suspension action in respect of an employee’s employment.
[50] Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463, at 472-473.
The Respondent says that this list is not to curtail or limit the meaning of the phrase “reasonable administrative action”,[51] as the “section is plainly directed to the taking of a virtually unlimited range of reasonable administrative action taken in a reasonable manner in respect of an employee’s employment”.[52] In this case, the administrative action is the March 2022 Letter and the subsequent decision by the Respondent to meet with Mr Graham to discuss concerns about aspects of the his work performance and conduct.[53]
“As a result of”
[51] Exhibit R10, p 8, para 28.
[52] Exhibit R10, p 8, para 28; Moradi v Comcare [2024] FCA 812, [41].
[53] Exhibit R10, p 9, para 31.
In determining whether Mr Graham suffered the Adjustment Disorder (Disease) “as a result of” reasonable administrative action, I must be satisfied that but for the action, the condition would not have been suffered.[54] The question that must be answered, therefore, is whether Mr Graham would have developed the Disease were it not for the March 2022 Letter.
[54] Exhibit R10, p 9, para 32; see also the explanation of the Full Court in Lim v Comcare (2017) 250 FCR 298, at [41]: “to satisfy the causal requirement in the exclusion in s 5A(1), the Tribunal had to be satisfied that [the applicant] would not have suffered an ailment (or aggravation of an ailment) if the [administrative action] had not been taken”.
Mr Graham contends that the evidence before me does not support a conclusion that, without the March 2022 Letter, his Disease “would not have been contributed to, to a significant degree, by [his] employment”.[55]
[55] Exhibit A5, p 12, para 44.
Regarding the onset of symptoms, Mr Graham has referred to the following history recorded by Dr Duke:[56]
“[Mr Graham] reports, from the date of the incident with the patient [Redacted], the progressive development of difficulties with poor sleep characterised by middle insomnia. He reports ongoing ruminations about the event. He reports flashbacks of [Redacted]’s face.
He reports becoming increasingly irritable. He reported increasing levels of anxiety, particularly when having to go into the room where [Redacted] had attempted suicide. He reports becoming increasingly preoccupied and emotionally distressed when discussing the events.”
[56] Exhibit A1, p 6, para 27.
Mr Graham says that “nothing in Dr Duke’s written reports supports” the conclusion that his Disease arose “as a result of” the March 2022 Letter.[57] Mr Graham further posits that during cross-examination, Dr Duke did not opine that the Disease would not have been suffered or would not have been significantly contributed to by the employment in the absence of the March 2022 Letter, noting that:[58]
(a)During cross-examination, it was put to Dr Duke (as a hypothetical scenario) that the March 2022 Letter was never given to Mr Graham. On that basis, Dr Duke agreed with the proposition that “you cannot say that [Mr Graham] would have suffered a psychological condition because he may not ever have gone to a doctor for them to establish that that was the case”;[59] and
(b)During re-examination, Dr Duke explained that “if [Mr Graham] wasn’t given the letter in March 2022, he may well have been still symptomatic. Whether he crossed the threshold of impairment sufficient to justify a diagnosis at that stage is, I guess, unclear because we have conflicting views”.[60]
[57] Exhibit A5, p 12, para 45.
[58] Exhibit A5, p 12, para 45.
[59] Exhibit A5, p 12, para 45(a); Transcript, p 37, lines 21-23.
[60] Exhibit A5, p 12, para 45(b); Transcript, p 38, lines 28-30.
Mr Graham further argues that Dr Duke’s evidence is insufficient to support a conclusion that Mr Graham’s condition was “a result of” the March 2022 Letter.[61] Mr Graham says that there is nothing in Dr Ewer’s evidence to disturb this assertion either, noting that Dr Ewer was not asked to address this question in his written report.[62]
[61] Exhibit A5, p 12, para 46.
[62] Exhibit A5, p 13, para 47.
Overall, Mr Graham submits, with respect to the application of subsection 5A(1), that I should not be satisfied that the March 2022 Letter was “reasonable administrative action taken in a reasonable manner”.
The Respondent points me to the following evidence which they say demonstrates that the Disease occurred “as a result of” the March 2022 Letter:[63]
[63] Exhibit R10, p 9, para 33.
(a)the day following receiving the March 2022 Letter, Mr Graham experienced an anxiety attack. He had not experienced such an attack previously or symptoms to this severity;
(b)Mr Graham first consulted his general practitioner about mental health symptoms on 22 March 2022, the day after receiving the March 2022 Letter;
(c)the first time Mr Graham was prescribed medication for his symptoms was on 22 March 2022;
(d)Mr Graham first consulted a psychologist on 29 March 2022 and had not previously sought, or been provided, assistance from a psychologist or EAP;
(e)Mr Graham ceased work on 21 March 2022 and has not returned to work since;
(f)prior to receiving the March 2022 Letter, Mr Graham was still functioning at work and did not become incapacitated from work until he received the letter;
(g)Mr Graham felt that he could “no longer cope” after he received the March 2022 Letter;
(h)Mr Graham did not lodge a claim for workers’ compensation until April 2022;
(i)according to Dr Ewer, “the letter [Mr Graham] received in March 2022, regarding his work performance, certainly contributed to his Adjustment Disorder”; and
(j)Dr Duke appears to concede that Mr Graham would not have suffered from a clinically significant condition had it not been for him receiving the March 2022 Letter. At the hearing, Dr Duke stated as follows:[64]
… So I think, I guess, pulling all of that together, if he wasn’t given the letter in March 2022, he may well have been still symptomatic. Whether he crossed the threshold of impairment sufficient to justify a diagnosis at that stage is, I guess, unclear because we have conflicting views and, I guess, a lack of evidence to support the presence of any functional impairment, noting that there is also a lack of evidence of contemporaneous medical evidence for the presence of those symptoms that he was reporting to me …
[64] Transcript, p 38, lines 26-33.
Overall, the Respondent says that these factors, when viewed collectively, overwhelmingly demonstrate that Mr Graham’s Adjustment Disorder was suffered “as a result of” the administrative action.[65]
[65] Exhibit R10, p 11, para 34.
Critically, in order for this nexus to be satisfied, the administrative action does not have to be the sole cause of the Disease for the exclusionary provision to apply, but only one of the causes of the Disease.[66]
[66] Exhibit R10, p 11, para 35; see also Hart v Comcare (2005) 145 FCR 29, at 33; and Drenth v Comcare [2012] FCAFC 86 at [29].
The Respondent has provided a compelling chronology that illustrates how Mr Graham’s medical/psychological issues developed and evolved over time. One must not flippantly depart from the fact that Mr Graham first consulted a psychologist, was first prescribed medication in relation to the symptoms, and first raised the relevant mental health symptoms with his general practitioner, after the March 2022 Letter. Could it be that the letter was the last, or close to the last, in a series of causative factors/events that saw Mr Graham to develop the Disease? Even if that were the case, it would still not disturb a positive finding that the Disease was suffered “as a result of” the administrative action, given what I have said about the minimal causative requirements that must be satisfied.
In light of my finding regarding the requirement that the event in question only needs to be a cause (rather than the sole cause), I am of the view (and find) that this nexus is easily established on the evidence before me, and that the Disease arose “as a result” of the administrative action.
“Reasonable”
Having been satisfied that the March 2022 Letter was an administrative action, and that the Disease arose “as a result of” the action, I now turn to consider whether the action could be considered “reasonable”. This task is an objective, fact-specific exercise.[67] I must not only look at the decision itself, but also the role, position and responsibilities Mr Graham exercised in the Respondent’s employ, as well as the emotional state of the employee concerned.[68]
[67] Exhibit R10, p 11, para 36.
[68] Exhibit A5, p 7, para 14; see also Comcare v Stewart [2019] HCA 365, [23].
To that end, the Position Description for Mr Graham’s role as Nurse Unit Manager aptly illustrates the nature of Mr Graham’s role. It confirms that the role is a key leadership and management role, which instilled in Mr Graham the responsibility for guiding and directing others’ actions to achieve goals.[69] Crucially, the Nurse Unit Manager must “monitor attrition on a regular basis identifying reason for employees leaving and develop strategies to address if required”:[70]
[69] The Position Description is contained in Exhibit R9, and is also more fulsomely transposed in Exhibit R10, p 11-12. See Exhibit R10, p 11-12, para 36(a)-(c).
[70] Exhibit R10, p 12; para 36(d).
At the outset, I will say something about the characterisation of the March 2022 Letter. Much has been said by the parties regarding whether it is properly characterised as a “show cause letter”. The Respondent says that the letter is not a “show cause letter” in the sense described by Mr Graham, and that such a description ultimately represents the letter as something that it was not.[71] In reply, Mr Graham points out that in Ms Lynch’s evidence readily conceded that the letter was a “show cause letter”,[72] and that the plain reading of the letter makes it clear that it is.
[71] Exhibit R10, p 12, para 37.
[72] Exhibit A6, p 2, para 5; Exhibit Tr2, p 78.
Respectfully, I consider this to be a somewhat semantic exercise. Regardless of how the letter is to be titled, it matters little when looking at the substance/form of it and characterising its importance to the matter at hand. It clearly was a communication by the Respondent to Mr Graham that particularised pertinent issues regarding Mr Graham’s employment. It drew to Mr Graham’s attention the issues that would be raised at the subsequent meeting. It clearly had the tone of a communication that was intended to be taken seriously and pressingly by its recipient.
Mr Graham cites the following as relevant facts with respect to whether the administrative action was “reasonable”:[73]
[73] Exhibit A5, p 7, para 30.
(a)During 2021, a number of complaints were made about Mr Graham by staff members. Mr Graham states (and Ms Lynch acknowledged at the hearing[74]) that those complaints were investigated and finalised by no later than December 2021, with most of the allegations found to be unsubstantiated;
(b)unrelated to those complaints, the Respondent conducted a staff survey in about the second half of 2021. The staff survey was anonymous and staff participation was voluntary;
(c)Mr Graham gave evidence that “the only information” he was given about the survey was that “it was something to do with potentially accreditation, something that I had to do every so many years”;[75]
(d)there was no suggestion that Mr Graham was told that the survey was to be used as a measure of his individual performance and the survey was “not designed to manage individual performance”;[76]
(e)in about February 2022, Mr Graham was given access to the survey results;
(f)specific comments (apparently adverse) about Mr Graham were submitted via the staff survey. The Respondent’s CEO seemed to consider those comments were significant, but the comments were not made available to Mr Graham at any time;
(g)on about 14 March 2022, the CEO spoke to Mr Graham. I note that the CEO was not called to give evidence at the hearing. However, Mr Graham says that the CEO’s email about the conversation was to the effect that Mr Graham “basically said today that there is very little that he can do regarding the survey that most of it is my [the CEO’s] concerns not him” and he (Mr Graham) “was shocked that I asked him to review his results and come back to me with an action plan, taking no responsibility”. Mr Graham argues that, at most, that email suggests that he was “shocked” at having to prepare an action plan; not that he declined to do so;
(h)on about 17 March 2022, the Respondent received a letter from the Queensland Office of Industrial Relations asking for certain records relating to Mr Graham. That letter did not state that any new or fresh complaints about Mr Graham had been raised; and
(i)as at 21 March 2022, the complaints about Mr Graham from 2021 had been finalised and the Respondent had not received any new or fresh complaints about him.
[74] Transcript, p 17, lines 5-7.
[75] Transcript, p 9, lines 1-5.
[76] Transcript, p 24, lines 1-3.
The March 2022 Letter informed Mr Graham of the following issues:[77]
(a)concerns relating to bullying and associated inappropriate behaviour had purportedly continued to be raised regarding Mr Graham. The Respondent further points out with respect to this that employees were making complaints directly to the Department of Industrial Relations. In the Respondent’s view, that in itself was of legitimate concern and a discussion as to that fact with Mr Graham was warranted. The Respondent further opines that it was unnecessary for there to first be an investigation into those complaints prior to a discussion about them with Mr Graham;
(b)the results of the Employee Engagement Survey for Mr Graham’s department identified serious problems with engagement, being around the lowest for the Respondent;
(c)in the last 12 months (preceding the date of the letter), Mr Graham’s department had a turnover rate of 46.5%;
(d)Mr Graham’s rating as a leader modelling “The Ramsay Way” by those who took the Employee Engagement Survey reached only 25%; and
(e)on 17 March 2022, the Respondent had been contacted by the Department of Industrial Relations and requested under section 171 of the Work Health and Safety Act 2011 (Qld) to provide “all correspondence/material including but not limited to emails, letters, survey results, interviews, meeting/discussion notes in relation to any alleged misconduct, bullying, harassment, poor behaviour, disciplinary action involving Wayne GRAHAM since commencement of his role as Nurse Unit Manager.”
[77] Exhibit R10, p 13, para 30(a)-(d).
Overall, the Respondent argues that its conduct was appropriate, in order for the ongoing concerns to be raised given the recent nature of the complaints about Mr Graham’s workplace behaviour, and investigations that apparently found them to be (at least to some extent) substantiated.[78]
[78] Exhibit R10, p 13, para 39.
The Respondent argues that the concerns about Mr Graham’s performance were appropriate, noting the context of his role as someone “responsible for general management of the nursing side of the facility, including hiring, HR, rostering, day-to-day management”, and in particular having regard to:[79]
(a)the turnover report for January 2022 revealed that Mr Graham’s unit had a turnover rate of 133% (the target is 12%);
(b)the turnover rate for the 12 months prior to March 2022 was approximately 45%;
(c)the Exit survey results which identify that “dissatisfaction with manager” and poor results in areas that Mr Graham was responsible for, including workplace culture and recognition and reward;
(d)The Employee Engagement Survey indicated that the area Mr Graham was responsible for was “significantly underperforming in every single area” and the results, when compared to other areas in the Respondent’s business were “alarming” and a “red flag”. While not an individual performance tool, these results, “when viewed in the context of the alarmingly poor results that Mr Graham’s department demonstrated and the consistent themes of inappropriate behaviour through the complaints, the high turnover and the request for information ultimately by the Department of Industrial Relations, we [the Respondent] could not ignore the results and it was reasonable to request Mr Graham to respond to those results in the context of questioning his competence as a manager…”;
(e)The poor “Ramsay Way” results were concerning because “the Ramsay Way incorporates the core values of Ramsay and encompasses people caring for people, role modelling appropriate behaviour, supporting your staff, building healthy working relationships and adhering to the Code of Conduct”. The Respondent says this was another “red flag” as to Mr Graham’s competence as a manager.
(f)The letter from the Department was of “particular concern” because it indicated that concerns had been raised directly with the Department and that the Department was conducting an investigation under the Work Health and Safety Act 2011 (Qld) into Mr Graham, without complainants first coming to the Respondent. In light of this, the Respondent notes that their concerns at the time were that “[i]f those concerns were found to be validated, there are potential serious consequences for an organisation (which may ultimately include it being required to stop operating).”
[79] Exhibit R10, p 13-14, para 39.
Mr Graham has taken issue with a number of features of the March 2022 Letter that he says are significant.[80] In particular, Mr Graham takes issue with the reference to “concerns relating to bullying and associated inappropriate behaviour” and the complaints “over the last few years”, as well as the assertion that a “volume of these complaints … continue to be made and the similar themes have become impossible to ignore” as being imprecise and lacking in evidence.[81] Mr Graham contends that the letter is not reasonable because it does not provide adequate particulars of the allegations.
[80] See Exhibit A5, p 8, para 32 - page 11, para 38.
[81] Exhibit A5, p 8, para 32 - page 9, para 33.
I do not consider that Mr Graham’s contention is properly made out. In my view, Mr Graham has mischaracterised the purpose of the letter. Its purpose was not to re-litigate or re-particularise each individual allegation (because, at the time those allegations were made and investigated, they were particularised), but to bring to Mr Graham’s attention a number of concerns. One of those concerns clearly was that, when viewed collectively, Mr Graham appeared to be the subject of a disproportionately large number of complaints, made by various staff members, in a relatively recent and short space of time. It was this fact, rather than any individual allegation per se, that the Respondent saw as warranting the meeting with Mr Graham. In my view, there is nothing unreasonable or untoward to be found in this respect.
Mr Graham takes further issue with the March 2022 Letter “implicitly” assuming the findings of the staff survey referred to his conduct.[82] Again, this appears to be a mischaracterisation or misunderstanding of the letter. The letter disclosed to Mr Graham a number of developments that the Respondent was concerned about. They included information on the staff survey, but also statistics of staff turnover and “Ramsay Way” results. These would have been of concern because of the oversight Mr Graham would have exercised in what was a relatively substantial managerial role. He was ascribed the responsibility of, amongst other things, actively monitoring staff attrition. In circumstances where Mr Graham had this responsibility, and the Respondent subsequently became aware of alarming developments in the same purview, how can it be said that seeking a meeting with the responsible staff member on that very issue is unreasonable? Rather than “implicitly” assuming any findings, it appears that the Respondent had become aware of relevant information and appropriately sought an explanation from Mr Graham.
[82] Exhibit A5, p 10, para 35.
Mr Graham says that he was “surprised” by the March 2022 Letter.[83] I have some difficulties in entertaining this position. How could Mr Graham have been surprised by the contents of the letter, when the results of the Employee Engagement Survey, which was one of the key subjects of that letter, were provided to him a month earlier?[84] Mr Graham says the notion that he was surprised is consistent with the objective fact of being called upon to justify the continuation of his employment without first having an opportunity to understand and challenge the underlying facts.[85] To that end, Mr Graham says that even if reference to the Survey may not be surprising, the sudden demand to show cause why his employment should continue was.
[83] Exhibit A4, para 31.
[84] Exhibit R10, p 15, para 44.
[85] Exhibit A6, p 3, para 6(a).
On balance, I accept that Mr Graham may have been surprised, but do not accept his description that the receipt of the letter was particularly “sudden”. In my view, it was a communication that was proportionate to the circumstances as they then existed. The Respondent appears to have been acting in the context of the Department of Industrial Relations being involved since at least 17 March 2022.
Whether Mr Graham was surprised or shocked is not the question that must be answered; the question that must be answered is whether the Respondent’s administrative action was reasonable in the circumstances. In considering the events surrounding the March 2022 Letter holistically, I agree with the Respondent that their approach was justified.[86] Mr Graham was advised in advance of the scheduled 25 March 2022 meeting what the contents of the meeting would be, and the key concerns that would be addressed. He was told when and where the meeting would take place. He was also invited to bring a support person.[87]
[86] Exhibit R10, p 15, para 40-41.
[87] Exhibit R10, p 15, para 43.
The Respondent further says that the fact that Mr Graham was “so dismissive” of having any responsibility for the results when he was spoken to in February 2022 “justifies the approach taken in the March 2022 Letter”.[88] The decision to stand Mr Graham down on full pay for three days prior to the 25 March 2022 meeting was not unreasonable, given that it afforded Mr Graham the opportunity to focus on preparing for the meeting and was designed to demonstrate the serious nature of the issues raised.[89] The Respondent notes that this, in their view, was particularly important given that (according to them) Mr Graham had already not taken these issues seriously in February 2022.[90]
[88] Exhibit R10, p 15, para 44.
[89] Exhibit R10, p 15-16, para 45.
[90] Exhibit R10, p 16, para 45.
In light of the above, and having considered the submissions proffered by both Mr Graham and the Respondent in full, I am of the view (and find) that the administrative action was reasonable and was undertaken in a reasonable manner.
IS THE RESPONDENT LIABLE?
Mr Graham cannot be said to have suffered from an “injury” for the purpose of subsection 5A(1) of the SRC Act. This is because the Disease arose as a result of reasonable administrative action taken in a reasonable manner, in respect of his employment. It follows that the Respondent is not liable under the SRC Act with respect to Mr Graham’s claim for workers’ compensation.
For completeness, I do note that the Respondent raised the alternative submission that there exists no liability under the Respondent’s licence.[91] This submission relates to when Mr Graham first suffered an ailment outside the boundaries of normal mental functioning and behaviour,[92] and relevantly, subsection 7(4) of the SRC Act stipulates:[93]
Provisions relating to diseases
…
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
Whichever happens first.
[91] See Exhibit R10, p 17-21; para 52-59.
[92] Exhibit R10, p 17, para 52.
[93] Exhibit R10, p 17, para 52.
The Respondent says that, ultimately, subsection 7(4) of the SRC Act “has no work to do unless an ‘injury’ has been suffered by the employee … [if the] exclusionary rider [the RAA exception] has been engaged … there being no injury for the purposes of subsection 7(4)”.[94]
[94] Exhibit R10, p 17-18, para 53. See also Peters v Comcare (2013) 137 ALD 375 at [24]; and Gaffey v Comcare (2015) 239 FCR 76, at 90 [79] per Wigney J.
Both parties appear to be in agreeance that the foremost issue was whether Mr Graham’s disease was caught by the statutory carve out absolving the Respondent of liability.[95] I readily accept the parties’ submission in that regard.
[95] Exhibit A5, p 2, para 3; Exhibit R1, p 4, para 18.
As such, it follows that since I have found that Mr Graham’s Disease is not an “injury” for the purposes of section 5A of the SRC Act, there is no need to consider the ancillary issue of whether the Disease is caught within the scope of the Respondent’s licence. Mr Graham cannot be said to have sustained an “injury” and the Respondent is not liable to pay workers’ compensation with respect to the same. Therefore, it necessarily follows that I must affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.
................[SGD]...................
Associate
Dated: 30 September 2024
Dates of Hearing: 12 June 2024, 13 June 2024
Representatives for Applicant: Mr Matt Black of Counsel
Instructed by Hall Payne Lawyers
Representatives for Respondent: Ms Kate Slack of Counsel
Instructed by McInnes Wilson Lawyers
ANNEXURE A
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED A1. Applicant Statement of Facts, Issues and Contentions A 17/11/2023 R1. Respondent Statement of Facts, Issues and Contentions R 28/03/2024 A2. Applicant Submissions in Reply A
30/04/2024 A3. Addendum Report of Dr Benjamin Duke 20/05/2024 28/05/2024 A4. Statement of Wayne Graham 29/05/2024 A5. Applicant Closing Submissions 04/07/2024 A6. Applicant Reply Submissions 15/08/2024 R2. Report of Dr Ewer R 19/02/2024 05/03/2024 R3. Letter of Kate Lynch 24/01/2024 R4. Briefing Letter to Dr Ewer - R5. Applicant Response to Questionnaires - R6. Affidavit of Michaela Broughton 04/06/2024 05/06/2024 R7. Affidavit of Katrina Lynch 05/06/2024 R8. Clinic notes from Brad Everton - 13/06/2024 R9. Position description of Mr Graham - 13/06/2024 R10. Respondent Closing Submissions 08/08/2024 Tr1. Section 37 T-Documents (T1-T13) - - 24/11/2022 Tr2. Supplementary Section 37 T-Documents (ST1-ST29) - - 12/05/2023 Tr3. Further Supplementary Section 37 T-Documents (ST30-ST33) - - 05/06/2024 Tr4. Further Supplementary Section 37 T-Documents (ST34-ST35) - - 09/06/2024 Tr5. Applicant email to Dr Duke with annexures - - -
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