Henderson v Workers' Compensation Regulator
[2015] QIRC 216
•22 December 2015
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Henderson v Workers' Compensation Regulator [2015] QIRC 216 |
PARTIES: | Henderson, Lynley Jan v Workers' Compensation Regulator |
CASE NO: | WC/2013/216 |
PROCEEDING: | Appeal against decision of the Workers' Compensation Regulator |
DELIVERED ON: | 22 December 2015 |
HEARING DATES: | 24-28 March 2014 |
HEARD AT: | Caloundra |
MEMBER: | Industrial Commissioner Neate |
ORDERS: | 1. The Appeal is dismissed. 2. The decision of the Workers' Compensation Regulator is confirmed. 3. The Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of further application to the Commission. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL FROM DECISION OF THE WORKERS' COMPENSATION REGULATOR - psychiatric injury - allegation of bullying, intimidation, harassment, victimisation and humiliation in workplace - appellant bears onus to establish that her condition falls within the definition of "injury" in the Workers' Compensation and Rehabilitation Act 2003 - evidence in relation to 26 stressors - whether injury arose out of, or in the course of, reasonable management action taken in a reasonable way - appellant to establish that the elements of s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 are not satisfied |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 ss 11, 32 Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision < Sabo v Q-Comp (C2010/46) < v WorkCover Queensland (2000) 165 QGIG 788 |
| APPEARANCES: | Mr T. Nielsen, counsel instructed by Butler McDermott Lawyers |
Decision
Lynley Jan Henderson ("the Appellant") claims to have suffered a psychiatric injury as a result of bullying, intimidation, harassment, victimisation and humiliation at her workplace. Her claim for compensation was dated 9 August 2012. It was accepted originally by WorkCover Queensland. The Appellant's employer, Queensland Ambulance Service ("QAS"), applied for a review of that decision. By decision dated 6 June 2013, the Workers' Compensation Regulator ("the Respondent") substituted a decision to reject the Appellant's application. The Appellant appealed to the Queensland Industrial Relations Commission ("the Commission") against the Respondent's decision.
Background
Mrs Henderson commenced employment with the QAS in August 2008 as an Emergency Medical Dispatcher ("EMD"). She worked at the Maroochydore Communications Centre, where there were about 50 to 60 staff. Her work involved taking calls and dispatching ambulance units in response to calls from the public (both emergency and non-emergency). Her role was described in Standard Operating Procedures ("SOPs") including SOP 94 ("Emergency Call Taking") and SOP 407 ("Quality Assurance MPDS").[1] Her work was highly scripted. Detailed procedures for dealing with calls were prescribed. The computer prompted the EMD to ask specified questions at each stage in the conversation with the caller as answers to questions were keyed in by the EMD. According to the Appellant, "you can't deviate … from policies and procedures." The Appellant also stated that she was required to comply with SOP 124 ("EMD Live Call Taking Evaluation") and the Code of Conduct.
[1] "MPDS" is Medical Priority Dispatch System.
Before working at the QAS, the Appellant was a flight attendant with Air New Zealand for 18 years until 2005. She also worked at St John's Ambulance in Christchurch, New Zealand, as a trained casual communications emergency medical dispatch officer for some years until 2005. That work was virtually the same as her work at the QAS. After finishing work with Air New Zealand, she was employed at the New Zealand Police Service as a communicator taking emergency 111 telephone calls in relation to crime.
After she commenced employment with the QAS, the Appellant was trained and mentored as an EMD.
The Appellant's immediate supervisor was the Communications Centre Supervisor ("CCS") who supervised all of the call-taking and dispatching EMDs in the room.
Within the Communications Centre was also a Clinical Deployment Supervisor ("CDS") who had clinical experience and could employ this in making decisions about dispatch and appropriate use of ambulance vehicles and personnel.
The Regional Operations Supervisor ("ROS") oversaw the communications room and the QAS stations, vehicles and personnel in the region. The only ROS who was nominated in the stressors was Michael Riordan, but Timothy Eva was the ROS from 2009 before acting in other roles.
The Regional Manager of Communications ("RMC") was the most senior position overseeing the Communications Centre, including the Patient Transport Services Professional Development Officers ("PDO") and Quality Assurance Officer. The RMC at the relevant time was Paul Shaw. Timothy Eva performed a relieving RMC role in Mr Shaw's absence.
The RMC answered to the Regional Director of Operations who, at the relevant time, was Craig Emery. The Sunshine Coast was one of seven QAS, regions in Queensland at the time.
Injury
The issues in this appeal must be resolved by reference to the relevant provisions in s 32 of the Act. At the relevant time, those provisions stated:
"32 Meaning of injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury.
…
(2) Injury includes the following—
…
(b) an aggravation of the following, if the aggravation arises out of, or in the course of, employment and the employment is a significant contributing factor to the aggravation—
(i)a personal injury;
(ii)a disease;
(iii)a medical condition if the condition becomes a personal injury or disease because of the aggravation;
…
(4) For subsection (3)(b), to remove any doubt, it is declared that an aggravation mentioned in the provision is an injury only to the extent of the effects of the aggravation.
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
(a)reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment;
(b)the worker’s expectation or perception of reasonable management action being taken against the worker;
(c)action by the Authority or an insurer in connection with the worker’s application for compensation.
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."
The appeal is by way of a hearing de novo in which the Appellant bears the onus of proof, on the balance of probabilities, that her condition falls within the definition of "injury" in the Act.[2]
[2] State of Queensland (Queensland Health) v Q-COMP and Beverley Coyne (2003) 172 QGIG 1447 (Hall P); Q-COMP v Hetherington [2004] 176 QGIG 493 (Hall P); Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031.
In the absence of any concessions by the Respondent, the Appellant would have to prove, on the balance of probabilities, that:
(a) she is a "worker" as defined in s 11 of the Act;
(b) she suffered a new psychological condition or the aggravation of a pre-existing psychological condition;
(c) her injury arose out of, or in the course of, her employment;
(d) her employment was a significant contributing factor to that injury; and
(e) her injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way by her employer, or the Appellant's expectation or perception of reasonable management action taken against her.
Issues
The Respondent conceded that:
(a) the Appellant is a "worker;"
(b) the Appellant suffered from a psychiatric injury;
(c) the psychiatric injury arose out of, or in the course of, the Appellant's employment.
Consequently, the issues to be determined in this case are whether the psychiatric disorder arose out of, or in the course of:
(a) reasonable management action taken in a reasonable way by the employer in connection with the Appellant’s employment; and/or
(b) the Appellant's perception of reasonable management action being taken against her.
Before assessing the evidence, it is appropriate to set out the relevant legal principles.
Reasonable management action
General principles: The extent and limits of the operation of s 32(5) of the Act have been described in decisions in cases summarised below.
The Appellant relies on the following statement adopted by Vice President Linnane in O'Brien v Q-COMP,[3] about what constitutes "management action."
"… managerial means something pertaining to or characteristic of a manger and it is equally obvious that the word 'manager' means one who manages … The word 'manage' is said to be equivalent to conducting or carrying on a business or under-taking or an operation, to conduct affairs. It is also said to be equivalent to controlling or directing the affairs of a household, institution or state, or as the taking of or attending to a matter. It apparently includes the action or manner of conducting affairs or administering and directing or controlling any matter. It is obvious … that the essential meaning of the word is to control and direct and that must obviously include not only administration but direction of planning for any particular enterprise …"
[3] O'Brien v Q-COMP (2007) 185 QGIG 383, 401 quoting Canadian General Electric Company Limited v The Ontario Labour Relations Board (1956) OR 437, 443.
The Respondent agrees that, as in that decision, "management action" has been construed broadly in the case law.
In Q-COMP v Foote, Hall P wrote that, subject to the "very significant statutory qualifications" contained in s 32(5) of the Act, "an insurer takes a worker with all his faults."[4] In relation to those statutory qualifications, Hall P wrote:
"Where the psychological disorder develops out of a worker's perception of reasonable management action being taken against the worker, it is withdrawn from the definition of injury (see s 32(5)(b) of the Act). Where the psychological disorder arises out of or in the course of reasonable management action taken in a reasonable way by an employer in connection with the worker's employment, the psychological injury is withdrawn from the definition of 'injury,' whatever the worker's perceptions may have been (see s 32(5)(a))."[5]
[4] Q-COMP v Foote (2008) 189 QGIG 539, 810 (Hall P).
[5] Q-COMP v Foote (2008) 189 QGIG 539, 810 (Hall P).
In Sheridan v Q-COMP, Hall P referred to "a statutory deviation from the general rule where the psychological disorder arises out of or in the course of a claimant's expectation or perception of reasonable management action being taken against the worker, compare s 32(5)(b) of the Act."[6]
[6] Sheridan v Q-COMP (2009) 191 QGIG 13, 16 (Hall P).
In Lackey v WorkCover Queensland,[7] Hall P accepted that:
"the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and that the former phrase, although it involves some causal or consequential relationship between the employment and injury, does not require the direct or proximate relationship which would be necessary if the phrase used were 'caused by' …"
[7] Lackey v WorkCover Queensland (2000) 165 QGIG 22.
The former President repeated that statement in Avis v WorkCover Queensland ("Avis").[8]
[8] Avis v WorkCover Queensland (2000) 165 QGIG 788, citing State Government Insurance Commission v Stevens Brothers Pty Ltd & Anor (1984) 154 CLR 552, 555 and 559 (Murphy, Wilson, Brennan and Deane JJ); Dickinson v The Motor Vehicle Insurance Trust (1987) 163 CLR 500, 505 (Murphy CJ, Wilson, Brennan, Dawson and Toohey JJ).
In the subsequent decision of WorkCover Queensland v Curragh Queensland Mining Pty Ltd,[9] Hall P stated that the statutory provision:
"does not withdraw from the definition of injury psychological disorders caused by reasonable management action taken in a reasonable way. It withdraws from the definition of injury psychological disorders arising out of reasonable management action taken in a reasonable way." (emphasis added)
He continued by reiterating that it was settled by the decision in Avis[10] that the test posited by the words "arising out of" is wider than that provided by the words "caused by."[11]
[9] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 6-7 (Hall P).
[10] Avis v WorkCover Queensland (2000) 165 QGIG 788.
[11] WorkCover Queensland v Curragh Queensland Mining Pty Ltd (2003) 172 QGIG 6, 7 (Hall P).
However, there is also authority rejecting the proposition that once an injury was in any way "touched" by reasonable management action reasonably taken it is not compensable.[12] More recently, Martin J expressed his agreement with the reasoning in Q-Comp v Hohn where Hall P said that the mere occurrence of reasonable management action will not insulate a disorder from characterisation as an “injury.”[13]
[12] See Q-COMP v Hohn (2008) 187 QGIG 139, 143 (Hall P); Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71 (Hall P).
[13] Davis v Blackwood [2014] ICQ 009, [51] (Martin J).
There is also authority in decisions of Hall P for the proposition that "reasonable" should be treated as meaning "reasonable in all the circumstances of the case," and that such circumstances can include circumstances relating to the psychological make-up of the worker where those circumstances are known to the employer.[14]
[14] See WorkCover Queensland v Kehl (2002) 170 QGIG 93, 94 (Hall P); Mayo v Q-COMP (2004) 177 QGIG 667; Delaney v Q-COMP Review Unit (2005) 178 QGIG 197. See also Re Yu and Comcare [2010] AATA 960.
In Bowers v WorkCover Queensland,[15] Hall P rejected a submission that where the work environment is found to be a significant cause of a depressive illness, the employer's system of work and its implementation cannot be found to be reasonable.
[15] Bowers v WorkCover Queensland (2002) 170 QGIG 1, 2 (Hall P).
There are also decisions to the effect that:
(a) what management must do is be reasonable, not perfect, and, although considerations of fairness will always be relevant, "reasonableness" does not always equate with "industrial fairness;"[16]
(b) it is not necessary that management action be perfect or above criticism, and the term "reasonable management action" permits "failings, deficiencies and flaws provided the management action was sound, based on reason, was not arbitrary, did not involve any unfairness and did not produce an unfair result."[17]
[16] Qantas Airways Limited v Q-COMP (2006) 181 QGIG 301, 307 (Blades C).
[17] Hansen v WorkCover Queensland (Unreported, Industrial Magistrates Court, Industrial Magistrate Taylor, 15 November 2001) 16.
In Prizeman v Q-COMP,[18] Hall P stated that in determining whether action was reasonable management action taken in a reasonable way by the employer in connection with the worker's employment, "it is the reality of the employer's conduct and not the employee's perception of it which must be taken into account."
[18] Prizeman v Q-COMP (2005) 180 QGIG 481.
In Svenson v Q-COMP,[19] Hall P found that the appellant had "developed a propensity to perceive 'bullying' in the conduct of others and to react to it." Hall P continued:
"Perfectly reasonable activity in the workplace may be held to be a significant contributing factor to a psychiatric injury where a claimant's perception of what has occurred is quite different to the reality of that which has occurred. But an injury which arises out of or in the course of reasonable management action reasonably taken is not removed from the exclusion at s 34(5) because of the claimant's flawed perception, see esp. s 34(5)(b)."
[19] Svenson v Q-COMP (2006) 181 QGIG 629, 630 (Hall P).
For s 32(5)(a) to operate there must not only be reasonable management action but that action must be "taken in a reasonable way." The responsibility of management action being taken in a reasonable way lies with the management. Whether management action was taken in a reasonable way is a question of fact, and reasonable people may differ from time to time about whether a particular management decision was reasonably implemented.[20]
[20] Versace v Braun (2005) 178 QGIG 315, 316 (Hall P); see also Alex Sabo v Q-COMP (C/2010/46) - Decision < , [21]
The Commission's role is to embark upon the enquiry whether the psychological/psychiatric injury arose out of, or in the course of, reasonable management action taken in a reasonable way.[21] As Martin J stated:
[21] See Q-COMP v Glen Rowe (2009) 191 QGIG 67, 71 (Hall P).
“The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances. There may be any number of actions or combinations of actions which would satisfy s 32(5). The 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.”[22]
[22] Davis v Blackwood [2014] ICQ 009, [47] (Martin J).
The environment in which Mrs Henderson suffered her injury
The Appellant described the role of the Communications Centre as being to accept 000 telephone calls to ensure the safety of the public. She agreed that the public expect a high standard from the QAS and that people's lives are in their hands. The people taking calls, assessing the situation and arranging for an appropriate vehicle to be dispatched as soon as possible have a high responsibility. It is important that advice is given in a timely and appropriate way. The responsibilities are shared between managers, supervisors and EMDs.
The QAS Communications Centre at Maroochydore is a busy workplace with 50 to 60 staff doing important, and at times stressful work. The Appellant gave evidence that during the day there would be 10 to 12 EMDs plus a supervisor working in communications at any one time. The day shift for the core roster was between 6.30 am and 6.30 pm, and the night shift was between 6.30 pm and 6.30 am. The support roster had shifts between 7.00 am and 5.00 pm, 9.30 am and 7.30 pm, 1.00 pm until 11.00 pm, and 2.00 pm and midnight. During the night, there would be four EMDs and one supervisor. Managers at higher levels (CDS and ROS) would be present during the day shift.
The call centre room was approximately 20 metres in diameter. There was an open plan layout. Desks were joined so that there were two seated positions, with approximately six to eight such workstations or pods. Each EMD sat at one of the positions.
Behind the open plan operations area were offices with glass partitions where supervisors (RMC, ROS and CDSs) worked. At the other end, was a kitchen/tea room with a security door. Near to that was the office for the Professional Development Officer (Jenny Kennedy) and the Quality Assurance Officer (Les Colquhoun).
Roles of EMDs and their supervisors: Among the EMDs in the Communications Centre with the Appellant were Erica Bolam (who was also an acting CCS during the Appellant's period working as an EMD), Melinda Johnson and Sheryl Beaumont (each of whom had more experience than the Appellant) and Nick Fisher (who the Appellant described as "less senior" than her, although on the same level).
Ms Bolam described some features of call-taking and dispatching undertaken by EMDs in the following terms:
(a) call-taking involves following the applicable script;
(b) dispatching involves knowing where about 30 cars are (and whether they have single officers or full crews, whether those crews are intensive care paramedics or advanced care paramedics) to ensure that you send the most appropriate response to the job (e.g. a higher priority job will require a quicker response and the closest car is sent) and includes constant monitoring of pending and active cases, and ensuring that paramedics are getting their designated meal breaks.
When an EMD is doing dispatching, they are supported by their supervisor (a CCS and possibly a CDS) and their buddy EMD.
Supervisors: Ms Kennedy described the role of the CCS as to oversee the room, monitor performance from the call-takers (to ensure that they are complying with the SOPs in taking calls) and dispatchers (to ensure they are despatching the correct ambulances), to ensure that their call-taking and despatching is appropriate and timely, and to ensure that they have enough resources. They also monitor the mealtimes and other breaks taken by staff, and deal with rosters and people calling in sick.
Staff are supervised as they take phone calls and send messages. A supervisor could look into a job at any stage, by putting on headphones and listening to a call. They could bring up a call at their computer or they could stand behind the EMD. If there was an issue, they could draw it to the attention of the Communications Centre manager to have it referred to the Quality Assurance Officer for him to listen to and assess. On any day, a call or calls could be monitored at random by Mr Colquhoun as part of his quality assurance.
The Appellant described the role of a supervisor as overseeing the running of the Communications Centre, including the EMDs. That role included ensuring that dispatching was in accordance with the relevant policy and procedure, and that dispatches were done quickly, appropriately and with the correct codes. They were entitled to monitor the selections being made by an EMD and the level of customer service they were providing, and to comment where they considered that a policy or procedure was not being followed or the conduct of an EMD was below par. In particular, if a supervisor was aware that an EMD was not following the relevant process in relation to calls (e.g. the correct information was not being conveyed to the caller) that would be a valid reason for a supervisor to try to intervene or to discuss the matter with the EMD afterwards.
Ms Bolam gave evidence that in her role as supervisor she was often walking around the communications room, providing assistance when requested and speaking with the EMDs as appropriate. Given the level of noise in the room, and the need to pick a moment between radio or telephone communications involving a dispatcher, a supervisor would normally stand in front of the dispatcher so that they would be aware that the supervisor was going to speak to them. On occasions she would come around the desk to look at the console, especially if an EMD was taking a difficult call. The supervisor might stand behind them to offer them support or assistance with a difficult call. If an EMD was raising their voice (e.g. because the caller was hearing impaired or frantic) she would stand behind them to actively listen and see if the EMD needed some help. If a call-taker is not following the script on the screen, she would direct them to follow the script.
Mr Colquhoun agreed that supervisors have a responsibility to make sure that calls are answered properly and units are being dispatched in a timely and efficient manner. It is proper for supervisors to give directions during a 000 call. They have a role to monitor and improve the performance of people in the communications room.
Each CDS and ROS had clinical experience and operational experience. By drawing on their clinical experience, a CDS would assess calls to see whether they needed to be upgraded or downgraded, thus providing extra clinical input into decision-making.
According to Ms Kennedy, a CDS was not able to give directions to other supervisors. On occasions when there was no CDS, the ROS would sit in the chair of the CDS and take on the role. The ROS is at officer-in-charge level and manages the station. They are senior paramedics, rather than communications staff, and manage resourcing and staffing issues. That involves supervising workers under SOP 94. However, according to Ms Kennedy, even though the ROS could make suggestions, it was the CCS who would make a final decision in the room. Apparently there was some confusion between the roles of the CCS and the ROS.
Stewart Merefield gave evidence that the CDS had a role as an oversight person in terms of all dispatches. They would look at a case that had been dispatched according to process and might decide, after phoning up and obtaining more information from the caller, whether to upgrade to a higher acuity or downgrade to a low acuity or add extra resources or units. The ROS had an overview of the whole room function in terms of the availability of resources, making sure there were enough trucks and staff to respond to cases. For example, they would have input into whether another vehicle should be assigned to a case, or swapping a vehicle that was more appropriate in terms of location and shifts. Mr Merefield described the ROS as the "ceiling decision-maker in the room." They could override policy and procedure based on their clinical knowledge and their operational knowledge, being officers who have many years of experience and who were usually intensive care paramedics.
Ms Johnson gave evidence that the ROS can provide input into despatch decisions, as can a CCS. The ROS has a "much larger scope" than an EMD, who is governed by operating procedures. An ROS can deviate from the procedures. If the decision or directive is outside the protocols, an EMD should document in the computer-aided dispatch system ("CAD") what they have been instructed to do.
Mr Emery also stated that when supervisors direct or guide an EMD to do something different from the standard procedure, that is noted in the CAD, usually by the EMD. Mr Emery described the CAD as the EMD's primary tool. They do not do anything within the Communications Centre without entering it into the CAD system. Every action is recorded there.
Mr Eva was from 2009 the ROS at the Communications Centre. From time to time he acted as the Regional Director of Operations and the RMC (from about June 2011 until August 2012). It is apparent from his evidence that during his period as RMC there was a greater scrutiny of the CCSs in the performance of their role, which had a "knock-on effect" with greater supervision of staff within the Centre. This was in response to the observations of senior management that there had been an erosion of the Communications Centre's adherence to their responsibilities. It also followed an organisational restructure a couple of years earlier.
The Appellant refers to:
(a) evidence about the confusion between management roles including ROSs, CCSs and CDSs, as captured in the report prepared by Roy Waterhouse in 2011 (Exhibit 22), as reflecting the picture in 2010 and 2011;
(b) the evidence of managers about change in roles within the management structure at the Communications Centre (which change had "been and gone" when they gave evidence in 2014).
That topic is considered further in relation to Stressor 13.
Compliance with Standard Operating Procedures: The timely delivery of ambulance services depends in large part on Communications Centre staff acting in a timely and efficient manner, following the QAS procedures carefully and completely. Much of the work is done in a prescribed sequence, with little or no scope for staff to improvise or deviate from the procedure. Mr Merefield, the Patient Transport Manager for QAS on the Sunshine Coast, described the call-taking process as "a standard question-and-answer process that is very structured and very rigid in terms of its process."
At all relevant times, Ms Kennedy, as a Professional Development Officer, acted as a mentoring role model, monitored the skill level of all officers in the communications room (including their call-taking dispatch skills, and their compliance with the relevant SOPs), and organised training and professional development plans for staff. Previously Ms Kennedy had been an EMD. According to Ms Kennedy, following the script is "probably the most important job [EMDs] have." If they do not follow the script, they might be put on a development plan to further educate them in the correct procedures.
Mr Colquhoun has been a qualified Quality Assurance Officer with the QAS since June 2008. He stated that the QAS takes the issue of adherence to policies and procedures very seriously, and that where a person was required to follow scripts they should not deviate from the script. Some deviations are considered to be more serious than others.
Mr Colquhoun gave evidence that a supervisor does not have the power to deviate from the script or instruct an EMD to deviate from the script. Where there is a deviation in the case of an emergency (where a number of 000 calls are coming in at about the same time) that is done in accordance with SOP 85 "MPDS Emergency Rule" (Exhibit 35 D151-155). The supervisor has to make the full room aware of that SOP before the EMDs commence their shift.
Another procedure is the "urgent disconnect" which allows that, once an EMD has reached the part of the script dealing with post-dispatch instructions and if the EMD can hear another 000 call ringing, they can advise the caller that the EMD needs to hang up to take another call and advise the caller that if anything changes they can call back on 000. This procedure is separate from the Emergency Rule procedure. Mr Colquhoun stated that urgent disconnection happens daily as a consequence of the Communications Centre taking hundreds of 000 calls. A supervisor should not tell an EMD to implement the urgent disconnect unless the supervisor knows how far the EMD is through their current call. There are some types of calls where it is not appropriate to disconnect.
The perceived, and at times actual, tension between strict compliance with standard operating procedures and the variation or overriding of those procedures by supervisors in certain circumstances is at the heart of some of the Stressors on which the Appellant relies in her appeal. When assessing those Stressors, it is useful to have regard to the roles and powers of the supervisors summarised above and the evidence of Mr Emery about the function of SOPs in the day-to-day work of the Communications Centre. Mr Emery is the Chief Operations Officer for QAS. He is responsible for operational planning, operational government and service delivery across the QAS. He commenced as a paramedic with the QAS in 1990, and in 2009 was the Regional Director of Operations for the North Coast region.
Mr Emery referred to the QAS receiving some 900,000 responses each year (including 600,000 of the 000 calls) and said that the QAS is "not naive enough to think that a set of defined SOPs caters for every one of those operational circumstances." He described SOPs as "a small part, though an important part, of what we do," which is "enriched by jurisdiction decision-making by experienced personnel." He expected the EMDs to follow "fairly closely" the principles and guidelines to the best of their ability, and that more senior operational staff with oversight would "adjust that as required, resource things differently as required from time to time." His evidence was that supervisors have "the legitimacy to operate outside of a standard operating procedure for the right reasons," and they "have the ultimate decision, they ultimately wear the responsibility." (T 6: 19-20)
Mr Emery stated that "novice practitioners generally seem to think of [SOPs] as absolute black and whites," and that the "more novice of the EMDs" were probably more confused about the roles of supervisors and the level of protection of EMDs if a supervisor says they are to do something differently. (T 6: 33, 35)
Justin Cumming who mentored the Appellant when she started with the QAS, confirmed that she was deemed competent to be a qualified EMD. He recalled that she seemed very focused on following policies to the letter, and resisted deviating from the Standard Operating Procedures. She also spoke to him about concerns she had about the role that the CCSs and ROSs played in the communications room. Mr Cumming agreed that if a CDS or ROS asked the Appellant to deviate from the script they should enter in and log on the system and notify the system that they told her to do that. However, they sometimes asked people to deviate from the SOP. In an email to Ms Kennedy, Mr Peatey and Mr Cumming dated 28 November 2009, the Appellant wrote, "would you please clarify the role of CDS and ROS." She gave examples of the CDS making dispatch decisions outside the SOPs, and continued:
"My job is to dispatch as per the SOPs, if the CDS/ROS wishes to change it or sees a better option then he should notify the dispatcher per a notifier so it is in the job." (Exhibit 18)
Assessment of EMDs: SOP 407 deals with Medical Priority Dispatch System ("MPDS") Quality Assurance. MPDS comprises:
(a) Emergency Services Computer Aided Dispatch, also referred to as VisiCAD, which is the primary communications tool for geo-verification of calls and dispatch;
(b) ProQA software, which is the primary clinical aid for call taking.
Advanced Quality Assurance ("AQUA") provides the template for case evaluation (or audit) and is used to calculate a percentage compliance score for each section of ProQA.
SOP 407 states:
"Communications quality assurance takes into account the entire caller-calltaker-dispatch-response continuum. Whilst callers to the QAS are seeking assistance in often emotionally charged and tragic circumstances, QAS staff interaction must reflect compassion for the caller, professionalism in call management, act in the best interests of the patient and optimise scene safety. (Exhibit 35 D 138)
SOP 407 emphasises the importance of customer service. It states:
"QAS requires of its EMDs, particularly Calltakers, that they provide a high degree of patient focused customer service. Customer service is broadly defined as 'a series of activities designed to enhance the level of customer satisfaction-that is, the feeling that the service has met customer expectation'." (Exhibit 35 D 139, 142)
The performance of an EMD was assessed by reference to compliance with policy and procedures. According to the Appellant, an EMD would be "penalised very heavily" for "deviating from the script" when responding to a call. (T 1:52-53, 56-57)
There is a system for supervisors to conduct six live audits of EMDs each day and hence to assess their own team and have some input.
Ms Kennedy gave evidence that non-compliance with the relevant script is carried out by the Quality Assurance Officer, Mr Colquhoun, selecting cases randomly, listening to them and reviewing and assessing them by reference to a standard set of professional questions, and providing a compliance score and comments. The audit process is comprehensive and is done for the purpose of ensuring that each EMD followed the correct line of questioning. An average compliance score of 90 per cent meets the requirements of SOP 407. However, an EMD could have a satisfactory overall compliance score but perform so badly on one of the matters (particularly customer service) that it is treated as a compliance issue.
If the EMD:
(a) meets the criteria, a copy is sent to the EMD and to the Professional Development Officer for filing;
(b) has a compliance score between 75 and 90 per cent, the audit is referred to the Professional Development Officer and he or she provides feedback to the EMD;
(c) has a compliance score between 50 and 74 per cent, the EMD is brought into the Professional Development Unit's room and is given feedback by both the Professional Development Officer and Mr Colquhoun;
(d) scores below 50%, the audit is forwarded to the operations manager who is meant to consult with the Professional Development Officer.
Ms Kennedy agreed that the RMC has a role to deal with critical non-compliance in call-taking and that if a call had a compliance rate of zero, it would be reasonable for the RMC to deal with that directly.
In some circumstances the EMD can be put on a Diminished Performance Plan or a Performance Improvement Plan, or they might be mentored by another EMD until their compliance score has improved.
As noted earlier, EMDs have two roles: call-taking and dispatching. The ProQA and the AQUA quality assurance assessment relate to call-taking. Hence, the compliance rates referred to call-taking only.
Various witnesses described the "tick and flick" live audits of calls undertaken by the supervisor of the EMD. SOP 124 "EMD Live Call Taking Evaluation" (Exhibit 35 D126-129) provides Communications Centre team leaders with "a tool to evaluate and provide feedback on the performance demonstrated during a live call witnessed by the Team Leader to call takers." The procedure is to be used to "evaluate and provide constructive feedback to EMDs performing call taking roles in the live operational environment." As part of their routine duties, team leaders are instructed to undertake evaluations of EMDs on each shift while the EMDs are processing requests for ambulance services. Each team leader is to monitor 4-10 calls on each shift selecting a different EMD for each call. If there is a limited number of call takers on a shift, then more than one call on the same call taker may be evaluated at different time intervals. Evaluation forms are to be completed during or immediately after monitoring each call. Depending on the evaluation, matters might be raised with an EMD. For example, if the team leader answers "No" to specified items, the team leader might arrange for the Professional Development Officer to discuss the performance with the call taker and provide them with options on behavioural changes to increase the call taker's skill levels when dealing with similar situations in the future.
The tick and flick sheets give an overall idea of what is happening in a centre and are used to manage standards.
According to Ms Kennedy, the only supervisors who were trained to do the "tick and flick" process while the Appellant was working at the Communications Centre were Mr Cumming and Ms Johnson. Ms Kennedy received no tick and flick forms in relation to the Appellant before February 2012 (when Ms Kennedy went on long leave). So far as she was aware, the Appellant was competent. Each year Ms Kennedy would also conduct an assessment of the EMDs' call-taking and dispatch.
Mr Eva described AQUAs as indicators of compliance more than competence. Although a combination of those scores and tick and flick sheets are two components of performance from a "hard data point of view," the organisation relies "very heavily on supervisor feedback" when assessing the performance of EMDs. The nature of non-compliance is more important than the percentage on the score. (T 7: 99, 102)
Sally Bloomfield acknowledged that AQUA audits only covered a small percentage of any EMD's call-taking, and that the "tick and flick" covered a small part of their work. The assessment of an EMD was principally undertaken by the direct day-to-day observation of the supervisors, whose role included directing and correcting EMD is as necessary.
Mr Emery gave evidence that only three per cent of calls are audited for compliance against the call-taking prescription. The audit process and percentage score was a very important measure of an EMD's call-taking ability. However it is not an overall assessment of the EMD's performance. Indeed, Mr Emery agreed that the AQUA percentage results are very small part of the assessment of an EMD. In relation to operational efficiency, the supervision is more important. (T 6: 3 30-31, 39-40)
The social context: The Appellant and some of her co-workers gave evidence about the nature of their interactions with each other. As will become apparent, there were personality differences and instances of conflict and slighting or other behaviour which the Appellant characterised as evidence of bullying, intimidation, harassment, victimisation and humiliation of her.
Ms Bloomfield, who worked for the QAS from February 2008 until September 2013, (including as a CCS at the Communications Centre from July 2011 until February 2012) described "quite a dysfunctional culture" there, and referred to it as "toxic." There were separate cliques around Mr Shaw (e.g. Ms Kennedy and Mr Colquhoun) and Mr Eva (e.g. Mr Riordan, Rick Tenthy). When Mr Shaw was away on secondment, the supervisor under Mr Eva felt that they were in charge of the call centre and could run the room, telling EMDs what to do even if that was outside a protocol or procedure.
Although the evidence before the Commission does not establish that there was a "toxic" or "dysfunctional" social environment, it provides examples of the difficulties alluded to by Ms Bloomfield and asserted by the Appellant.
Language in the workplace: Some stressors involve the alleged use of coarse language in both written and oral communications at the Communication Centre. To put those stressors in context, I note that Ms Bolam gave evidence that the word "fuck" is used "all the time" by people in the communications room, apparently in frustration because they deal with "a lot of dodgy radios." However, it is not directed towards other people.
More specifically, Ms Bolam gave evidence that she had heard Mr Eva use the word "fuck" in the workplace but not towards, or about, a person. Mr Eva was happy to give evidence that there have been times when he had sworn in the course of conversations in the workplace, but stated that he had "never sworn at an employee."
Mrs Henderson's personality
The Appellant's evidence is critical to the outcome of her appeal. Her behaviour in either prompting actions by others or responding to what others said and did in relation to her is central to any assessment of the Stressors. Accordingly, it is appropriate to make some observations about the way she approached her work at the QAS, and her interactions with her work colleagues, before considering each Stressor or group of Stressors. The following observations are relevant to an assessment of whether and why some events occurred, as well as of the Appellant's recollection or perception of events and her credibility as a witness.
There was no issue that the Appellant is generally competent and trained to do the work for which she was employed. Indeed, there was evidence from work colleagues that she was a diligent capable officer, competent in her role. As will be seen in the discussion of Stressors 1, 3, 15 and 24, her supervisors recognised and confirmed her competence. It is appropriate to note statistical data in support of that assessment.
SOP 407 lists the compliance scores required in relation to the following items:
Case Entry 95%
Chief Complaint Selection 95%
Key Questions 90%
Dispatch Life Support, and separately assessed as:
· Pre-Arrival Instructions, and 95%
· Post-Dispatch Instructions 90%
Final Coding 90%
Total Compliance Score 90%
Customer Service 95%
The Total Compliance Score is the average score in relation to those items (other than Customer Service).
A Communications Centre Protocol Compliance Report in relation to the Appellant dated 26 April 2012 (for the period 2 October 2008 until 26 April 2012) recorded her average compliance rate over that period at 91.98 per cent (Exhibit 1). Her compliance scores (including for Customer Service) were above the required percentage for each item other than Pre-Arrival Instructions, where the score was 56.25%. According to the Appellant, she was only aware of two occasions in that four year period where her calls had lower scores than the required compliance score. Those calls are significant for some Stressors and considered later in these reasons.
The Appellant's perception of her own competence and how she went about her work (including dealing with disagreement or directions) is reflected in her evidence and the evidence of others, and in submissions made on her behalf, that describe her as a "literal person." For example:
(a) Mr Cumming, the Appellant's mentor when she was first trained at QAS, said that she was good at following procedures;
(b) the Appellant said that she understood that she would be "penalised very heavily" if she departed from the script;
(c) Mark Temple, an EMD with 17 years' experience with the QAS, described the Appellant as a "diligent, capable officer" who followed policies and procedures "to the letter of the law, and she doesn't like being questioned when it's - when something is told to her to do something differently, she'll always do it the way it's meant to be done."
(d) Ms Kennedy described the Appellant as "very focused on her performance." She complied with the SOPs, and when asked to deviate from policy, "would question it, or comply with the policy" rather than comply with the direction. The Appellant could be "very direct," which could be interpreted as rude, and was "very much to the point." Ms Kennedy recalled counselling the Appellant about her being direct.
(e) Mr Merefield, who described his relationship with the Appellant as "good," described her as "fairly black and white about process, in terms of, this is policy, this is not the policy." From that point of view, if she was criticised, the Appellant "would usually challenge." On occasions, she "took it personally."
(f) Ms Bloomfield described the Appellant as "a strong character in she was very black and white and she would follow protocol and procedure, which is the correct thing to do when you're an EMD, and if she was asked to step outside that procedure of protocol … It would make her very uncomfortable and she would verbalise that and she would say 'That's not what I am supposed to do'."
Mr Colquhoun observed the Appellant's approach to her work to be "good." Although he had no issue with her interpersonal skills, he noticed "friction" in her interaction with other employees in the workplace (such as office gossip and people talking about her behind her back).
The Appellant stated that during her work at the QAS "I believe that people were making complaints all the time about me being rude to people." She confirmed that she had been advised that "there have been a number of complaints" about her by clients of the Patient Transport Service when she was working in that role, and that Ms Bolam often spoke to her and said that she was raising her voice. The Appellant acknowledged that the nurse unit manager at Caloundra General Hospital had complained about her manner in relation to a transfer between hospitals (See Stressor 16).
The Appellant also agreed that, during her time at QAS, she made numerous written complaints about people. In May 2009, approximately three months after she had been certified as an EMD; she made a complaint because she was unhappy with the supervisor's directions in relation to where she was sitting on a shift and her perception that she should be getting more dispatch work. In September 2009, she made a complaint in writing to Graham Peatey about Ms Johnson, which complaint was investigated and resolved. In October 2010, she complained to Mr Shaw in relation to Ms Beaumont. In April 2011, she made a complaint to Mr Shaw about Di Cross. In August 2011, she made a complaint about Ms Bolam and Mr Riordan. In September 2011, she complained about Shane Kropp. On 7 June 2012, she made a complaint about Mr Cumming. In July/August 2012 she complained about Mr Eva, Ms Bolam and numerous other personnel. The Appellant involved people other than her line managers in relation to some complaints, in particular the Professional Development Officers, Ms Kennedy and Mr Colquhoun. She also spoke to a number of managers about the behaviour of others.
The Respondent relies on evidence from Ms Beaumont and cross-examination of the Appellant to illustrate what the Respondent describes as a "consistent pattern" with the Appellant:
(a) being adamant that she was correct;
(b) not acknowledging the role and responsibility of the supervisor in making quick operational decisions with contrary information from two sources;
(c) arguing with a supervisor when the supervisor is attempting to facilitate emergency care;
(d) using QAS facilities to prove supervisor is incorrect, rather than for her own learning and development; and
(e) making a written complaint by email about the supervisor.
Ms Beaumont stated that it was not unusual for the Appellant to be "in the face" of supervisors. She gave examples, some of which were documented (see Exhibit 20 dated 21 April 2012, and Exhibit 21 dated 3 May 2012), of:
(a) delays or errors in dispatching by the Appellant;
(b) a few issues which she had raised with the Appellant concerning her behaviour including the use of the work telephone for personal purposes; and
(c) the reluctance of the Appellant to admit errors on her part unless they have clearly demonstrated to her and then her willingness to apologise (sometimes profusely), although similar issues subsequently arose.
Dr Susan Pavey, a consultant psychiatrist who treated the Appellant between 24 October 2012 and 12 June 2013, gave evidence of the Appellant's perception of being unjustifiably criticised and of her sense that her employment might be at risk was "compounded … because she felt she was excellent at her job. She repeated that several times, that she was excellent, that she had excelled as a trainer. She wondered whether she was picked on because she was so good at her job and there was jealousy." (T 1: 30) In a report dated 30 October 2012, Dr Pavey wrote that the Appellant "describes being exceptionally good at her job and had excelled in the training stages with early certification achieved. She wonders whether this provoked jealousy in the workplace and lead to the attempts to undermine her" (Exhibit 35 C140).
The submissions made on the Appellant's behalf state that:
(a) she gave strong and forthright evidence of the events that occurred in the workplace between early 2009 and August 2012;
(b) it was apparent from her presentation that she had a good command of the facts; and
(c) at times she was upset and angry and bewildered by what had occurred to her.
Generally speaking, that much can be accepted. But, as will be seen, her evidence was not beyond criticism.
The Respondent submits, by reference to evidence of some co-workers of the Appellant (and the Appellant herself), that among other things, the Appellant:
(a) believed that she was very good or even excellent at her job and that once she had qualified as an EMD she was competent to perform her job and should be allowed to do so without interference from more senior and/or experienced colleagues;
(b) did not appreciate being advised or directed to do anything by someone who she perceived to be not better qualified than she was (particularly as she had been signed off as competent and when she considered herself to be correct);
(c) responded poorly to direction by supervisors; and
(d) presented as a person who is very "black and white" in her views and perceptions (including about aspects of the supervisors' role, such as to add clinical knowledge and at times override her actions based on the scripted instructions for EMDs, and to monitor calls and dispatches in real-time and intervene as necessary).
Indeed, the Respondent submits that the Appellant was not a reliable witness, and gives examples said to support findings that, among other things, the Appellant:
(a) was evasive in cross-examination and did not answer the questions put to her, but made self-serving statements and accusations;
(b) was inconsistent with her alleged recollections and inability to recollect;
(c) was prone to embellishment to the point of rather paranoid ideation about innocuous occurrences;
(d) contradicted herself;
(e) invented versions of events despite also giving evidence that she would not recall some events; and
(f) gave evidence that was, in some respects, incredible.
I do not adopt that submission in those global terms as the basis for deciding this appeal. Rather, the assessments of the Appellant's personality and behaviour in the workplace summarised above provide background to the case. It remains necessary to consider the Appellant's evidence in relation to specific Stressors in light of any particular criticism of her evidence on those points.
Stressors
In her application for compensation dated 9 August 2012 and lodged with WorkCover Queensland, the Appellant:
(a) described her injury as "Psychological system in general, Anxiety/stress disorder;"
(b) stated that the injury happened as a result of "Bullying, intimidation Harassment Victimisation Humiliation;"
(c) stated that the injury happened at "Other private workplace" 1 Claremont Street, Buderim, QLD 4556;
(d) stated that the injury did not happen over a period of time; and
(e) specified that the injury happened on 6 July 2012 at 12.00 am.
However, her appeal was conducted on a different basis from that specified in items (d) and (e). The case as argued relied on a series of events and interactions over a period of three and a half years.
In accordance with the Further Directions Order of the Vice President made on 25 July 2013, the Appellant provided a Statement of Stressors dated 16 August 2013, together with a document "Further & Better Particulars to Statement of Stressors" of 7 November 2013.
As Justice Martin, the President of the Commission, has stated in recent decisions:
(a) the process of filing and serving a list of stressors is used to identify those events or matters which an Appellant says caused the psychiatric or psychological injury;[23]
[23] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7].
(b) the list of stressors must be confined to matters that are relevant to the injury - it is not to be a list of grievances;[24]
[24] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [8]
(c) the list of stressors is not, by itself, evidence;[25]
[25] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [7].
(d) mere provision of such a list does no more than alert the Respondent of the case to be advanced by the Appellant;[26]
[26] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 027, [8].
(e) however the Respondent is entitled to engage in the proceedings on the basis that statement of stressors comprises the matters which constituted the entirety of an appellant's claim;[27] and
(f) the Commission must decide the appeal by reference to the list of stressors and may not go beyond them when making findings.[28]
[27] Blackwood v Adams [2015] ICQ 001, [17].
[28] Blackwood v Adams [2015] ICQ 001, [19].
The Appellant originally nominated 30 Stressors over the period from February 2009 until August 2012. Some were specific events said to have occurred at nominated dates and times. Others were descriptions of repeated conduct of the same type alleged to have occurred over a period.
Some of the Stressors were described in the original statement provided to WorkCover or in the review process, and the Notice of Appeal. Others were first mentioned in the Statement of Stressors. At the commencement of the hearing, the Appellant advised that she would not proceed with Stressors 8, 9 and 11. Stressor 27 was also not pursued.
Because evidence was given and submissions were made about most of the Stressors, it is necessary to consider each of them. As will become apparent, some are more significant than others and hence are discussed in more detail.
Although each Stressor is described separately, some should be considered together. Stressors 1 to 3, for example, deal with related issues. There was some overlap in the evidence and submissions in relation to them. Similarly, it is appropriate consider together Stressors 6 and 15, Stressors 18 and 21, and Stressors 17, 19 and 22.
Stressor 1 - Appellant being consistently belittled, backstabbed, undermined, isolated, humiliated and excluded by Melinda Johnson, who manipulated to have her removed from duties (in period February to May 2009)
[100]Evidence: The Appellant finished her EMD training in February 2009. She gave evidence that from about then she had issues with Melinda Johnson, another more experienced EMD. On one occasion soon after February 2009, the Appellant was dispatching two ambulances, one as a Code 1 Bravo (closest available immediate ambulance, lights and sirens) and the other as a Code 2. Ms Johnson wanted the Appellant to upgrade the second ambulance to Code 1. The Appellant considered that to be against the SOP and was not the way she had been trained. Shane Kropp, the CDS at that time, asked the Appellant what was happening, and then backed her in relation to the Code 2. According to the Appellant, Ms Johnson was not happy with that outcome, and made a comment and rolled her eyes. She had a conversation with a couple of other people in the room that day. The Appellant could not recall Ms Johnson's comment but characterised it as negative.
[101]The Appellant also gave evidence that, one day subsequently (apparently in May 2009), she was dispatching while sitting beside Scott Bennett, another EMD. He spent the day "questioning everything [the Appellant] was doing." The next day, she was dispatching. When she returned from a break, Ms Johnson was in her seat. The Appellant was told by the CCS that she was no longer dispatching for that day and that Mr Bennett had refused to work with her. She formed the view that Ms Johnson had "manipulated" that decision. The Appellant said that subsequently she was "frequently" taken off dispatching.
[102]The Appellant did not recall Bernie Moran, the CCS, telling her that Ms Johnson would be sitting with her to assist, and she denied that in response she told Mr Moran that she would not dispatch. She did recall being directed by Mr Moran to sit in the Sunshine Coast "buddy seat" next to Ms Johnson, and that she was told she was not dispatching but that Ms Johnson was dispatching that night and the Appellant may be dispatching later in the evening. However, the Appellant denied that this was as a consequence of her discussion with Mr Moran and was an attempt to assist her with dispatching.
[103]Ms Johnson gave evidence in relation to this Stressor. She has been an EMD at the QAS since 2007, and from time to time has acted as a PDO. By Ms Johnson's account, she was dispatching and the crew for a matter she had dispatched responded asking her a question about the case because it has been upgraded. Ms Johnson had not noticed that at the time. The Appellant had taken a call in relation to it. Ms Johnson yelled and asked the Appellant why it had been upgraded. According to Ms Johnson, the Appellant "snapped" at her and said something along the lines of that it was upgraded to a Code 2 response (which is not lights and sirens) which it already was. However the patient was not alert. The case could have been upgraded to Code 1 in one of three ways. Ms Johnson said she did not understand what was happening and asked the Appellant why it was upgraded (which is the question the crew had asked her).
[104]Ms Johnson's evidence about the May 2009 incident was that she was asked by Mr Moran to work with the Appellant because the Appellant had apparently expressed concerns about her dispatching, after completing her period of mentoring by Mr Cumming. Mr Moran asked Ms Johnson to sit with the Appellant for a shift and "walk her through things, anything that she had an issue with that we could just talk through it all go through with her." She described this "shadowing" as "helping someone build their confidence." It was, in her experience in Cairns, a common practice in relation to an EMD who was recently signed off. The new EMD could draw from the support of an experienced EMD. Ms Johnson gave evidence that she did not know whether Mr Moran informed the Appellant that he was going to have someone shadow her.
[105]According to Ms Johnson, when Mr Moran asked the Appellant to do dispatching she refused. He then politely told the Appellant she would be doing it. The Appellant put in a complaint.
[106]Ms Johnson said that she "got on quite well" with the Appellant while she was being mentored, and did not have any issue with her between May 2009 and receiving a complaint made by the Appellant about her. Ms Johnson rejected the suggestion that she rolled her eyes and pulled faces when the Appellant spoke. She denied making negative comments or describing the Appellant as incompetent.
[107]On Saturday 23 May 2009, the Appellant sent the following two emails to Ms Kennedy:
(a) at 12.39 am concerning issues with seating (that they had apparently discussed the previous day), in particular that she was on the roster to do the Wide Bay dispatch at a specific location but another person (Chris Dawe) was dispatching there. The Appellant said that she needed to dispatch and was not getting enough experience, and was told by Mr Moran she might get some during the night. Ms Johnson offered the Appellant training but, she wrote: "as much as it was very gracious of Mel, I don't need training, I just need exposure. … I am not getting the exposure or the practise and it is really affecting my confidence and ability with dispatching. It is important to me to know and do my job competently and when I know I am underperforming, it just adds to the mix. Not funny any longer. It is my responsibility to make sure I get the exposure but it is not my place to jump up and down when I come to work." (Exhibit 3)
(b) at 7.59 am stating that she was "very angry, hurt and very embarrassed." The Appellant had dispatched on Sunshine Coast the previous night although, according to the roster, she was supposed to be dispatching on Wide Bay. She stated "I need the exposure." Mel was "managing the board" and the Appellant overheard her telling a road crew by telephone that she had been told to watch the Appellant. The Appellant wrote: "If there is a problem it would not only be courteous but an obligation to advise me and it certainly isn't something to be discussed with on road crew." She then described the events on the day when she was dispatching with Scott Bennett beside her (when he got angry if she questioned what he was doing, the Appellant had to remind him that she was dispatcher, and she was later replaced as dispatcher by Ms Johnson). The Appellant continued: "Jenny I have every right to be given the opportunity to build on my skills with the appropriate exposure and I am not being given this opportunity. I have a lot to learn, but I don't think I am doing too badly. … So if there is an issue with my dispatching I would like to know." (Exhibit 3)
At 8.53 am, Ms Kennedy forwarded the Appellant's second email to Mr Peatey.
[108]Ms Kennedy sent an email to Ms Johnson at 1.06 pm asking her to advise "if there were any issues that involved you with respect to Jan dispatching on Friday night" (Exhibit 10). Ms Johnson replied at 8.46 pm to the effect that:
(a) Mr Moran, the CCS, asked Ms Johnson to "shadow" the Appellant while Ms Johnson was dispatching;
(b) when he told the Appellant what would be happening, she said that she would not dispatch, but after he explained that she would be dispatching, Ms Johnson gave her a handover and "shadowed" her;
(c) the Appellant can do the principles and VisiCAD functions for dispatch "without any problem;"
(d) her personal opinion was that the Appellant "suffers greatly from not being able to follow instructions immediately and does not listen well," including "not listening to what else is going on in the room and jumping in when she does not fully understand." Ms Johnson stated that the Appellant "does not continually review her board and the status of vehicles, update quick notes and does not monitor her map at all." Ms Johnson tried to explain the importance to her but was "not sure that it was taken on board." In relation to monitoring, Ms Johnson felt that the Appellant was "easily distracted by personal phone calls, the Internet, local talk as we all are at times but dispatch should take priority;"
(e) the Appellant seems to want to "blame everyone else and everything else for any shortcomings that she thinks that she may have (she herself admits she is insecure) and she had an excellent mentor and if she could attempt to learn and draw from the experience around her instead of being so abrupt she would better serve herself. She really is a lovely person;"
(f) if it is deemed that the Appellant needs any retraining, Ms Johnson was "not volunteering and would prefer not to be involved any further due to the above statement." (Exhibit 10)
[109]Erica Bolam has worked as an EMD for the QAS at the Maroochydore Communications Centre since 2007. On occasions since 2009 she has acted as a CCS. She has worked alongside the Appellant and has been her acting supervisor. She described their working relationship as "just a professional relationship." At times she thought the Appellant found in the role "a bit challenging" and "found it hard to follow directives."
[110]Ms Bolam gave oral evidence that at the end of May 2009 she returned from an overseas trip. She and the Appellant and were doubled up on a roster. The Appellant approached Ms Bolam when Ms Bolam first arrived at work, and asked her to despatch. Ms Bolam's preference was not to because she had been on holiday and "dispatching can be a little bit horrendous" and she had locked herself out of the corporate computer so did not have access to the mapping information required for the Wide Bay Burnett region ("where the cars don't track"). However Ms Bolam did the dispatching because the Appellant insisted that she did not want to despatch. On the following day they were due to do relief dispatching for the Sunshine Coast when others went on breaks. Again the Appellant did not want to do dispatching. The supervisor, Mr Moran, asked Ms Bolam to despatch and she replied that the Appellant and she were on the same line and so the Appellant could do it. But the Appellant did not want to do it, and Ms Bolam apologised to Mr Moran because she thought she was "a bit out of line for doing that." Ms Bolam said that it seemed that the Appellant had "lost her nerve to do it, because it can be quite stressful," and Mr Moran asked her to relay that information to the Professional Development Officer, Ms Kennedy.
[111]According to Ms Bolam, Ms Kennedy "seemed to recoil a bit" when she relayed that information. Ms Kennedy said that it was very different to what the Appellant had told her, that Ms Bolam "kept jumping into despatch." Ms Bolam was asked by email to write a report of what had happened, which she did on 23 May 2009 (Exhibit 11).
[112]By the time Ms Bolam arrived at work the following day, Ms Johnson was shadowing the Appellant "to get her back up to speed with the being able to despatch."
[113]When asked about her email complaint in May 2009, the Appellant said that from 2009 she was aware of a grievance procedure at QAS. Although she contacted the relevant phone number for complaints about bullying or harassment, she did not go any further because, she said, she was "a little bit intimidated" by the process. She felt it was better to go through her manager, and did so in relation to the complaint on 2 September 2009 (see Stressor 3). She acknowledged that in her communications with Ms Kennedy as Professional Development Officer in May 2009, she complained about Ms Johnson and Mr Bennett.
[114]Ms Kennedy gave evidence that she and Mr Peatey addressed the Appellant's complaint in May 2009 that CCS Moran told EMD Johnson to shadow the Appellant. There was no issue about the Appellant's dispatching competency. Ms Kennedy was unaware of anyone telling the Appellant she was incompetent. According to Ms Kennedy, it was not the practice not to advise EMDs if they were being shadowed. Rather, once EMDs were signed off as competent, they should have been advised they were being shadowed. In these circumstances, it would not have been Ms Johnson's decision and, there was nothing in the subsequent emails (Exhibit 10) to indicate that Ms Johnson or Ms Bolam behaved unreasonably toward the Appellant.
[115]A meeting was held on 29 May 2009 involving the Appellant, Mr Peatey, Mr Moran and Ms Kennedy. Ms Kennedy took notes of the meeting at which there was some discussion about the Appellant's concerns about dispatching. Ms Kennedy recalled Mr Peatey advising the Appellant that the CCS had authority to move staff around in the room at his discretion, and that at the end of the meeting the Appellant advised that when she returned to her console she felt much better having had the discussion.
[116]The Appellant recalled telling others at the meeting that she felt she was being watched the whole time and if there were issues with her competency then there were avenues to address that, rather than having a peer ("who was my equal") to be sitting beside her and shadowing her. There should have been some sort of mentoring program if she was having competency issues.
[117]The Appellant recalled being told that there was not an issue with her competence. She was offered assistance and support with dispatching if she needed it, and an opportunity to sit with Ms Kennedy that day and go through any problems or issues that the Appellant had. The Appellant declined that offer, said she was confident in her role and did not have any problems. She advised the meeting that any allegation that she was trying to get out of dispatching was wrong, and any comment to the contrary was a misinterpretation. The Appellant agreed, however, that as at the end of May 2009 she lacked confidence in dispatching. She said that was because she was not getting sufficient exposure. The Appellant also recalled that, at that meeting she was advised that Mr Moran had authority to move staff at any time in his role as supervisor. In her view, if people such as Mr Moran and Ms Johnson were trying to assist her to achieve confidence and experience, "I should have been left to dispatch as I was rostered."
[118]The Appellant agreed that the complaint arose because she was not happy with how Mr Moran allocated duties to her. When it was put to her that it was reasonable that people with more experience would try to assist her by advising how things should be done better, the Appellant replied:
"I'm signed off as competent. No, I didn't expect that to happen."
and
"My understanding is that I was signed off as competent. I'm on the same level as them. If there was an issue with my competency, then the professional development officers should have addressed it with me." (T 3: 7)
[119]The Appellant agreed that she had a discussion in May 2009 with Mr Moran to the effect that she lacked confidence because she was not getting sufficient exposure in relation to dispatching. She said she was unaware that, in assisting her with dispatching (including by shadowing her), Ms Johnson was doing what Mr Moran had told her to do. The Appellant stated:
"She wasn't supposed to be assisting me…. I am a competent - I was signed off competent EMD. … If there were issues with my dispatch, I should have been spoken to by the professional development officer. That, I believe, is the protocol. Nobody had advised me that there were any issues with my competency in dispatch." (T 3: 11-12)
[120]The Appellant raised her grievance, and other issues were discussed. According to the Appellant the outcome of the meeting was that there would be changes in the communications room, there would be definite dispatching and call taking roles with people allocated to a particular seat, the roster would be changed, and the CCS could choose to move people for good reason. The Appellant recalled that after the meeting she advised that she was feeling much better having had the discussion.
[121]Although change to the roster arrangements was implemented after the meeting on 29 May 2009, the Appellant seemed to suggest that it did not apply to her and that Ms Johnson continued to harass her. She gave an example of coming to work one night in September to dispatch on Wide Bay. Someone was sitting on her seat, and Mr Moran said she would not be dispatching that night but would be on call taking. By the Appellant's account:
"I said to him, 'Well, I'm not getting enough exposure. I want to dispatch.' Anyway I just went and sat in a seat. I just said, 'Don't worry.', Went and sat in a seat. I went on my meal break and I came back and Mel said to me, 'You can dispatch.', And the rest of the night was - I may as well not have been dispatching. She was changing decisions, overriding my decisions, then at quarter past 5 in the morning I had a job for a Kawana crew and it was not normal to ring the station, but she rang the station and I overheard her saying, 'I'm not dispatching, but I've been told to watch Jan.'" (T 1: 74)
[122]According to Ms Johnson, she could not recall having any issues with the Appellant between May 2009 and a complaint against her in September 2009. In her assessment, the two women were "completely professional" during the period after the shadowing incident.
[123]On 2 September 2009, the Appellant sent a written complaint about bullying to Mr Peatey, and a copy to Ms Kennedy. The Appellant thanked both of them for meeting with her that morning regarding "my being bullied by Mel Johnson." The Appellant referred to a "horrible few months" and stated that she should have raised the issue sooner but had hoped it would resolve itself. According to the complaint, the bullying became obvious not long after the Appellant was signed off as a dispatcher when they argued about Ms Johnson telling the Appellant to upgrade a dispatch and the Appellant refused. Mr Kropp became involved and apparently confirmed the Appellant's assessment. The Appellant wrote:
"From then on it has been constant belittling, talking behind my back and even in front of me which I just tried to ignore. It got to the stage I doubted my ability to dispatch and trust myself; I didn't trust my training and really felt I couldn't do the job. Mel has since isolated, humiliating, tormented, excluded, undermined and ridiculed me in the Comms Centre and outside." (Exhibit 35 E9)
[124]The Appellant asserted that Ms Johnson manipulated and encouraged the situation to have her removed from despatching one day and took over the role, and then told people that Scott had refused to work with her. She referred to another dispatch incident (described above), and continued.
"Over the last few weeks she has got really nasty, making comments to others in the centre talking behind my back, rolling her eyes or pulling faces if I talk. In the last few weeks I noticed when I was dispatching on Sunshine Coast she didn't pass information or messages onto me." (Exhibit 35 E9)
[125]The Appellant described Ms Johnson's behaviour as potentially "dangerous and compromising to me, my work colleagues and QAS and could have a serious impact on both patient and crew safety." She suggested that Ms Johnson did not realise the seriousness of her behaviour. However, it was affecting the Appellant personally, her home environment, and her relationship with her daughter. She referred to having "sleepless nights stressing" and getting "terrible headaches and backaches due to the stress. I felt worthless, depressed and incompetent and wondered when I would be getting a tap on the shoulder to say you are out." She had no energy and had taken sick days to avoid the conflict.
[126]Having realised that the situation could not continue, but would not go away on its own, the Appellant spoke with Mr Peatey and Ms Kennedy. The Appellant concluded:
"Already after speaking with you and Jenny this morning, I feel so much better. I am a good EMD, although there is always room for improvement and learning, and I believe that if there was an issue, I would certainly hear from either you or Jenny. Putting aside all of this, I love my job and achieve a high level of satisfaction. I will no longer waste time worrying about or tolerating Mel doing what she is doing and I will now stand up for myself and knock it down straight away. I know that as a result of this complaint, it will probably be worse, but at least it is out in the open and maybe it will also help others who are subjected to this appalling behaviour. Thank you again." (Exhibit 35 E10)
[127]When giving oral evidence and asked to provide examples of how Ms Johnson was "really nasty" to her, the Appellant said that:
(a) Ms Johnson would "frequently" make negative comments about the Appellant to the person sitting next to her when the Appellant walked past them (although she could not recall details about the comments other than that one included "incompetent");
(b) when the Appellant joined in a conversation at the Communications Centre, Ms Johnson would either roll her eyes or change the subject, or talk over her and turn to talk to her people so that the conversation moved away from what they were talking about;
(c) Ms Johnson was not abiding by the policy about bullying issued by the Director-General of Emergency Services (Exhibit 2). (T 1:74-77)
[577]The effect of the medical evidence for this appeal: The Appellant submits that, given the concessions made by the Respondent, the medical evidence is largely irrelevant. While that might be correct in relation to the nature of the injury, the evidence relating to the possible cause of the injury remains relevant to whether the exception in s 32(5) of the Act operates. In other words, the medical evidence supports the conclusion that:
(a) the Appellant suffered from a psychiatric injury; and
(b) the psychiatric injury arose out of, or in the course of, the Appellant's employment.
[578]The question is whether the medical evidence assists the Commission in determining whether the psychiatric disorder arose out of, or in the course of:
(a) reasonable management action taken in a reasonable way by the employer in connection with the Appellant’s employment; and/or
(b) the Appellant's perception of reasonable management action against her.
[579]As the preceding summary of Dr Pavey's evidence indicates, the Appellant's psychiatric injury did not represent an aggravation of pre-existing conditions. Rather, the Appellant had experienced significant depressive symptoms for at least one year with the symptoms worsening toward the end of her active employment. Although the Appellant went into great detail about the "numerous incidents of perceived victimisation at work" and gave "lots of incidents" of having been bullied from at least 2009, Dr Pavey did not write everything down because she was treating a mental illness and did not need to know all those details. The effect of that evidence is that the Appellant experienced, or at least perceived, numerous incidents to which she reacted. But there is little information from Dr Pavey about individual instances or categories of behaviour. The examples referred to by Dr Pavey include:
(a) people giving the overall impression that the Appellant was incompetent or no good at her job (which was very upsetting for her because she took enormous pride in her job and felt that she did it in an excellent way);
(b) Ms Bolam who, as acting supervisor, was "lording over" the Appellant;
(c) insulting emails (specifically the "What the ??????" email) being distributed by acting up supervisors;
(d) the Appellant feeling undermined at work;
(e) issues (particularly and perhaps primarily her complaints) not being handled according to correct procedures.
[580]The Respondent's submission notes that the medical evidence has not identified which stressors caused the Appellant's psychological condition. Consequently, it is not clear whether management action (reasonable or unreasonable) or other events in the workplace, or a combination of them, gave rise to the injury.
[581]In particular, the Respondent submits that, when being cross-examined, Dr Pavey conceded that:
(a) she was virtually reliant on the history of the patient unless she had some collateral history;
(b) she had no independent verification about whether the reported incidents had occurred at the workplace;
(c) she did not think she had been told (or did not recall being told) about the Appellant's application for a supervisor's role or being unsuccessful in obtaining that role in September 2011;
(d) she didn't know about any feedback after the Appellant did not get the job as supervisor;
(e) the Appellant did not tell her that she had received low compliance scores in two calls in March 2012, which were related to life-threatening situations;
(f) it was the Appellant's perception that she was being unjustifiably "crucified" or criticised;
(g) she could make no comment on whether there had been completely reasonable management action taken in relation to the Appellant;
(h) she agreed that if there were genuine issues of competence being raised and the Appellant felt she may not be competent and her job may be under pressure, this would create a sense of loss and this was compounded in her case because the Appellant felt she was excellent at her job;
(i) she did not know whether she had been told about the Appellant making a formal complaint to QAS in August 2012, which was under investigation;
(j) she was unaware that the Appellant had complained to her general practitioner in 2008 about stress in her previous job;
(k) it was symptomatic of depression to ruminate about everything, including perceived unfairness and injustice;
(l) she did not get any information about the Appellant's interpersonal relationships prior to the alleged events.
[582]Those particulars listed in the Respondent's submission, confirm that, in effect, the medical evidence contributes little to the resolution of the central issue in this case. That is in no way a criticism of Dr Pavey. It is simply a reflection of the extent to which her evidence can assist the Commission to decide whether s 32(5) of the Act operates in relation to this appeal.
[583]I note, however, that although the Appellant told Dr Pavey about incidents going back to 2009 (and possibly 2008), Dr Pavey's evidence is that the Appellant had experienced significant depressive symptoms for at least one year (i.e. from mid to late 2011) and that the symptoms had worsened over the last month or so of her time at work. That evidence supports a finding that, however dispiriting the perceived personal slights or victimisation were in 2009, they did not cause or were not a significant contributing factor to the Appellant's psychiatric condition. It is also relevant to note that Dr Pavey stated there were "no other significant stresses apart from the focus of the WorkCover claim of bullying and harassment by supervisors in the workplace." Dr Pavey's evidence was that a range of workplace incidents (which the Appellant characterised as bullying, and much of which she characterised as insinuations that she was incompetent) cased this "episode of mental illness."
Submissions about reasonable management action
[584]As noted earlier, the central issue in this appeal is whether the Appellant’s injury was withdrawn from the category of compensable injuries by operation of s32(5) of the Act because her psychiatric disorder arose out of, or in the course of:
(a) reasonable management action taken in a reasonable way by QAS in connection with the Appellant's employment; or
(b) the Appellant's perception of reasonable management action being taken against her.
[585]The general legal principles in relation to s 32(5) of the Act are set out earlier in these reasons (see Reasonable management action). The parties’ submissions in relation to individual Stressors were considered in relation to those Stressors.
[586]Appellant's submissions: The Appellant submits that the behaviour of the main protagonists (Ms Bolam, Ms Johnson and Mr Eva) related primarily to their interpersonal relations with the Appellant and not "management." Because the majority of instances, whilst involving co-workers and others who might be the Appellant's superiors, did not occur in the context of management action but represented workplace bullying, the exemption in s 32(5) does not apply.[45]
[45] See Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision < Appellant submits that it is clear that over a long period she was experiencing conflict in the workplace due, for example, to:
(a) a chain of events starting when the Appellant and Ms Beaumont had conflict in early 2009;
(b) the friendship between Ms Beaumont and Ms Bolam, leading to Ms Bolam perpetuating behaviour which she conceded represented a different managerial style to the style she used with other staff.
[588]In the alternative, the Appellant submits that if s 32(5) applies then "reasonable" management action was not taken. In support of that submission, the Appellant states that:
(a) the Appellant was "shadowed" by Ms Johnson in early 2009 without her knowledge, leading to understandable confusion, conflict and stress. This situation could have easily been addressed with appropriate communication. There are no policies or procedures to cover shadowing (Stressor 1);
(b) the Appellant's request on 9 December 2009 for a change of the roster (so that she did not need to work on the night shift crew where she was being isolated and bullied) was not allowed;[46]
[46] Note, however, that the Appellant gave evidence that her request was granted: see Stressor 3.
(c) despite managers including Mr Eva, Mr Peatey, Mr Broomfield and others being made aware on a number of occasions that the Appellant was suffering from work-related stress which was affecting her health in 2009, 2010 and 2011, reasonable steps were not taken to address the underlying difficulties with the conflict in the workplace between the Appellant and others;
(d) Mr Eva denied the Appellant the right of a support person during an important meeting (Stressor 28);
(e) Mr Eva insensitively conveyed to the Appellant that she was not to be considered for the Frontline Management course (Stressor 12);
(f) Mr Eva was insensitive in the way that he had Mick Byrnes remove the Appellant from her duties on 24 February 2012 (Stressor 16);
(g) Mr Eva flagrantly disregarded the Policies and Procedures in respect to managing unsatisfactory performance in the way that he dealt with the Appellant on numerous occasions.
[589]The Appellant's submission also refers to the "inept management" of Mr Eva including, on a number of occasions, mishandling things like:
(a) permitting supporting persons to be present during meetings;
(b) giving appropriate notice of meetings;
(c) scheduling meetings between the Appellant (as a person who had made a bullying complaint) and Ms Bolam (who allegedly had exhibited bullying behaviour) in circumstances where the Appellant was not given prior notice;
(d) mishandling the process of the implementation of a PIP; and
(e) advising the Appellant that she was being placed on a LSP.
[590]In the Appellant's submission, Mr Eva had quite an authoritarian management style. He was dismissive of policies and procedures, and made it clear that he considered that managers had power to do things in the way they thought fit even when the policy and procedure about performance management specifically directed managers not to use their own system. Indeed, the Appellant goes so far as to submit that Mr Eva "rode rough shot" over policies and procedures. That approach would necessarily bring him into conflict with the Appellant, who was so heavily focused on policies and procedures. She submits that it can be accepted that Mr Eva's actions were not reasonable.
[591]Although her submission refers to specific events, the Appellant submits that the Commission is entitled to consider the actions of management in a "global" way. The submission refers to the statement of Hall P that it is entirely appropriate to take a global approach with respect to issues that occur over a period of time in the workplace and it is not necessary for the hearer of fact to be "forced" to "tease out the transactions and series of events said to have brought about the injury."[47]
[47] Delaney v Q-COMP Review Unit (2005) 178 QGIG 197; see also Waugh v Simon Blackwood (Workers' Compensation Regulator) & anor [2015] ICQ 028, [42].
[592]As to what is "reasonable" management action, the Appellant submits that:
(a) it cannot be reasonable for a manager to act in a way that is contrary to the policies of the workplace;
(b) the test of reasonableness must be assessed in respect of the particular worker[48] and, in this case the employer was bound to have regard to the Appellant's displayed coping levels.
[48] WorkCover Queensland v Kehl (2002) 170 QGIG 93.
[593]The Appellant concedes that if overall it is found that management played a role in the injury, then s 32(5) may apply.[49] However, the Appellant also relies on a statement by Deputy President O'Connor in Abbey Emma Holt (Westpac Bank) v QCOMP that the authorities support the approach that an appellant may succeed in a claim for compensation "based on any event or stressor that does not arise or occur in the course of reasonable management action taken in a reasonable way."[50]
[49] Q-COMP v Glen Rowe (2009) 191 QGIG 67.
[50] Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision < [106].
[594]Respondent's submissions: The Respondent submits that:
(a) the Appellant has not identified which, if any, Stressors she alleges fall outside the scope of "management action;"
(b) most of the Appellant's Stressors refer to actions of more senior officers (acting or substantive) in their roles of supervising and directing the Appellant;
(c) the alleged Stressors which are arguably not management action (Stressors 1 to 4 and 25) will not be proven.
[595]The Respondent submits that the Appellant would not accept the role of the supervisors, and made serial complaints about them. Although she made complaints about bullying, none of them were substantiated. The Appellant also complained about the monitoring and supervision that was required of the supervising staff.
[596]The Respondent further submits that, in relation to each nominated Stressor, the balance of the evidence is that the Appellant's allegations are not true or are inaccurate perceptions of management performing its reasonable and responsible role in the circumstances of a Communications Centre for QAS. In specified instances, there may have been flaws, blemishes and imperfections in the delivery or manner in which this reasonable management action was applied. However, the Respondent submits, that does not prevent the exclusion in s 32(5)(a) and (b) applying.
[597]In reply to the Appellant's submissions that "reasonable" management action was not taken, the Respondent submits that:
(a) the "shadowing" of the Appellant by Ms Johnson occurred on one occasion in May 2009, the evidence supports a finding that this action was reasonable (in view of the Appellant's lack of confidence and her supervisor's role to support her and safely run the Communications Centre), and there is no evidence that this event caused or contributed to the Appellant's psychological condition;
(b) the Appellant gave evidence that she asked Mr Peatey to remove her from night shift because of ongoing problems that she was having with certain people during the night, and she believed the request was granted;[51]
[51] See T 1: 89.
(c) the evidence established that when the Appellant raised issues in 2009 and 2011 the matters were investigated and resolved by facilitated discussions, no other evidence was adduced about what problems the Appellant was allegedly experiencing or what further action was sought or taken, and there is no evidence that the Appellant was suffering a psychological condition at that time or that the psychological condition diagnosed in 2012 arose out of incidents at that time;
(d) the allegation that Mr Eva denied the Appellant the right of a support person during an important meeting would not be established on the evidence because the Appellant chose not to have a support person is at other meetings, and there is no causative link between this alleged incident and a psychological condition;
(e) if the information about the Frontline Management course was "insensitively conveyed," this constitutes a blemish in the way in which reasonable management action was taken;
(f) if the manner in which Mr Eva as RMC removed the Appellant from duties in Patient Transport Services was "insensitive" (which is denied), this was a mere blemish in the way in which reasonable management action was taken;
(g) the evidence does not support a finding that Mr Eva "flagrantly" disregarded policies and procedures on "numerous" occasions.
Consideration and conclusion
[598]Although it is appropriate to consider the actions of management in a "global" way, it is also appropriate to commence that assessment by reference to the numerous Stressors that formed the basis of how this appeal was conducted including to note how many involved management action. As will be apparent from the consideration of those Stressors earlier in these reasons for decision, I had regard to the individual submissions made in respect of each Stressor and the other submissions summarised immediately above. Those Stressors were considered in detail earlier and it is not necessary to repeat in detail the findings in relation to them.
[599]It is sufficient to note in relation to the 26 Stressors about which evidence was given that:
(a) all but six of the Stressors[52] involved management action;
[52] Stressors 2, 3, 4, 7, 10 and 25.
(b) of the 20 Stressors involving management action, four Stressors[53] were not proved;
[53] Stressors 13, 14, 26 and 28.
(c) of the 16 Stressors that were proved, 15 were found to involve reasonable management action (although in relation to five of those Stressors[54] there was a blemish in the way part or all of the action was taken) and hence are excluded by operation of s 32(5)(a) of the Act; and
[54] Stressors 1, 5, 6, 12 and 16.
(d) of the six Stressors that involved personal disputes in the workplace, three Stressors[55] were not proved.
[55] Stressors 2, 3 and 10.
[600]Considering the actions of management in a "global" way, it is apparent that, while the approach taken by individual managers was not perfect, it was explicable and defensible having regard to the circumstances at the time including the nature of the work and the individuals involved. In some instances, deviation from slavish adherence to SOPs and other policies or guidelines in particular circumstances was appropriate. For the most part the other imperfections in process or implementation can properly be characterised as blemishes. They do not negate the operation of s 32(5) of the Act.
[601]In response to other of the Appellant's submissions, I am satisfied that the managers at the QAS usually acted reasonably in light of the Appellant's displayed coping levels. In particular, there was evidence that the relevant managers approved or expressed a willingness to support the Appellant taking leave after particular incidents in the workplace about which the Appellant was concerned, and directed her to Priority One (a service that she used).
[602]To the extent that the Appellant maintains an assertion that management failed to deal adequately with her complaints (listed in [85]), evidence summarised in relation to relevant Stressors demonstrate that:
(a) management investigated and/or held meetings in relation to many of her complaints; and
(b) the Appellant said that she felt better after or was happy with the outcome of at least some of those actions.
[603]Although the underlying issues were only partly resolved or temporarily assuaged, and (as Dr Pavey records) the Appellant was not content with outcomes that did not vindicate her, I am not satisfied that management failed to make appropriate attempts to deal with the issues that she identified.
[604]The only Stressors that were proved (in part or in whole) and which are not excluded by operation of s 32(5) of the Act are:
(a) Stressor 4 (Mr Fisher was rude to the Appellant, prompted by rumours about the Appellant in the Workplace) – 29 January 2010;
(b) Stressor 7 (Ms Bolam yelled at the Appellant) – 5 August 2010;
(c) Stressor 15 (Mr Eva made a disparaging statement about but not to the Appellant) – on or about 21 October 2011;
(d) Stressor 23 (Ms Bolam sent an incorrect and offensive email) – 2 July 2012; and
(e) Stressor 25 (the Appellant was upset by the "Hurt Feelings" skit poster) – 19 July 2012.
Details of the behaviours and the context in which incident occurred are set out earlier and need not be repeated.
[605]Given those findings, it is appropriate to consider whether the reasons for the decision of Deputy President O'Connor in Abby Emma Holt (Westpac Bank) v Q-Comp[56] ("Holt") affect the outcome in this present appeal. Two aspects of that decision are relevant:
[56] Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision <
(a) the distinction drawn between action taken by management and action taken by a co-worker;[57] and
[57] Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision < [103]
(b) the circumstances in which a worker's appeal might succeed when the Commission is satisfied that only some of the alleged stressors have been proved.
[606]As to the first aspect, O'Connor DP referred to the statement about what constitutes management adopted by Vice President Linnane in O'Brien v Q-COMP,[58] quoted earlier in these reasons. O'Connor DP characterised many of the stressors in Holt as actions taken by co-workers and hence actions to which s 32(5) of the Act did not apply. It will be apparent from my findings in relation to each Stressor in the present appeal that I have drawn a similar distinction in respect of some of them.
[58] O'Brien v Q-COMP (2007) 185 QGIG 383, 401.
[607]As to the second aspect, O'Connor DP wrote: "The authorities support the approach that the Appellant may succeed in a claim for compensation based on any event or stressor that does not arise or occur in the course of reasonable management action taken in a reasonable way"[59] (emphasis added). As Hall P stated in Q-COMP v Glen Rowe,[60] a passage quoted by DP O'Connor in Holt, "However, 'may' cannot be read as 'must'," and the Commission is not "at liberty to allow a claimant to succeed where at least one stressor does not '… arise or occur in the course of reasonable management action taken in a reasonable way'."
[59] Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision < [106].
[60] Q-COMP v Glen Rowe (2009) 191 QGIG 67,
[608]In Holt, O'Connor DP found that the incidents identified by the Appellant (namely, the inappropriate comments made about her appearance and weight) could not properly be described as reasonable management action taken in a reasonable way and consequently would not trigger the operation of s 32(5) of the Act. The combination of those incidents would lead to a situation in which the Appellant could no longer cope, and there was medical evidence that it was reasonable to draw a causal relationship between the alleged workplace harassment and the development of the Appellant's psychological symptoms. Furthermore, the conduct of a manager not to investigate allegations made by the Appellant was held to be a clear failure to perform his management functions and could not be categorised as reasonable management action taken in a reasonable way.[61]
[61] Abby Emma Holt (Westpac Bank) v Q-Comp (WC/2012/44) - decision < [105], [99], [100[, [130].
[609]The facts and findings in Holt are quite different from the facts and findings in the present appeal. In this case, a substantial majority of the Stressors involved management action and I have found that, of those Stressors that were proved, most were reasonable management action taken in a reasonable way.
[610]Having regard to a range of factors, including the relative significance of those Stressors in the context of the totality of the Stressors and Dr Pavey's evidence, I am not satisfied that those five Stressors would have been sufficient to cause the Appellant's injury. Consequently, the appeal cannot succeed by reference only to those Stressors.
[611]Although, as a consequence of those findings, the appeal must necessarily fail, I acknowledge that the Appellant has held ongoing grievances in relation to some of her co-workers and managers. By reference only to the evidence in this case, it would appear that at least some of those grievances were based on misunderstandings of particular exchanges or misperceptions of the reactions of other people to her. Other grievances arose because of personality differences and clashes that occur commonly in workplaces. I accept that those differences exist and that some consequent interactions have caused distress to the Appellant. However, they do not provide a sufficient foundation for success in this appeal.
Orders
[612]For the reasons given above:
(a) the appeal is dismissed
(b) the decision of the Workers' Compensation Regulator is confirmed
(c) the Appellant is to pay the Respondent's costs of and incidental to the appeal to be agreed or, failing agreement, to be the subject of further application to the Commission.
[613]Order accordingly.
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