Kelly v Workers' Compensation Regulator - [2022] QIRC 366

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Kelly v Workers' Compensation Regulator [2022] QIRC 366
PARTIES:	Kelly, Lynette Grace (Appellant) v Workers' Compensation Regulator (Respondent)
CASE NO:	WC/2020/175
PROCEEDING:	Appeal against decision of Workers' Compensation Regulator
DELIVERED ON:	26 September 2022
HEARING DATE:	27, 28, 29 & 30 September 2021
MEMBER:	Dwyer IC
HEARD AT:	Brisbane
ORDER:	1. The appeal is allowed. 2. The decision of the Respondent of 26 November 2020 is set aside. *3. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003* (Qld) is accepted. 4. The Respondent is to pay the Appellant's costs of and incidental to the appeal, to be agreed or, failing agreement, to be subject to a further application to the Commission.**
CATCHWORDS:	WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – psychiatric or psychological injury – Appellant employed as administration officer – allegation that Appellant was bullied by her manager and suffered from anxiety and depression - whether Appellant's injury was excluded pursuant to s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 – whether Appellant's personal injury arose out of, or in the course of, reasonable management action taken in a reasonable way in connection with her employment – management action not reasonable - decision of workers' compensation Regulator set aside
LEGISLATION:	Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32
CASES:	Church v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 031; (2015) 252 IR 461 Qantas Airways Limited v Q-Comp (2006) 181 QGIG 301 Kuenstner v Workers' Compensation Regulator [2016] QIRC 083 State of Queensland v Q-COMP [2010] ICQ 6 Allwood v Workers Compensation Regulator [2017] QIRC 88 Davis v Blackwood [2014] ICQ State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097 Groos v WorkCover Queensland [2008] QIC 52; 165 QGIG 106 Kiesouw v Workers' Compensation Regulator [2017] QIRC 064 Nichols v Workers' Compensation Regulator [2017] QIRC 111 Tuesley v Workers' Compensation Regulator [2021] QIRC 071
APPEARANCES:	Mr M.B. White of Counsel, instructed by Mr P Boyce of Butler McDermott Lawyers for the Appellant Mr S.P Sapsford of Counsel, instructed by Ms O Steele of the Workers' Compensation Regulator

Reasons for Decision

Background to Appeal

This is an appeal against a decision of the Workers' Compensation Regulator ('the Regulator') dated 26 November 2020 ('the decision'). The decision confirmed an earlier decision of WorkCover which rejected the Appellant, Ms Lynette Grace Kelly's application for compensation. Ms Kelly filed an appeal against the decision on 21 December 2020.
Ms Kelly commenced employment with Kokoda Spirit Pty Ltd ('Kokoda Spirit') on or about 1 July 2010. At the relevant time, she was employed as the office manager. Kokoda Spirit provides Australian-led treks and tours of the Kokoda Trail in Papua New Guinea.
Ms Kelly worked for Kokoda Spirit from approximately 1 July 2010 until her employment was terminated on 7 July 2020. She initially worked in a part time capacity as an administration assistant before transitioning into a full-time position as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kelly v Workers' Compensation Regulator

Details

AGLC: Kelly v Workers' Compensation Regulator [2022] QIRC 366
Case: [2022] QIRC 366
Decision Date: 26 September 2022

CaseChat Overview and Summary

The case of Kelly v Workers' Compensation Regulator involved an appeal by Ms Kelly against the decision of the Workers' Compensation Regulator. Ms Kelly, an administration officer, alleged that she was bullied by her manager, leading to anxiety and depression. The key issue was whether her psychiatric injury was excluded from compensation under s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 because it arose out of reasonable management action taken in a reasonable way.

The court needed to determine if the management actions identified by Ms Kelly were reasonable or taken in a reasonable way. The Regulator conceded that Ms Kelly was a worker, sustained a psychiatric injury, and that the injury arose from her employment and management action. The central issue was whether the management action was reasonable or conducted in a reasonable manner.

The court found that the actions of Ms Kelly's manager, Mr Wetherall, between 27 March and 3 April 2020, were unreasonable. The court considered that the management action was not reasonable or was taken in an unreasonable way. Consequently, the decision of the Workers' Compensation Regulator was set aside, and Ms Kelly's claim for compensation was accepted. The court ordered that the appeal be allowed, the Regulator's decision be set aside, Ms Kelly's application for compensation be accepted, and the Regulator pay Ms Kelly's costs of the appeal.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Respondent of 26 November 2020 is set aside.

3. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted.

4. The Respondent is to pay the Appellant's costs of and incidental to the appeal, to be agreed or, failing agreement, to be subject to a further application to the Commission.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In all of the circumstances I accept Ms Kelly's account of the conduct of Mr Wetherall between 27 March and 3 April 2020. I consider the actions of Mr Wetherall in that period to be unreasonable or alternatively, to the extent they might be regarded as reasonable, they were taken in an unreasonable way.Conclusion Having regard to all of the stressors identified by Ms Kelly I am satisfied that she has established a factual basis (to the requisite standard) to support her assertions. I am further satisfied that to the extent that any or all of those stressors are properly characterised as 'management action' that such action was unreasonable, or it was taken in an unreasonable way. It follows that I find that Ms Kelly's claim is one for acceptance. Order I make the following orders:

Ratio Decidendi

Legal Principle Established

In State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator,[8] Deputy President Merrell summarised the relevant principles in respect of the application of s32(5)(a) of the Act:[9][25] The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental. Whether the management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively.[26] Reasonableness does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant. An imperfection in management action may not justify the characterisation of the management action as unreasonable. Management action need only be reasonable; it does not need to be perfect. Instances of imperfect but reasonable management action may, in the appropriate circumstances, be considered a blemish and management action does not need to be without blemish to be reasonable.[27] Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case. It is the reality of the employer's conduct that must be considered and not the employee's perception of the employer's conduct.[28] However, the reasonableness of action by management has to be considered '… in connection with the worker's employment' which requires consideration of all disparate elements which contribute to the injury. In an appropriate case, that consideration may require a global view of the management action to determine if the action was reasonable. However, simply because a large number of stressors are nominated does not mean a consideration of the impact of the stressors on a global basis is justified.[29] Such a global view may be justified where there are repetitive blemishes joined by subject matter, time and personality in a discordant workplace housing.(Emphasis added)[8] [2020] QIRC 097.[9] Citations omitted.Matters not in dispute The Regulator has effectively conceded,[10] for the purposes of section 32 of the Act that:(a) Ms Kelly was a 'worker' within the meaning of s 11 of the Act;(b) On the medical evidence available Ms Kelly sustained a personal injury of a psychiatric nature within the meaning of s 32(3)of the Act;(c) Ms Kelly's injury arose out of her employment, which was a significant contributing factor; and(d) Ms Kelly's injury arose out of, or in the course of, management action.[11][10] See paragraph 6 of the written submissions tendered at hearing on behalf of the Regulator. [11] Ms Kelly contends that only stressors 2, 3 and 4 arise out of management action. Questions for determination in this appeal Given the concessions of the Regulator set out above, the issues for my determination are:· whether any of the stressors are not characterised as 'management action'; and (in respect of any stressors determined to arise out of management action) · whether the injury arose out of, or in the course of, reasonable management action taken in a reasonable way.