Khan v Workers' Compensation Regulator

Case [2023] ICQ 2

INDUSTRIAL COURT OF QUEENSLAND

CITATION:  Khan v Workers’ Compensation Regulator [2023] ICQ 002
PARTIES:  COLLEEN KAY KHAN
(appellant)
v
WORKERS’ COMPENSATION REGULATOR
(respondent)
FILE NO/S:  C/2020/16
PROCEEDING:  Appeal
DELIVERED ON:  24 February 2023
HEARING DATE:  21 October 2020, 8 December 2020
MEMBER:  Davis J, President
ORDER/S:  The appeal is dismissed
CATCHWORDS:  WORKERS’ COMPENSATION - ENTITLEMENT TO
COMPENSATION - EXCLUSIONS - where the appellant’s
superior implemented a Performance Management Plan (PMP)
on the appellant - where the appellant claimed workers’

compensation - where the claim was of a psychiatric or psychologic illness caused by the implementation of the PMP - where the injury was not compensable if it resulted from reasonable management action - where the appellant alleged that the PMP was not imposed in accordance with departmental policy - where WorkCover disallowed the claim

- where the Workers’ Compensation Regulator (the Regulator)

confirmed the rejection of the claim - where the appellant appealed to the Queensland Industrial Relations Commission (QIRC) - where the QIRC confirmed the rejection of the claim - where the appellant appealed to the Industrial Court of Queensland - whether the implementation of the PMP was reasonable management action - whether the QIRC erred in law in so finding

APPEAL AND NEW TRIAL - RIGHT OF APPEAL - SCOPE
AND EFFECT OF APPEAL - where the appellant’s superior

implemented a PMP - where the appellant asserted that the PMP was implemented contrary to published policies - where the appellant submitted that the implementation of the PMP was therefore not reasonable - where WorkCover rejected the

appellant’s application for compensation - where the appellant
sought review of that decision from the Regulator - where the
Regulator confirmed WorkCover’s decision - where the
appellant appealed the Regulator’s decision to the QIRC -

where the hearing to the QIRC was a hearing de novo - where the QIRC dismissed the appeal - where the appellant appealed

the QIRC’s decision to the Industrial Court of Queensland -

where the appeal to the Court was limited to errors of law or jurisdiction except by leave - where leave was limited to cases in the public interest - whether the QIRC ought to have found that the implementation of the PMP was unreasonable because of the initial failure to take into account the policies - whether the function of the QIRC was to determine itself whether the implementation of the PMP was reasonable - whether an error of law by the QIRC was demonstrated - whether leave should be given to argue alleged factual errors

Commonwealth Employees’ Rehabilitation and
Compensation Act 1988 (Cth), s 4
Health Services Act 1991, s 27
Industrial Relations Act 2016, s 407, s 424, s 557, s 565,
s 567
Safety, Rehabilitation and Compensation Act 1998 (Cth)
Workers’ Compensation and Rehabilitation Act 2003, s 5,
s 32, s 540, s 545, s 561
CASES:  Church v Blackwood (Workers’ Compensation Regulator)
(2015) 252 IR 461, followed
Comalco Aluminium Ltd (Bell Bay) v O’Connor (No 2)
(1995) 61 IR 455,…

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Khan v Workers' Compensation Regulator [2023] ICQ 2
Case
[2023] ICQ 2
Decision Date

CaseChat Overview and Summary

In Khan v Workers' Compensation Regulator, the appeal centred on Ms Khan's claim for workers' compensation after she suffered a psychological injury following a workplace incident. Ms Khan, who was employed as an Administration Team Leader at the Townsville Hospital, sustained an ankle injury at work in 2015. She subsequently faced a Performance Management Plan (PMP) implemented by her supervisor, Ms O’Brien, which she argued contributed to her psychological injury. WorkCover initially rejected her compensation claim, citing that her injury resulted from reasonable management action. Ms Khan appealed this decision to the Queensland Industrial Relations Commission (QIRC), which upheld the rejection. Dissatisfied, Ms Khan further appealed to the court.

The primary legal issues before the court were whether the QIRC erred in its consideration of the PMP's implementation and continuation, and if the failure to follow relevant policy rendered the decision unlawful. Ms Khan contended that the PMP was unreasonably implemented and continued, and that its unreasonable nature made the management action unlawful. The court examined whether the QIRC had considered the relevant policy that should have guided the implementation of the PMP.

The court held that while the policy must be considered by decision-makers, a failure to do so does not automatically render the decision unlawful. The court reasoned that whether the PMP's implementation was lawful depended on the specific circumstances and applicable rules. The court found that the QIRC did not err in its consideration of the PMP's implementation, and thus, the appeal was dismissed. The court concluded that the QIRC’s failure to consider the policy was not an error of law but a factual matter, which was not reviewable on appeal.

The final orders of the court were that Ms Khan's appeal against the QIRC's decision be dismissed, with each party to bear their own costs.

Orders

Orders of the court

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Background

Background to the litigation

The current appeal concerns, amongst other things, the scope of review of the various decisions along the process. Background Ms Khan was employed by the Townsville Hospital for many years as a dental assistant. In 2010, she achieved the senior position of Administration Team Leader for Oral Health Services. On 24 October 2015, Ms Khan broke her ankle while at work. She took sick leave and began a gradual return to work in early 2016. By the time Ms Khan broke her ankle, staff shortages at the workplace were putting stress on her. On 23 February 2016, after she had returned to work following her ankle injury, a Performance Management Plan (the PMP) was initiated upon the decision of a supervisor, Ms O’Brien. Ms Khan’s employment was managed until she left the workplace in June 2016. Ms Khan lodged an application for workers’ compensation on 8 August 2016 WorkCover rejected the claim. It is accepted by the Regulator that Ms Khan suffered psychological injury, but it relied on s 32 of the WCR Act to uphold the denial of the claim. That section provides: WorkCover decided that the injury was a result of “reasonable management action taken in a reasonable way”. The Regulator agreed and Ms Khan unsuccessfully appealed the Regulator’s decision to the QIRC.[9] Ms Khan appeals the QIRC’s decision. She raised two grounds: The grounds of appeal are very general but were particularised in Ms Khan’s outline Paragraph 29 of Ms Khan’s written outline precisely identifies the relevant consideration which was allegedly not considered. It is this which is said to vitiate the decision of Ms O’Brien and the three subsequent decisions on review of that decision.[18] I will refer to the consideration so identified as “The Relevant Consideration”. [18] The decision of WorkCover, the decision of the Regulator and the decision of the Queensland Industrial Relations Commission. As to ground 2: “Ground 2: The Learned Commissioner erred in finding that the management of the PMP was reasonable management action (reasons at [429]) 35. The appellant’s case was premised on the alternative conclusions that either the unreasonable implementation or unreasonable continuation and extension of the PMP was a material cause of the appellant’s injury. 36. On appeal, the appellant confines the resolution of ground 2 to the outcome of ground 1. It was not reasonable for the employer to extend a PMP which was unreasonably implemented.” A good deal of evidence was led before the QIRC as to the manner in which the PMP was managed, and findings about that were challenged by ground 2 of the appeal. As those challenges are now abandoned, the only issues on appeal are: For reasons later explained, an appeal to this Court is limited. An appeal may only be based on an error of law or jurisdiction except by leave.[19] By leave, an appeal may be founded upon a factual error. Ms Khan says that if the error she has identified is not an error of law, then she ought have leave to rely upon it as a factual error. [19] Industrial Relations Act 2016, ss 557 and 565 incorporated into the appeal by Workers’ Compensation Some central issues

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There have been various versions of the policy since the policy was originated by Directive 03/99 made by the Governor in Council on 25 November 1999 pursuant to s 27(1) of the Health Services Act 1991. The Health Services Act 1991 has since been repealed. It is unnecessary to consider the history further as the Regulator accepts that the policies were in force and binding upon relevant decision-makers at times relevant to the appeal. Whether a failure to follow the policy renders the decision to implement the PMP a decision contrary to law The Regulator accepts that the PI Policy must be considered by a decision-maker seeking to implement a PMP. A failure to consider a mandatory consideration would render the decision to implement the PMP open to judicial review.[23] Because of relevant statutory provisions, the fact that the decision of Ms O’Brien to implement the PMP might be infected with error is not determinative of the current appeal. [23] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. The decision to implement the PMP is clearly “management action”,[24] so the question Ms Khan submitted that: In support of that submission, Ms Khan cites Dango and Comcare (Compensation).[25] There, the Administrative Appeals Tribunal was considering a claim for compensation under the Safety, Rehabilitation and Compensation Act 1998 (Cth) (the SRC Act). The SRC Act and the WCR Act both provide for compensation for employees injured at work. The SRC Act contains provisions equivalent to s 32 of the WCR Act and in Dango questions arose as to whether the psychiatric injury suffered was a result of “management action reasonably implemented”. In the judgment, Member Parker observed: “… as a minimum the action must be lawful.”[26] [25] [2018] AATA 2898. [26] At [178]. It follows, so argues Ms Khan, that the implementation of the PMP was done without reference to the policy, so the decision was unlawful and therefore was not reasonable management action reasonably taken. In Dango, Member Parker cites, as authority for the proposition appearing at paragraph [32] of these reasons, the decision of Cooper J in Comcare v Chenhall.[27] That case concerned a claim for compensation by a federal police officer. His claim was not available if the injury was suffered “as a result of reasonable disciplinary action taken against [him]”.[28] The case considered the meaning of a term not defined by the legislation, namely “disciplinary action”. In the course of his reasons, Cooper J observed: “The nature of the action which may be taken, and which must be lawful, depends upon the nature of the duties and the rules of conduct or behaviour, and, the means provided for by statute or the common law to enforce them.”[29] (emphasis added) And: “It is not possible, in my view, to say whether any particular conduct [27] Commissioner for the Safety, Rehabilitation and Compensation of Commonwealth Employees v [28] Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth), s 4. [29] At 84. is or is not ‘disciplinary action’ within the meaning of the definition without determining the answers to the three questions posed above, and testing the conduct against the answers obtained to those questions. It follows that the effect to be given to the words is determined in any particular case by reference to the regulatory rules applicable to the employee in question and not by reference to general notions of good order and control of Commonwealth employees. It may well be that the identification of the relevant duty or code of conduct or body of rules applicable to a particular employee operates in such a way that the only lawful disciplinary action which is available under that regime is a punitive sanction available only in cases of proven or admitted misconduct, and that the practical effect is that the operation of the definition is limited to those circumstances. On the other hand, the regime may entitle certain types of action to be taken against employees to enforce discipline where the employer or some designated person has reasonable grounds to believe that an employee has breached or may have breached, or may in the future breach, any duty the employee owes or any applicable code of conduct or rules of behaviour without the requirement that misconduct be proven. However, that result in either case comes not from the construction of the term ‘disciplinary action’ as a matter of English usage in the definition, but as a matter of what conduct may lawfully be taken by the Commonwealth as an employer against an employee to enforce the disciplinary regime so far as it concerns that employee.”[30] (emphasis added) [30] At 84.

Ratio Decidendi

Legal Principle Established

That submission does not address questions of the public interest. All it submits is that the relevance of the policy and whether it was breached was litigated below and that the QIRC did not determine that issue. If that is so, and the failure constitutes an error of law by the QIRC, then Ms Khan will win her appeal. If not, then it is simply a factual issue which is not justiciable on appeal to this Court. There are no public interest considerations. Considerations For reasons which have been explained, the real question on the appeal is whether the QIRC took into account The Relevant Consideration identified in the particulars to the grounds of appeal. The Industrial Commissioner commenced his reasoning by reciting some basic propositions (including that he was conducting a hearing do novo)[41] and then proceeded to summarise the evidence. [41] Khan v Workers’ Compensation Regulator [2020] QIRC 095 at [4]. Firstly, the Industrial Commissioner considered Ms Khan’s evidence, both in chief and in cross-examination. Throughout her evidence, the problems which Ms Khan was experiencing because she was covering reception duties was mentioned. In particular: “[14] Khan described the nature of work undertaken on a daily basis on the front desk at the Kirwan facility being at times ‘just mayhem’. On the issue of telephone calls there were often over 100 phone calls per day and at one point in 2014 there were over 250 calls in a day. Appointments were required to be managed and in particular when someone didn’t turn up they needed to try and fill that spot. The failure to attend rate had been an issue because it would leave a dentist and dental assistant without work for that period. [15] Khan gave evidence about experiencing difficulties managing staff at times, of staff shortages and of engaging with O’Brien regarding the recruitment of more staff. In August 2013 there was dialogue with O’Brien in which Khan informed her of concerns regarding her workload in the following terms: Thank you for showing concern re: my wellbeing. I have on many occasions expressed to you my concerns re: work priorities etc., and I have also advised my work priorities would not be a concern should I be able to work in my own role. A huge percentage of my last 8 months has been covering reception whilst still trying to complete my own duties. The main priority which was continually advised by my previous Manager was manning reception. I have not had the manpower to do this without backfilling myself. I am aware of the EAP program, thank you and will certainly be following this up should the current trend continue. I also have medical conditions which are being maintained. An example of how frustrating it is to be able to fulfil my requirements to even my expectations is I have now spent 1 hour of the 2 hours I have had available today writing this email … to be followed by a meeting with yourself.” Later: “[18] Khan gave evidence that for some time there had been ongoing discussions with O’Brien about workload which were reflected in email exchanges between the two in November 2013. The effect of having insufficient staffing numbers in the reception posed a significant barrier to her completing the Team Leader role. The staff shortages continued up to and including when she left work in June 2016. [19] A number of meetings were held in December 2013 and January 2014 to deal with roster and back filling arrangements for the receptions at both North Ward and Kirwan health campuses. A meeting held on 6 February 2014 generated a file note by O’Brien that recorded: