Kosior v State of Victoria
[2014] VMC 25
•29 OCTOBER 2014
| IN THE MAGISTRATES COURT OF VICTORIA |
AT MELBOURNE
WORKCOVER DIVISION
Case No. E11440763
| BARBARA KOSIOR | Plaintiff |
| v | |
| STATE OF VICTORIA (Department of Education and Early Childhood Development) | Defendant |
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MAGISTRATE: | S GARNETT |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 2, 3, 6 & 7 OCTOBER 2014 |
DATE OF DECISION: | 29 OCTOBER 2014 |
CASE MAY BE CITED AS: | KOSIOR v STATE OF VICTORIA |
REASONS FOR DECISION
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Catchwords: S 109 Rejection: adjustment disorder with mixed anxiety and depression - s 82 (2A) relied on – issue whether ‘management action’ taken on reasonable grounds and in a reasonable manner – Teacher at Special Needs School: incidents leading to questions being raised as to her health status – Counselling meeting - Performance and Development Review – medical examination arranged with non qualified medical practitioner – incapacity for work with pre-injury employer – limited claim. Defendant’s reliance on s 82 (2A) not successful – evidentiary onus not satisfied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Ryan | Nowicki Carbone |
| For the Defendant | Mr J O’Brien | IDP Lawyers |
HIS HONOUR:
1 Ms Kosior commenced employment as a Special Needs Teacher at Eastern Ranges School in 2005 when it was situated in Wantirna. In 2013, the school relocated to Ferntree Gully. During the relevant period it had a student population of between 95 and 135, with a Principal, two Assistant Principals and a staff of 20 teachers and 20 assistant teachers. Prior to the relocation, the school catered for students from Prep to Grade 6 and after it relocated it catered for students from Prep to Grade 8. Evidence was given that the average class size was between 4 and 6 students depending on the complexity within the student mix.
2 Ms Kosior lodged a workcover claim dated 23 April 2013 alleging that she had sustained an anxiety condition and depression as a consequence of; “unreasonable treatment, victimisation, harassment and intimidation by her work superior over the past 12 months”.
3 Ms Kosior became incapacitated for work on 8 February 2013 as a consequence of her condition and it is agreed between the parties that her entitlement to weekly payments, if her claim is successful, is limited to payments from that date until 6 January 2014 on the basis that as from the latter date she had a capacity to return to pre-injury employment but not at Eastern Ranges. There is a consensus of medical opinion from Dr Dhillon, General Practitioner, Dr Little, Psychologist, Dr Kaplan, Psychiatrist and Dr Krapivensky, Psychiatrist, to the effect that Ms Kosior has developed an adjustment disorder with mixed anxiety and depression which has arisen out of or in the course of her employment.
4 The defendant rejected her claim for compensation pursuant to s 109 of the Act on 30 May 2013, by reliance on s 82 (2A) and s 102. At the hearing the defendant withdrew its reliance on the special defence contained in s 102.
5 Ms Kosior gave evidence and the defendant called evidence from Ms Preston, Principal, Assistant Principals Ms Bortoli and Mr Glare, Ms Everon, who was Ms Kosior’s direct supervisor and Ms McEacheron, her teacher’s aid. The parties tendered numerous documents and medical records and reports.
6 In essence, the issue for the court to determine is whether the ‘management action’ taken by the employer was based on ‘reasonable grounds’ and undertaken in a ‘reasonable manner’.
7 Ms Kosior gave evidence that she is 61 years of age and has been employed as a teacher for 36 years. She said that she commenced employment at Eastern Ranges in 2005 which is a special education school consisting of children from 5 to 12 years of age who are suffering from autism, intellectual disabilities of various severity and challenging behaviours. The evidence of all witnesses indicated that a number of issues arose during 2011 and 2012 which ultimately culminated in a meeting occurring between Ms Kosior, Ms Preston and Ms Everon on 2 November 2012 whereby Ms Preston recommended to Ms Kosior that she attend her family doctor for cognitive/memory testing.
8 The issues and chronology of relevant events are;
a. March 2011: incident where student attempted to leave classroom via a window and was prevented from doing so by Mrs Kosior;
b. 26 May 2011: positive Performance and Development Review by Ms Bortoli;
c. end of 2011: allocation of class for 2012;
d. early 2012: Excursion refusal;
e. March 2012: classroom objects removed without knowledge;
f. 22 June 2012: Performance and Development Review by Ms Preston;
g. 2 November 2012: Meeting and discussion between Ms Preston, Ms Everon and Ms Kosior concerning possible health issues affecting Ms Kosior in the performance of her duties;
h. 5 December 2012: negative Performance and Development Review by Ms Preston;
i. 12 December 2012: incident where a child struck his head against a wall;
j. 17 December 2012: letter from Ms Preston to Ms Kosior requesting she attend a medical review by Dr Hughes, Neuropsychologist, on 2 February 2013, in accordance with Ministerial Order 199;
k. 18 December 2012: incident whereby Ms Kosior sustained injury to her kidney;
l. 31 January 2013: letter from Ms Kosior to Ms Preston expressing concern as to the medical qualifications of Dr Hughes; and
m. 2 February 2013: attendance on but non assessment by Dr Hughes.
9 In relation to the March 2011 incident, Ms Kosior told the court that she held onto the child to prevent him climbing out the classroom window and in doing so sustained injury to her left arm. She said that when she informed Ms Preston of this episode she was told not to take any action to stop a child climbing out the window and that the policy was to ring the office and appropriate action would be taken to return him to the classroom so as to prevent her sustaining injury by restraining him. Ms Kosior said she was very concerned about this attitude so the following day she approached Ms Preston again to clarify what she had been told and what the policy was as she was not aware of it. Ms Preston gave evidence that she gave this direction to Ms Kosior in accordance with the Manual Handling Policy which provides that teachers should not put their health and safety at risk which Ms Kosior should have been aware of.
10 Ms Kosior gave evidence that she received a positive mid-cycle performance review by Ms Bertoli in May 2011. The document was tendered which indicated that she had accepted the different challenges from her previous teaching experiences and was developing new strategies in teaching the children under her care. Ms Kosior gave evidence that no issues were raised regarding her performance at that time.
11 She gave evidence that at the end of 2011 she was provided with her class allocation for 2012 which included 5 low functioning students. She told the court that she contacted Ms Preston to express concern regarding her ability to cope with these children particularly having regard to her left arm injury. She said that she received a blunt and unsympathetic response from Ms Preston who said; “that’s your group”.
12 Ms Kosior told the court that in early 2012 she wanted to take her class on an excursion to a nearby park and that permission to do so was refused by Ms Preston on risk management grounds. She said that when she attended Ms Preston’s office to seek permission, Ms Preston leant across her desk and said; “No, because I am worried about you”. Ms Kosior said she asked Ms Preston why she was worried about her but she did not say. Ms Kosior said that Ms Preston’s manner caused her to feel intimidated and fearful and caused her to feel anxious which resulted in sleep disturbance. Ms Kosior said that she approached Ms Preston again two weeks later to find out why she could not take the students on an excursion and Ms Preston told her that she had already given an explanation as to why permission was refused and when she asked Ms Kosior if she remembered and she said “no”, Ms Preston replied; ‘that’s what I mean”. Ms Kosior said that this made her feel very intimidated and worried because Ms Preston obviously was concerned about her. In cross examination, she agreed that she knew excursions were not permitted in Term 1 but said she did not consider a trip to the park constituted an excursion.
13 Ms Preston gave evidence that she refused permission because it was contrary to school policy for excursions to occur in 1st term and secondly a risk assessment had not been performed. She said that after permission was refused by her, Ms Kosior returned the very next day and she gave her the same answer and reasons for refusing permission. Ms Preston said that she found the behaviour of Ms Kosior “odd and unusual”. She said that she did not lean across her desk as suggested by Ms Kosior and she did not tell her that she was “worried about her” as that did not occur until their meeting on 2 November 2012.
14 Ms Preston gave evidence that she first started having concerns about Ms Kosior’s behaviour in mid 2011 on the basis of feedback she had received from other staff. She said that she contacted Regional Office who suggested that they monitor and record any instances of concern. In cross examination, she agreed that she did not communicate her concerns to Ms Kosior in writing until November 2012 and disputed that monitoring of her was akin to surveillance.
15 Ms Kosior gave evidence that in March 2012, her classroom had a number of items removed without her knowledge which caused her to be distressed, harassed and intimidated.
16 Ms Kosior gave evidence that she underwent a mid-cycle Performance and Development review by Ms Preston in June 2012. She said that the outcome was not discussed with her and she received the document after it had been placed in her “pigeon hole”. Ms Kosior said that she had intended to approach Ms Preston to discuss the review because she thought that she was performing quite well but was hesitant to do so because she was “fearful and intimidated” by what had happened in early 2012. The document indicated that a meeting had occurred whereby issues were identified to achieve her personal goals. It also noted that “organisation of curriculum and your classroom is your greatest challenge”. It was suggested that Ms Kosior “practise daily the TEACCH philosophy and autism friendly classroom” and that she “review your performance plan”.
17 Ms Preston confirmed that the Review document was placed in her “pigeon hole” as that was the “process”. She agreed that in hindsight it may have been better to organise a specific appointment to discuss a review if it contains criticism or concerns about the performance of a teacher and she may be seen as being “over zealous”. In cross examination, Ms Kosior agreed that she delayed meeting with Ms Preston to discuss the review and ultimately forgot about discussing it with her.
18 Ms Everon gave evidence that she has been employed as a Leading Teacher at the school for 10 years and the Leading Teacher of Ms Kosior for approximately 4 years. She told the court that during 2011 and 2012 she noticed that Ms Kosior was becoming more forgetful and was having difficulty remembering things. She said that she raised these observations with Ms Preston and Ms Bortoli as she was concerned and a strategy was then put in place whereby she would observe Ms Kosior in the classroom, she would give her classroom strategies when needed and extra class assistants and aids were provided. Ms Everon told the court that on 2 November 2012, a child was suffering an epileptic fit whilst using a grater preparing food with the assistance of Ms Kosior and he began to shake violently and slumped forward whereby she and the teacher’s aid yelled at Ms Kosior to stop what she was doing as she was unaware that the child was experiencing an epileptic fit. Ms Everon told the court that she reported this incident to Ms Preston and a decision was made to have a meeting with Ms Kosior at the end of the day to discuss their concerns. Ms Preston confirmed that after she was informed of the incident she decided, because of its seriousness, that a meeting had to occur to address what had occurred and her concerns about Ms Kosior’s health and abilities in the classroom. In cross examination, Ms Kosior agreed that at the time she was unaware that the child was experiencing an epileptic fit because she was positioned behind him holding his hand whilst he was grating the zucchini. She disputed that she did not respond to the situation appropriately. In cross examination, Ms Everon agreed that she compiled most of the handwritten notes kept on Ms Kosior between February 2012 and February 2013 at the request of Ms Preston. She said that she did not inform Ms Kosior that she was doing it.
19 Ms Kosior gave evidence that she was asked to attend Ms Preston’s office at the end of the day on 2 November 2012. She said that she was not told of the purpose of the meeting nor was she told that she could take a ‘support person’. She said that when she attended, Ms Preston and Ms Everon were present and she was given a piece of paper listing 3 concerns. The document was tendered which stated:
Issues of Concern-
Duty of Care- lack of student supervision and awareness of student whereabouts and health issues.
1. Students missing from the classroom
2. Looking for student who was there in the classroom
3. Lack of awareness of student having seizures, being alerted to this however taking considerable time to process the information.
20 Ms Kosior said that she read the document but was not given an opportunity to justify her actions. She said the meeting lasted 5 minutes and it was suggested to her that she consult with her doctor to “evaluate her response time”. Ms Kosior told the court that she was not listened to, given any opportunity to explain or given any suggestions as to how to fix the problems and that these concerns had not been raised with her at any time before the meeting. Ms Preston told the court that the meeting lasted between 30 to 45 minutes with a full discussion of all of the issues and it concluded with Ms Kosior making arrangements to consult with her doctor to discuss her health issues. Ms Kosior said that following the meeting she made an appointment to see Dr Dhillon on 12 November. The medical records indicate that she attended on 12 November and a history was obtained that she was; “working with difficult kids at school – very low functioning kids who cannot talk – stressed at work – long discussion – concerned re dementia - ? stress related – letter to contact Monash Neurology”. The letter to Monash Neurology was tendered by the defendant. It indicated that she; “presents with symptoms of slow response in processing information”. Ms Kosior said that when she saw Dr Dhillon she showed her the document dated 2 November, she performed “medical testing” and a provided a referral to Monash Neuropsychology but that it “was not her recommendation to go”. She said that when she subsequently saw Ms Preston she told her that her doctor had said that she has “no real worries” to which Ms Preston indicated that she was happy to call Dr Dhillon to discuss the matter. In cross examination, Ms Kosior said that Dr Dhillon had left it up to her as to whether she attended for testing at Monash Neurology because Ms Kosior was not concerned about her memory. In cross examination, Ms Preston told the court that the meeting on 2 November had to occur without warning as the behaviour of Ms Kosior needed to be addressed immediately. She said that it was not appropriate for the issues to be raised with her and then give her time to respond because of the immediacy of the concerns regarding the duty of care to students. Ms Preston said that it was not appropriate to inform Ms Kosior to bring a ‘support person’ as Ms Everon, her direct supervisor, was present for that purpose.
21 Ms McEacheron gave evidence that she has been employed at the school as a Teachers Assistant for 7 to 8 years and her role is to basically act as an “extra set of hands” in the classroom and to follow the teacher’s direction. She told the court that she assisted Ms Kosior during 2011. She said that during that year she noticed Ms Kosior doing odd things such as mistakenly putting her keys in the fridge, thinking that she had put her lunch in the maths cupboard and not being aware that she had milk spilt all over her. She said that she raised her concerns with Ms Everon.
22 Ms Bortoli gave evidence that she has been employed as an Assistant Principal at the school for a period of 4 years. She told the court that she had regular contact with Ms Kosior over this period through her own personal observations in the classroom and during staff meetings every fortnight. She said that she regularly questioned Ms Kosior’s knowledge of developmental practice and her reluctance to adopt and modify programs. She told the court that children with autism perform best in an organised and de-cluttered class. She said that an overcrowding of learning space and disorganisation increase the anxiety levels of the children. Ms Bortoli said that she counselled Ms Kosior on these issues and raised her concerns with Ms Preston and Mr Glare at their meetings. She said that during staff meetings she had noticed a tendency of Ms Kosior to ask questions out of context and raise issues that had already been addressed. She agreed that she had given Ms Kosior a positive performance review in May 2011.
23 Mr Glare gave evidence that he has been employed at the school as an Assistant Principal for a period of 7 years. He said that during this period he had many dealings with Ms Kosior in staff meetings and would occasionally observe her in the classroom. He told the court that he noticed a deterioration in Ms Kosior’s condition during 2011 and 2012. He said that she had become forgetful, disorganised and occasionally missing the point of conversations. He said her classroom was not well organised, lacked structure and was cluttered. Mr Glare told the court that he raised his concerns with Ms Preston and Ms Bortoli. He agreed that he spent less time with Ms Kosior than other teachers because he was more involved in the upper school and she was teaching in the lower school. In cross examination, Ms Kosior disputed the description of her classroom as being “cluttered or chaotic” and described it as being “busy”.
24 Ms Kosior gave evidence that following the meeting on 2 November 2012, she emailed Ms Preston on 7 December requesting details of her concerns about her health as discussed in the meeting. Ms Kosior told the court that she received an email response from Ms Preston that day. The emails were tendered which indicate that Ms Preston listed 7 episodes that allegedly occurred during 2012 relating to Ms Kosior being forgetful. Ms Kosior said that she took Ms Preston’s email to Dr Dhillon and she said the doctor “laughed”. Ms Preston told the court that the examples in the letter were based on the written observations of others that had been compiled on the advice of Regional office and which had been discussed during the year between Ms Everon and Ms Kosior.
25 A further Performance and Development review was conducted by Ms Preston on 5 December which assessed Ms Kosior as failing to achieve 5 out of the 6 professional standards. Ms Kosior told the court that she did not attend the group appraisal meeting because it was her birthday and she was told by Ms Preston that she did not have to attend. In cross examination, she agreed that she had been invited to meet with Ms Preston on a later date but the meeting did not occur because she sustained an injury on 18 December which required time off work. In the Performance and Development Review, Ms Preston commented:
Barbara you have not met the required standards of an expert teacher. There is a distinct mismatch in your planning, the children’s capabilities and what is actually being delivered in the classroom programs.
As discussed previously and an issue of great concern is your duty of care to students. You do not demonstrate an awareness of the risks to students in your classroom environment. Your ability to respond to the students when your attention is brought to the issue is delayed and requires further staffing prompting or intervention to ensure safety and student management.
26 Evidence was given by Ms Preston that this review followed a group assessment which Ms Kosior was meant to attend but had forgotten. She said that later she approached Ms Kosior and said that she would make time to discuss it with her which ultimately did not occur. Ms Kosior told the court the appraisal occurred without input from her and the discussion she had with Ms Preston and others prior to 5 December centred on them moving to the new school location and the collective achievement of goals without individual appraisal. Ms Kosior told the court that she was “shocked” by the review and the fact that she had not been given an opportunity to provide input. Ms Preston said that she did not want to discuss the negative appraisal she had given Ms Kosior in front of others and gave her the document at the end of that meeting. Ms Preston also told the court of an incident occurring on 12 December 2012 when a student under Ms Kosior’s care had hit his head against a wall and she failed to immediately report it to her, or in her absence, to an Assistant Principal, or in their absence to a Leading Teacher. She said it was most important that where head injuries occur immediate reporting and necessary action is taken because many of the children under their care have co-morbid difficulties. Ms Preston said the first she knew of the incident was following an email Ms Kosior sent on 14 December as a postscript comment to another that she was going to report an incident to Ms Everon (but could not find her) where “Lachie banged his head on the wall twice and cracked the plaster……”. In cross examination, Ms Kosior agreed that she was aware of the policy but did not believe the incident needed to be reported immediately as the students head “only cracked” the plaster. She said that she did intend to find Ms Everon to report the matter but she could not find anyone to do so.
27 In cross examination, Ms Preston agreed that at no stage prior to the 2 November 2012 meeting did she arrange for a full and frank discussion to be held between Ms Kosior and others to discuss the concerns that had been expressed regarding her performance and incidents or episodes of questionable behaviour.
28 Ms Kosior gave evidence that she received a letter from Ms Preston dated 17 December informing her of an appointment she had made for her to be assessed by Dr Hughes on 2 February 2013 in accordance with Ministerial Order 199. The letter indicated that the appointment was made following discussions between Ms Kosior and Ms Preston on 5 December following Ms Preston informing her that she had concerns regarding her alertness and the discharge of her duty of care obligations including the incident on 12 December. Ms Preston gave evidence that the assessment was arranged by and on the advice of a Regional Manager and the letter was authored by Mr Best from the Conduct and Ethics Department. In cross examination, she agreed that Mr Best had suggested assessments by a neurologist or psychiatrist but had noted; “however you report that she is bright and cheerful and it seems unlikely based on those observations that her memory loss is a result of a psychiatric condition”. She agreed that the Ministerial Order provided that an employee could be directed to submit to a medical examination by a qualified medical practitioner which does not include a neuropsychologist but said she simply followed the advice of Mr Best from Conduct and Ethics and at the time believed that Dr Hughes was a qualified medical practitioner. She agreed that the direction to attend this assessment caused stress to Ms Kosior.
29 Ms Kosior told the court that on 18 December she sustained injuries to her kidney when she fell onto a bench as a consequence of attempting to prevent a child from leaving the classroom which caused her to be incapacitated for work for a short period and in receipt of workcover payments.
30 On 14 January 2013, Ms Kosior sent an email to Ms Preston informing her that she wanted to discuss the appraisal on 5 December as she was of the opinion that it did not accurately reflect her classroom performance. On 31 January, Ms Kosior wrote to Ms Preston informing her that she would attend the appointment with Dr Hughes but questioned whether he was a registered medical practitioner as required by the Ministerial Orders. On 1 February, Ms Preston responded by letter authored by Mr Best from the Conduct and Ethics department and informed Ms Kosior that Dr Hughes was a Neuropsychologist with expertise in acquired brain injury and neurodegenerative diseases and that he assesses cognitive functioning in patients in respect of memory disturbance, concussion, assessment of thinking difficulties and language disorders. Ms Kosior told the court that she attended the offices of Dr Hughes but when informed that he was not a registered medical practitioner she declined to be assessed by him. She said that it made her “very confused”, that “everything was building up” and she wondered whether “there was an agenda – am I getting older, do they want to get rid of me?”. Ms Kosior told the court that she returned to work but was doubting herself and that by 8 February she could not face going to the school as she had been up all night, had diarrhoea, was vomiting, confused and overwhelmed. She has not returned to any form of work since that date.
31 During cross examination, Ms Kosior denied that she had a poor memory even though it was suggested to her that she could not remember the surnames of work colleagues and at one stage called one of her teaching assistants by the wrong Christian name. She agreed that Ms Preston at all times acted in a professional manner towards her and that she was genuinely concerned about her health and well being. She also agreed their communications between December 2012 and February 2013 were polite and cordial.
32 Ms Kosior provided a history to her treating doctors that she had been harassed, intimidated and treated unreasonably by Ms Preston over a 12 to 18 month period. She told Mr Little, Psychologist, that her relationship with Ms Preston began to deteriorate in 2011 and from that time there were ongoing, repeated, unreasonable and sustained instances of harassment, intimidation and unreasonable treatment of her by Ms Preston. Ms Kosior told Dr Kaplan, Psychiatrist, that Ms Preston had a pattern of creating difficulties for teachers approaching 60 and assumed it was motivated by budgetary considerations. She told him that she was subject to bullying and victimisation by Ms Preston and was targeted in that Ms Preston was mounting a case that she was no longer competent to teach.
Conclusion
33 There is no dispute that the action taken by the employer amounts to ‘management action’ as defined in s 82 (10) of the Act. In particular it would fall within (a), (b), (m) and (n). I accept the evidence of Ms Preston, Ms Bortoli, Mr Glare and Ms Everon that the school hierarchy had genuine concerns about the health of Ms Kosior and her continued ability to be able to teach effectively and to provide the appropriate duty of care to students. In my opinion, the incidents referred to provided a sound basis for the employer to implement the monitoring and review process. It was not submitted that the employer did not have reasonable grounds for undertaking this ‘management action’. The evidence given by Ms Preston, Ms Bortoli, Ms Everon and Ms McEacheron and to a lesser extent, Mr Glare, established that ‘management action’ was required. Where in conflict, I accept and prefer their evidence to that of Ms Kosior as it relates to the incidents occurring and the circumstances surrounding those incidents.
34 Although I found Ms Kosior attempted to give an honest and accurate account of events, I found that her recollection of the timing of events and the particular circumstances of those events to be mistaken. For example, I accept the evidence of Ms Preston that she first told Ms Kosior that she was concerned about her health in late 2012 and not early 2012 as Ms Kosior had said.
35 The evidence does not support the allegation made by Ms Kosior that she was subject to “sustained, unreasonable treatment, victimisation, harassment and intimidation” by Ms Preston over 12 months as alleged by her in her workcover claim form dated 23 April 2013. If it had occurred, as alleged, leading to “agitation, fear, anger, poor sleep patterns, fatigue and low self esteem”, it would be expected that a complaint or report of such behaviour and the symptoms from which she suffered would have been made to a fellow teacher or to her treating doctor during that period. No such report was made and the first time she reported any issues relating to stress at work occurred on 12 November 2012 when she attended Dr Dhillon, following the suggestion of Ms Preston at their meeting on 2 November.
36 I accept the evidence of Ms Preston that she was genuinely concerned about the health of Ms Kosior based on her own interaction and observations of her during 2012, the incidents referred to and the reports made to her by Ms Bortoli, Mr Glare, Ms Everon and Ms McEacheron.
37 I accept the evidence of Ms Bortoli that during 2012 she counselled Ms Kosior concerning classroom technique and methods to improve her teaching performance. I also accept the evidence of Ms Everon that she regularly discussed classroom strategies with Ms Kosior during 2012 in order to assist her in the performance of her duties.
38 I find that having regards to the incidents and the observations made by work colleagues of Ms Kosior during 2012, that it was appropriate and necessary for Ms Preston to arrange the meeting on 2 November 2012, particularly having regard to the circumstances of the incident that occurred that day as reported to her by Ms Everon.
39 I find that the ‘management action’ taken by the employer prior to and on 2 November 2012 was based on reasonable grounds. It was also appropriate for the employer to conduct regular performance and development reviews. The reviews, save and except for the review dated 5 December 2012, were documented after discussion with Ms Kosior. Although the accepted “process” to leave the documented performance and development review in a teacher’s “pigeon hole” is questionable, particularly if it involves criticism, the review process itself is unremarkable and generally involved a group discussion concerning professional standards, performance requirement and achievement of those standards. The review in June 2012 provided positive suggestions as to how Ms Kosior could achieve her goals. Although Ms Kosior said she could not recall discussing her performance in the first half of 2012 with Ms Preston before receiving the Performance and Development document dated 22 June, the document indicated she had a meeting with Ms Preston beforehand and Ms Preston confirmed the meeting took place. I find that the meeting did in fact take place. Ms Kosior told the court that after receiving the document she did not initially discuss its contents with Ms Preston because she was “fearful and intimidated” by her due to previous events. I do not accept her evidence on this issue. She conceded that she did not do so because she “forgot”.
40 Whilst Ms Kosior relied on a number of events that contributed to her sustaining injury, the evidence indicates that the main factors were; the meeting on 2 November, the negative Performance and Development Review dated 5 December and the attempts by her employer to have her assessed by a non qualified medical practitioner to assess her fitness for duty.
41 I find that the employer had reasonable grounds to implement each of these ‘management actions’. I find that it was appropriate for Ms Preston to conduct an urgent meeting on 2 November with Ms Kosior having regards to the history of issues during 2012 and the incident that occurred that day. It was also appropriate for the regular Performance and Development Review to occur in December to enable the employer to provide Ms Kosior with feedback and assessment of her overall performance during 2012. It was also appropriate for her employer to arrange for her to be medically assessed in accordance with law as to her ‘fitness for duty’ because of the employer’s concerns about the state of her health based on the incidents that had occurred during the year. The injury sustained by Ms Kosior was caused wholly or predominantly by these ‘management actions’. The issue is whether each of the actions were undertaken in a ‘reasonable manner’.
42 As I said in Krygsman – Yeates v State of Victoria [1], when considering the “reasonableness” of the action, it is to be considered objectively having regards to all of the circumstances leading to it being taken and the manner in which it is taken in a global context taking into account:
[1] 4 November 2011. Paragraph 35.
(i) that the management action and the manner in which it is taken should not be irrational, absurd or ridiculous but moderate and fair; and,
(ii) the judgement is whether the action taken was done “reasonably” not whether it could have been done more reasonably or in a different way more acceptable to the court; and,
(iii) the action and the manner in which it is taken may be reasonable even if particular steps involved are not; and,
(iv) the action and the manner in which it is taken should be assessed at the time it is taken without the benefit of hindsight, taking into account the attributes and circumstances including the emotional state of the worker.
43 I accept the evidence of Ms Preston that the meeting on 2 November involved a full and frank discussion about her concerns regarding Ms Kosior’s performance and duty of care issues. I accept her evidence that those issues needed to be addressed immediately following the incident occurring earlier that day with the student experiencing an epileptic fit. Although she was not forewarned as to the purpose of the meeting or asked to bring a ‘support person’, I do not accept her evidence that the meeting only lasted 5 minutes and that she was not given an opportunity to respond to the allegations being made. I accept and prefer the evidence of Ms Preston and Ms Everon that the meeting lasted in excess of 30 minutes and that all issues were discussed which ultimately led to Ms Kosior agreeing to see her own doctor to discuss their concerns regarding the state of her health. It is improbable that the meeting only lasted 5 minutes as she said or that she was not given an opportunity to have her say having regards to the issues that needed to be discussed as set out in the document given to her and her acceptance of the need to see her doctor for “medical testing”. I find that the ‘management action’ taken by the employer on 2 November, was not irrational, absurd or ridiculous, but was moderate and fair in circumstances where Ms Preston and others in the school hierarchy had grounds to be concerned about the state of her health and her ability to provide a duty of care to her students. In the circumstances, I do not consider the lack of warning as to what was to be discussed or the failure to inform Ms Kosior that she could bring a ‘support person’ to the meeting leads to a finding that the manner in which the ‘management action’ was taken was unreasonable in all the circumstances. Apart from any personal concerns for her health, the employer also had a duty to ensure that she was medically capable of providing the appropriate level of care to students who suffer from autism and significant intellectual disabilities. Whilst in hindsight it would have been preferable for notice to be given to Ms Kosior as to the proposed contents of the discussion so she was not taken by surprise and for her to have an independent ‘support person’ with her, it does not, in my opinion, render what was otherwise a necessary and reasonable action into action taken in an unreasonable manner.
44 I accept the evidence of Ms Kosior that she was told that she was not required to attend the group appraisal meeting leading up to the Performance and Development Review in December 2012. I also accept her evidence that the appraisal occurred without input from her and that the only discussion she had in a group setting leading up to the appraisal concentrated on issues concerning the relocation of the school to the Ferntree Gully site. This is consistent with the evidence given by Ms Preston that she did not want to discuss the negative appraisal she had made about Ms Kosior in front of others and that she did intend to discuss it in person with Ms Kosior at a later stage. There is no dispute that there is a stark difference between the review conducted of Ms Kosior by Ms Preston in June 2012 and that conducted by her dated 5 December 2012. The general thrust of the review in June was to suggest ways in which Ms Kosior could improve her performance and attain her goals. The review in December was highly critical and assessed her as failing to achieve 5 of the 6 professional standards expected of an expert teacher. Understandably, Ms Kosior told the court she was “shocked” on reading its contents and not being given the opportunity to give any input into it or discuss the criticisms made of her.
45 In my opinion, due to the highly critical nature of the appraisal and the events that had preceded it, it was incumbent on Ms Preston to ensure that she either delayed giving Ms Kosior the Performance and Development Review document until she could discuss it with her in person or she should have ensured that she made time to discuss it with her as soon as possible thereafter to minimize what was obviously going to be an adverse psychological reaction to it by Ms Kosior. The communication of this Performance and Development Review was not conducted in a fair and moderate manner taking into account what had already transpired in the previous 4 weeks and the emotional state of Ms Kosior at the time. She was already aware at that stage that Ms Preston and other work colleagues were questioning her work performance and the state of her health. She was already feeling vulnerable. To simply provide her with a highly critical document without giving her the opportunity to provide input or the opportunity to explain her behaviour and failing to discuss its contents cannot be categorised as reasonable ‘management action’ taken in a ‘reasonable manner’.
46 The final event which contributed to the development of Ms Kosior’s mental injury was the action taken by Ms Preston to arrange the neuropsychological assessment with Dr Hughes. It was an inappropriate appointment to arrange and was without legal authority. It obviously caused significant stress to Ms Kosior as she questioned the medical credentials of Dr Hughes at an early stage. Even after she raised issues concerning the appropriateness of being assessed by him, the appointment was not cancelled. I accept her evidence that this caused her to be upset and “very confused” and that she began to question her work capacity and ongoing viability at the school. The direction by the employer to attend the medical assessment cannot be categorised as ‘management action’ in a ‘reasonable manner’.
47 Accordingly, I find that the defendant has failed to satisfy the evidentiary onus of establishing that the ‘management action’ relating to the Performance and Development Review in December 2012 and the direction to attend the “medical” examination with Dr Hughes was taken in a ‘reasonable manner’.
48 The defendant’s reliance on s 82 (2A) is unsuccessful. Ms Kosior is entitled to weekly payments in accordance with the provisions of the Accident Compensation Act 1985 for the agreed claimed period.
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