Maddison v Simon Blackwood (Workers' Compensation Regulator)
[2014] QIRC 210
•11 December 2014
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Maddison v Simon Blackwood (Workers' Compensation Regulator) [2014] QIRC 210 |
PARTIES: | Maddison, Felicity v Simon Blackwood (Workers' Compensation Regulator) |
CASE NO: | WC/2013/34 |
PROCEEDING: | Appeal against a decision of Simon Blackwood (Workers' Compensation Regulator) |
DELIVERED ON: | 11 December 2014 |
HEARING DATES: | 4, 5, and 6 November 2013 |
MEMBER: | Deputy President Swan |
ORDERS : | 1. The appeal is dismissed. 2. The decision of the Regulator is confirmed. 3. The Appellant is to pay the costs of and incidental to the appeal. |
| CATCHWORDS: | WORKERS' COMPENSATION - APPEAL AGAINST DECISION - decision of Simon Blackwood (Workers' Compensation Regulator) - onus of proof - injury inferred - ongoing disputation between appellant and co-worker - numerous attempts by employer to resolve situation - outside counselling advice sought - no resolution found - reasonable management action taken in a reasonable way by the employer. |
| CASES: | Workers' Compensation and Rehabilitation Act 2003 |
| APPEARANCES: | Ms F. Maddison, the Appellant, in person. Mr F. Lippett, Counsel, directly instructed by Simon Blackwood (Workers' Compensation Regulator), the Respondent. |
Decision
This application is made by Ms Felicity Maddison against a decision of Simon Blackwood (Workers' Compensation Regulator) to reject her claim for workers' compensation.
Background to Application
In 2006, Carers Queensland introduced an advocacy service for its membership and appointed two people to fill that role. Ms Maddison was one of those persons.
Ms Maddison's employment was that of permanent part-time.
At the time of her appointment, the Manager for Carers Qld was Mr Horne who reported to the Chief Executive Officer. In 2009, Ms Cottrell became the CEO.
A member of the advocacy group, Ms Wolski was employed full-time and, after the other initial advocacy co-ordinator left, that position was filled by Ms Kline in November 2010.
By late 2010, Ms Maddison's work hours were that in alternate weeks she worked three days. Ms Kline worked three and a half days including the same days as worked by Ms Maddison. Ms Kline became Ms Maddison's supervisor.
On 26 December 2010, Ms Maddison was involved in a motor car accident. This incident was not work related. As a consequence of this, Ms Maddison sought psychological assistance. Ms Maddison was diagnosed as suffering from Post Traumatic Stress Disorder by a Psychiatrist. Ms Maddison then started having work related difficulties after the accident.
On 17 July 2012, Ms Maddison said she had 'decompensated'. Ms Maddison described herself as having 'decompensated'.
On 26 July 2012, Ms Maddison lodged an application for workers' compensation stating that she had suffered a psychological injury which happened on 23 July 2012.
The symptoms of the injury included palpitations, anxiety and insomnia and she says that these commenced on 17 July 2012. She claimed that the three major causes of this problem were 'vulnerability' arising from the car accident; 'exclusion' in the workplace, and 'bullying, harassment' and a 'breach of confidentiality'.
The Regulator's submission as to the issues to be determined
The first issue relates to whether Ms Maddison suffered an injury in terms of the Workers' Compensation and Rehabilitation Act 2003.
If such an injury occurred, the question was whether employment was a significant contributing factor or whether it was the product of her own personality traits.
The final issue was if employment was a significant contributing factor, whether the relevant management action was unreasonable or was taken in an unreasonable way.
Witnesses Heard
Witnesses heard for the Appellant were:
· Felicity Maddison
· Amanda Hefez - Psychologist
· Owen Pershouse - Psychologist.
Witnesses heard for the Respondent were:
· Debra Cottrell - CEO, Carers Qld
· Brendan Horne - Advocacy Manager, Carers Qld
· Ellen Slater - Senior Counsellor, Carers Qld
· Annette Wolski - Advocate, Carers Qld.
Injury and Medical evidence
The Regulator has submitted that Ms Maddison has not suffered an injury for the purposes of s 32 of the Act. Ms Maddison describes her injury as an aggravation of a Post Traumatic Stress Disorder.
That matter will be considered first by the Commission.
Ms Maddison was stood down from her workplace on 17 November 2013.
On 20 July 2012, Ms Maddison consulted a Psychologist who she had previously seen after her car accident on 26 December 2010. She also visited a General Practitioner on 21 July 2012. That doctor said she should return to her usual doctor. This occurred on 23 July 2012. Ms Maddison obtained a medical certificate which was given to her employer and what was written on that was that she had suffered from a 'medical condition'.
On 26 July 2012, Ms Maddison's General Practitioner issued her with a WorkCover certificate.
There were two Psychologist reports, one from Ms Hefez and the other from Mr Pershouse. Both those Psychologists gave evidence to the Commission.
Dr Oelrichs
The Regulator raised a point with regard to Dr Oelrich's Report being tendered to the Commission.
The evidence shows that when Ms Maddison referred to the Report, the Regulator stated that it would consent to it being tendered because the Report only related to M Maddison's condition as it concerned the car accident.
The Commission also made reference to the Report being in its possession as it was contained within the file given to the Commission upon allocation of the matter and the intention to have the report put into evidence.
There is no suggestion that there was any confusion on anyone's part around the tendering of the Report except to say that it wasn't formally tendered by Ms Maddison. Unfortunately, the debate before the Commission turned to another matter fairly quickly and the Report was not formally tendered by Ms Maddison. Therefore, it was not formally before the Commission.
Ms Hefez
Ms Hefez's notes refer to psychological issues concerning Ms Maddison's car accident, but there are also case notes which included the following:
· 18.01.11 Paragraphs 4 and 5
"There are other ongoing stressors in her life that are exacerbating her emotional state … the most significant of these being stressors at work. Felicity … has found the last 18 months very difficult. She feels that the issue relates not to the workload itself but to the difficult personalities in the workplace. Felicity believes she has been subjected to a bullying campaign run by two people in the workplace…"
The Regulator states that the above entry would show that Ms Maddison's workplace difficulties had existed since around mid-2009. This would be one year before Ms Kline (who is seen by Ms Maddison as the primary cause of her workplace problems) commenced employment with Carers Qld.
· On 15 March 2011, Ms Hefez wrote to Ms Maddison's General Practitioner stating that, "Felicity has the symptoms of post traumatic stress disorder. An identified barrier to her treatment is workplace issues, which appeal to be exacerbating her anxiety levels."
· 01.04.2011 Paragraph 2
"the workplace culture is very tense and she is struggling to get support in regards to some workplace issues with another staff member."
· 06.05.2011
"Felicity reports that she is struggling to get information in regards to the workplace matter. She is a bit confused as to what is her right to redress in regards to the complaint. She has spoken to her Union in regards to advice…".
· 27.05.2011 Paragraph 2.
This refers to her work colleague being on leave, and a mediator having spoken to each person.
· 16.06.2011 Paragraph 2.
This refers to one person at work being responsible for her difficulties and the workplace being more stable because that person was away.
· Paragraph 2.
"She feels that the attempts she has made to resolve the issues have not worked and that the situation is becoming progressively worse."
· 09.09.2011
Ms Kline had sent a formal complaint to Fair Work Australia. Upon hearing this, Ms Maddison went to see the CEO and requested a copy of her complaint.
· 23.09.2011
Ms Maddison mentioned that there was to be a mediation of workplace issues on 4 October 2011 and the impact this was having on her.
· 18.11.2011
Ms Maddison mentioned that there had been a six hour mediation with Ms Kline without any outcome or agreement being reached.
The Regulator stated that is was noteworthy that Ms Maddison did not tell her Psychologist that she had refused to attend a further proposed mediation session.
· 20.07.2012
Ms Maddison advised her Psychologist that there had been many changes at Carers Qld. Restructuring was being discussed and now 'they all work together in the one office'. Ms Maddison stated that this made it much more tense at work.
The Regulator submitted that this case note is extremely important. Ms Maddison said this visit to the Psychologist resulted directly from her 'decompensation' on 17 July 2012. However this particular note started by stating that Ms Maddison had a significant break from counselling. It then states that Ms Maddison is coming back to counselling to review driving and stress related to the accident. She also stated that she wanted to discuss on-going work matters.
The Regulator submits that this note makes it clear that the primary reason for the visit related to the motor vehicle accident. There had been no mention of the alleged trigger event of 17 July 2012 or mention of being unable to work, or mention of any symptoms consistent with anxiety.
There was no subsequent case note dealing with the alleged problems caused by the 17 July 2012 incident.
· On the 18 October 2012 visit, Ms Maddison discussed the mediation which had taken place on 1 October 2012.
· The next note was on 15 November 2012, but its content primarily relates to Ms Maddison and a foot problem she was experiencing.
· The next visit to the Psychologist was on 15 November 2012 where the mediation of 18 October 2012 had taken place.
Summary of Medical Evidence
The Regulator submitted that there was no evidence from Ms Hefez (either documentary or oral evidence) to suggest that at any time in 2012 Ms Maddison suffered an injury arising out or, or in the course of her employment and in respect of which employment was a significant contributing factor.
Ms Hefez's specific evidence under cross-examination was as follows:
· Ms Hefez first saw Ms Maddison in January 2011 and the primary issue related to the car accident which occurred on 26 December 2010.
· Ms Hefez was unable to comment upon Ms Maddison in any way prior to that consultation.
· There were discussions concerning Ms Maddison's return to work. She stated "I think there was identified stressors in the workplace that would have contributed or exacerbated what was happening to you so I think that was an important conversation to have" [T2-66].
· Ms Hefez was of the view that generally for any work related events that Ms Maddison was concerned about, then mediation and/or counselling could be of benefit [T2-67]. Ms Hefez also recommended that Ms Maddison try to talk to those with whom she had problems and to see what could be done to alleviate those issues [T2-69].
· Ms Hefez confirmed to the Regulator that she had never given Ms Maddison advice not to return to work [T2-70].
· Ms Hefez did not provide information to Ms Maddison's employer regarding her psychological state and was not requested to do so by Ms Maddison [T2-70].
· Ms Maddison had not reported to Ms Hefez that she had sought assistance from her employer to have other psychological assessments [T2-71].
· Ms Maddison had never reported to Ms Hefez that she was 'decompensating' at the workplace. [It should be noted that 'decompensation' was the terminology used by Ms Maddison in this matter].
· Ms Hefez had never advised Ms Maddison to tell her employer that she was having difficulties at work [T2-74]. The Regulator said the employer was aware of the difficulties faced by Ms Maddison after her car accident.
· Ms Hefez did not recall Ms Maddison ever stating that she had written to the CEO saying that she had felt unsafe in the workplace [T2-75].
Mr Pershouse's report stated inter alia that there were several diagnostic possibilities relating to Ms Maddison. These included "Dysthymic Disorder, PTSD, Obsessive-Compulsive Disorder, Major Depression Disorder and Personality Disorder". None of these were formally diagnosed as Mr Pershouse would need all available sources of information.
The question of a work related injury general was discussed by Mr Pershouse where he made the following comments:
· "Furthermore, while it is likely that reactive functioning may have been exacerbated by subsequent return-to-work experiences, the quantum of such (exacerbation) is not able to be confidently or validly gauged at this time" [Exhibit 21 point 87].
· "The writer is further advised that "significant difficulties" occurred following Ms Maddison's involvement in a serious motor vehicle accident sometime in December 2010; including subsequent challenges in respect of reintegration to her workplace".
The Regulator states that, at its best, Mr Pershouse's opinion was that employment incidents might have been likely to have adversely impacted upon Ms Maddison's level of functioning after her motor car accident.
However, Mr Pershouse was unable to identify the extent of any impact.
There had been no suggestion by Mr Pershouse that there had been an aggravation or a new injury resulting from employment and there was no commentary that any such adverse impact made any existing injury worse.
Mr Perhouse stated that Ms Maddison had an elevated paranoia scale [Exhibit 21, para 31] and that she was quick to believe that she was being treated unfairly [Exhibit 21, para 33]. Ms Maddison's self- observation was that she was likely to be a hyper vigilant individual who often questions and mistrusts the motives of others [Exhibit 21, para 32]. Her interpersonal style was characterized as being domineering and over controlling [Exhibit 21 para 45].
In terms of anger management Ms Maddison had described herself as not intimidated by confrontation and she may well be verbally aggressive after low level provocation [Exhibit 21, para 51].
The above represents the evidence given (either orally or in documentary form) from those medical practitioners associated with Ms Maddison.
The Regulator states that there is no satisfactory evidence that Ms Maddison suffered a work-related injury. It was not the case from which an injury could be inferred.[1]
[1] Groos v WorkCover Queensland (2000) QID 52; 165 QGIG 106
Section 32(1) of the Act provides:
"An injury is a personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury."
Whether or not a person suffers an injury is a question of fact which usually is determined by medical evidence. After the facts of the situation are known, the determination as to whether or not it is established that a person has suffered an injury pursuant to s 32 of the Act is a matter of law.
In this matter, Ms Maddison had sought to rely upon medical evidence to support her claim.
Ms Maddison had referred in her submissions, and during the course of her evidence, that she had previously been diagnosed as having PTSD after her car accident. That point, made on several occasions, was never disputed by the Regulator nor by employer witnesses. Confirmation of that can be found in Ms Cottrell's evidence at T3-30.
Section 32 of the Act provides that:
(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."
In Groos v WorkCover, President Hall considered the issue of "injury" within the context of medical opinion. President Hall stated:
a. Because one did not meet the threshold on the diagnostic standard, DSM4, as used by specialist Psychiatrists, "that is not the end of the matter".
b. That considering "injury" within the context of the Act is a question of mixed fact and law "on which medical evidence is often helpful, but necessarily not decisive".
c. There was no requirement under the Act that an injury must be determined in that specific manner (i.e. DSM4 threshold), but that the existence of an injury may be inferred in a case where there is no evidence to the contrary.
Ms Hefez frequently in her notes refers to the stress and anxiety suffered by Ms Maddison which was work related. Ms Hefez's notes of 16/06/2011 shows that Ms Maddison's view that her high anxiety levels experienced at the workplace has exacerbated her anxiety from her car accident. Particularly, reference is made to Ms Hefez's correspondence to her General Practitioner that "Felicity has the symptoms of post traumatic stress disorder. An identified barrier to her treatment is workplace issues, which appeal to be exacerbating her anxiety levels" [As cited in para 26].
In reliance on Groos, the evidence shows that an injury may be inferred. The Report from Ms Hefez refers to identified stressors in the workplace that 'would have contributed or exacerbated what was happening…".
From the Report of Ms Hefez; the evidence given by Ms Maddison where I have accepted that she had been diagnosed with PTSD after the car accident; the fact that the Regulator did not challenge Ms Maddison's evidence as to PTSD and the reference to Ms Maddison having PTSD throughout the evidence made by the employer, I have determined that it can be safely inferred that Ms Maddison had an injury which is described as an exacerbation of a pre-existing injury which had arisen out of and in the course of her employment and of which employment was a significant contributing factor.
What requires to be determined is whether the injury suffered by Ms Maddison is withdrawn from the definition of injury because of the operation of s 32(5) of the Act.
However, an injury can be withdrawn from s 32(1) of the Act if the psychiatric or psychological disorder has arisen out of, or in the course of reasonable management action taken in a reasonable way by the employer in connection with the worker's employment see s 32(5).
While the Regulator submitted that Ms Maddison had not suffered an injury, in the alternative it had submitted that s 32(5) of the Act would apply in these circumstances.
The Regulator had determined not to call Ms Kline to give evidence. It is understood that Ms Kline left the employment of Carers Qld around that time.
The following stressors (which are highlighted) have been nominated by Ms Maddison:
Stressor 1 (5 January 2011)
"On 4 January 2011, Ms Maddison advised her supervisor, Ms Kline, of her motor vehicle accident and also later that she was experiencing flashbacks, anxiety and nightmares about the incident.
Ms Maddison had finished work prior to taking Annual Leave on 22 December 2010. Ms Kline repeatedly contacted her by e-mail or phone regarding work related matters.
This occurred with Ms Kline knowing that Ms Maddison had been involved in the accident on 26 December 2010.
On 5 January 2011, Ms Kline telephoned Ms Maddison and told her that she (Ms Maddison) could not act for an existing client as she had just taken another relative as a client. Ms Kline and Ms Maddison argued over the question of a conflict of interest regarding her new client.
Ms Kline continued to try to contact Ms Maddison until told to stop by CEO Ms Cottrell on 12 January 2011."
Ms Cottrell confirmed that she had advised Ms Kline to stop contacting Ms Maddison whilst she was away from work.
In this case, Ms Cottrell took the appropriate action against Ms Kline when advised of the circumstances by Ms Maddison.
Ms Maddison's evidence was that she never asked Ms Kline to stop calling her.
Ms Kline sent emails to Ms Maddison and the evidence shows that the matter related to whether a conflict of interest might be considered in one instance. There followed 6 further emails which the Regulator states simply kept Ms Maddison in the loop concerning her workplace. Another related to Ms Kline's house being flooded.
Ms Maddison agreed, when cross examined, that the content of the emails could not be considered to be harassing and she never advised Ms Kline to desist from what she had been doing [T1-83; T1-42 and T1-45]. The Regulator's view was that the emails were completely innocuous. In its view, Ms Maddison could have chosen not to open the emails.
In considering this evidence, there is no error on the part of Carers Qld in that, when advised, it acted responsibly in ensuring that Ms Kline refrained from contacting Ms Maddison.
Stressor 2 (5 January 2011 to 28 February 2011)
"I was off work throughout this period returning on 28 February 2011. Ms Kline made allegations and statements about me to the CEO and other staff at Carers Qld's Head Office at Camp Hill during the period I was unable to work due to PTSD. When I asked to see the complaints Ms Kline had raised the CEO informed me that it was just gossip. Staff at the Stafford office, where we were then based, were wary of me as were staff at Camp Hill. I was unable to access client files or do any work until Ms Kline and Ms Wolski returned to the office at 2.30pm".
Ms Cottrell did not show Ms Maddison the comments made by Ms Kline. Ms Cottrell said she asked Ms Kline if she wanted to make a formal complaint and she declined to do so.
Ms Cottrell stated that often employees wanted to get something off their chest, and in doing so 'vented' to her and then got on with their work.
Ms Cottrell said that because Ms Kline had not wanted to make a formal complaint, she advised Ms Maddison that there would be no further follow up on Ms Cottrell's part [T3-7].
Ms Cottrell's view was that if she passed on to Ms Maddison and Ms Kline the complaints they had made about each other and the complaints from other persons, she would only be inflaming the situation [T3-8].
None of the above incidents show in any way that Carers Qld was acting in an inappropriate manner. Ms Cottrell was managing a large workforce, but more than sufficient consideration had been given to sorting out the problems associated with Ms Maddison and Ms Kline. A desire not to inflame the situation between the two is a reasonable management action in the circumstances.
Ms Maddison was concerned that she couldn't access her work documents upon her return to work after 28 February 2011.
On that day both Ms Wolski and Ms Kline were working away from the office and did not return until 2.30pm.
In cross examination, Ms Maddison accepted the following propositions:
· Ms Maddison agreed that it was appropriate for the filing cabinets to be locked when the office was not occupied.
· The place for hiding the key had changed since she had last been in the office.
· Ms Maddison also agreed that she had not told anyone at Carers Qld that she would be returning to the workplace on that day.
· Ms Maddison also agreed that the omission to give her advance notice of where the key was located, may have been innocent [T1-25-30].
On this discrete point Ms Maddison's own admissions show that, had she properly considered the matter at the time, she would have accepted the situation for what it was. It was nothing more than an inadvertent mistake. It is surprising that this matter had been raised as a stressor by Ms Maddison.
Stressor 3 (1 March 2011 to 13 April 2012)
"Throughout this period Ms Kline failed to provide me with sufficient work, or gave me work then took it away, rang me at home late at night regarding work matters, made allegations about me that were later found to be unsubstantiated, made derogatory comments about me, talked over me at meetings and in public, interrupted conversations I was having with a third party, ignored directions given to her by the Advocacy Manager Brendan Horne that he would allocate cases, at times refused to speak to me, interspersed with becoming overly friendly and sent unsolicited e-mails to my home. Telephone calls and e‑mails out of hours ceased on 29.2.2012 following outlining my limitation boundaries to Ms Kline in an e-mail.
On 13 April 2012, CQ Advocates team were relocated to an office that all three advocates would share. Previously Karen Kline had her own office and Annette Wolski and I shared an office - Annette and I worked well together. No conflict resolution had taken place. Karen Kline displayed no consideration for her co‑workers and conducted telephone conversations that were so loud that it was impossible to speak with other clients whilst Ms Kline was talking. Despite this being raised as an issue with Karen and Ellen Slater there was no change in behavior."
Given the Regulator's position regarding Ms Kline, there was no challenge as to allegations made by Ms Maddison about her. However, there is the evidence of Ms Slater to consider.
Concerning the move from the Stafford premises to Camp Hill, Ms Maddison was concerned that she, Ms Wolski and Ms Kline would be in the same room. She believed that she and Ms Wolski had a good working relationship, but not with Ms Kline.
It seems reasonable, given the size of the team that they should have stayed together for the purpose of performing their duties. In terms of being located within the one office area, this decision was made by Carers Qld primarily because of limited space.
Ms Cottrell's evidence was that another factor in the decision to place all three in the one room was that Ms Maddison and Ms Kline worked part-time and the likelihood was that they would be in the same room together only for one and a half days each week [T3-7].
Carers Qld also took into consideration that Ms Slater had commenced working for them and she had a background in counselling, holding significant tertiary qualifications in Counselling [T3-76].
The Regulator submitted that was academic as to where Ms Kline and Ms Maddison worked within the workplace as they had managed to conduct much of their behavior when they had previously been in separate offices [T3-76].
Some other complaints made by Ms Maddison in this stressor have been previously considered.
Concerning Ms Maddison's complaint that she had insufficient work to perform, Ms Maddison originally stated in her evidence that she was without meaningful work for months [T1-39, 95]. However when pressed she said it was for a period of one month only. There was no other evidence from any witness on this point and Ms Maddison's corrected evidence suggested she was confused around this point.
It is unfortunate that Ms Maddison was interrupted by Ms Kline whilst having a conversation at a function. This may represent a lack of manners on Ms Kline's part, but nothing more. Unfortunately, in social situations, it is not uncommon for people to talk over and around each other. Rude it may be, unusual it is not. To require that management do something about that situation is unrealistic.
What then transpired was that Ms Maddison and Ms Kline became involved in a heated argument in an office area which could be overheard from the function room. Clearly both persons were acting inappropriately in these circumstances. Ms Slater told them to stop their behavior.
Ms Cottrell asked Ms Slater to draft a letter to send to both Ms Maddison and Ms Kline concerning that behaviour. That was not unreasonable in the circumstances.
On 23 July 2011, Ms Maddison emailed to Ms Slater a medical certificate which had been written by Dr Knapp [T1-69]. Ms Maddison says that less than two hours later she had received a warning letter from Carers Qld.
Ms Slater's evidence was that she had received an email from Ms Maddison on 23 July 2011. Dr Knapp had signed the medical certificate saying that Ms Maddison was receiving some "medical treatment" and would not be able to work for two days.
Ms Maddison in her email to Carers Qld had not specified the type of treatment she was receiving. There was no obligation for her to do so, but it is not unreasonable that Ms Slater believed that it related to general treatment and was not considering anything other than that she would return to work in two days.
Ms Slater said that if she had known that Ms Maddison was not well psychologically on those days, then she would not have sent the letter. I have accepted that evidence.
This is another occasion where there is nothing in the actions of Carers Qld which suggests that they have been unreasonable in their approach to Ms Maddison. If errors occurred, they occurred through lack of knowledge, rather than through some intent on Carers Qld's part to harass or bully Ms Maddison.
Stressor 4 (14 April 2011)
This stressor concerns Ms Cottrell.
· "Did not advise me at the time that Karen Kline lodged a formal complaint about me on 30 August 2011 and has failed to provide me with a copy of that complaint despite my request to be given a copy.
· Ms Cottrell did not inform me that Karen Kline in her complaint to Fair Work Australia had complained about the Advocacy Manager, Brendan Horne, and myself. I was given no opportunity to defend myself.
· Has not addressed my formal complaint dated 12 September 2011 re Ms Kline breaching my privacy and the confidentiality of an Advocacy client.
· Was well aware of the conflict within the Advocacy team when all team members were moved into the one office without conflict resolution having taken place, or without informing the whole advocacy team of the changes of roles within advocacy.
· Prior to my return to work on 23 August 2012 Ms Cottrell declined my request to work from the Stafford Office or from home, despite my having raised on a number of occasions the issue of my feeling unsafe in the workplace because of Ms Kline's repeated behaviours towards me.
· The ongoing conflict had not been resolved."
NoteMany of the Stressors overlapped each other. In this stressor, some of the issues have been dealt with in other parts of the decision.
Ms Maddison became aware that Ms Kline had lodged a formal complaint against her on 30 August 2011 and had failed to provide Ms Maddison with a copy.
However, Ms Maddison was not aware of this until she read the employer's response to her WorkCover claim. That matter should not be claimed by Ms Maddison as a stressor as she knew nothing about it and it could not have been seen as a contributor to her compensation application.
The next complaint related to Ms Cottrell not informing Ms Maddison that Ms Kline had made a complaint to Fair Work Australia. Most of the complaint did not relate to Ms Maddison, but some element of the complaint did. This application by Ms Kline was made on 15 August 2011.
In my view, Carers Qld was not required to show Ms Maddison a copy of Ms Kline's complaint. It was a matter between Ms Kline and Carers Qld. If and when the matter went anywhere before Fair Work Australia, then it was up to that body to determine to whom it should hear from. The Regulator submits that Ms Maddison was at no time a party to those proceedings and she was not called to attend Fair Work Australia.
I am unable to accept that Carers Qld acted inappropriately in terms of Ms Kline's actions. The action was instigated by Ms Kline against Carers Qld.
After that, Ms Maddison said Carers Qld had not addressed Ms Maddison's formal complaint of 12 September 2011 concerning Ms Kline. Ms Cottrell's evidence was that there had been so many complaints made by each person that it became difficult for her to recall when and why some complaints had been made.
An external person (Mr Pink - trained mediator) attended Carers Qld to work with both persons and members of the Advocacy program generally [T3-10].
Mr Pink said he had made some progress with both persons, and that he had encouraged a process to be followed which dealt with key performance indicators and for Mr Horne to "proactively manage conflict as it arose" [T3-11]. All of these issues and recommendations had also been discussed by Ms Cottrell with Mr Horne.
Ms Cottrell said her dilemma was that often there would be complaints from Ms Maddison regarding Ms Kline and vice versa. Each one would be deemed to have been aggressive towards the other.
A further recommendation was made for some voluntary mediation through the Justice Department. A mediation session of some six hours occurred but Ms Maddison did not believe that anything had been resolved. Ms Maddison said she didn't think she wished to be involved in another session.
Ms Slater was appointed as Manager after Mr Horne had left the employment of Carers Qld. Ms Cottrell believed that with her conflict and mediation skills she may have been able to manage the Advocacy team to move forward.
.
Stressor 5 (13 April 2012 to 23 August 2012)
"Ellen Slater informed me that she had taken over Brendan Horne's role. Brendan was the Manager for Advocacy and Karen Kline had been employed as the Advocacy Coordinator. Ellen signed her e-mails as Manager Counselling and Advocacy. Ellen was previously the Senior Counsellor for the Counselling Program.
On 22 May 2012 at a 'clearing the air' meeting of the Advocacy team issues regarding Ms Kline's behaviours were raised by Annette Wolski and myself. I raised the issue of Ms Kline using work hours to take her dog to the Vet - this was a regular occurrence and Ms Kline worked part time. I was informed by Ellen Slater that CQ was flexible with me and my adult children's needs (they both have multiple disabilities including intellectual impairment, are legally blind and have a severe immune deficiency). Ms Kline immediately stated "for those of us who don't have children our pets are our children". I was deeply offended by the statements of Ellen Slater and Karen Kline. Ms Slater stated that she would arrange for conflict resolution to take place asap".
"On 17 July 2012, Ms Kline interrupted a conversation I was having with an invited external service provider. I was speaking at the time. I challenged Ms Kline over this behavior on her return to the advocacy office and we argued. This incident resulted in my lodging a WorkCover claim. It was also eight weeks since Ms Slater had stated that she would arrange conflict resolution."
"On the morning of 23 July 2012 I emailed Ms Slater advising that I was off sick and enclosing a Medical Certificate. Ms Slater e-mailed back an hour later acknowledging receipt of the medical certificate and requesting to be kept informed after my visit to my GP that day. ? hours later Ms Slater sent a warning letter to my home by e-mail."
"On 21 August 2012 Ms Cottrell identified in her response to WorkCover that Ms Slater had been appointed as the Senior Coordinator for Advocacy. At no time to this date had I been informed that Karen Kline was no longer the Advocacy Coordinator and that she had entered into a new employment contract."
The issue concerning the leave arrangements made for Ms Kline and Ms Maddison have been detailed above. Ms Kline wanted to be able to take her dog to the Vet and was permitted to do so by the employer.
It is difficult to see how the comment made to Ms Maddison by Ms Kline regarding her dog could have offended Ms Maddison. For many people, family animals are often a very real part of the family. I am unable to see how Ms Maddison could relate those comments somehow to her children and her need to take time off occasionally to meet their needs. In my view, the inference drawn by Ms Maddison was neither logical nor realistic in the circumstances. It is unsurprising that Ms Slater did not have a conflict resolution meeting 'asap' regarding this matter.
Ms Maddison was concerned because Ms Cottrell had not sought a medical clearance for Ms Maddison to return to work. In my view, it was up to Ms Maddison to obtain such a clearance. The essence of Ms Maddison's claim seems to be centred upon whether the employer was satisfied that she could return to work. From the evidence before me, I am unable to see that Ms Maddison's return to work was anything other than what she had wanted to do. There is no evidence of any demand that she return to work when she did and no coercion obvious on the employer's part.
Ms Maddison referred to the investigation undertaken by Mr Pink and asked Ms Cottrell whether "Ms Kline was the dysfunctional person at that time" because Mr Pink had suggested Ms Kline be the only employee (amongst a small group) who had been required to conform with KPIs.
Ms Cottrell disagreed with this and said that was but one factor of Mr Pink's assessment.
[100]Ms Cottrell stated "the other was around talking to you about anger management and about how to effectively communicate with the team, for Brendan to have more structured team meetings with them. There was a number of recommendations. It wasn't just that one, but that one was specifically in relation to Karen not understanding KPIs" [T3-56].
[101]Ms Cottrell said she recalled Ms Maddison telling her she felt unsafe at work exhibit 12]. Ms Cottrell further stated "I believe that we tried everything possible to resolve the situation between you and Karen and there were times when we wanted things to move faster but there was also a great deal of leave that you had and that Karen had and that the team wasn't available to all meet together for various reasons. I don't believe it was the organisation's fault that it took longer than it should have. It was trying to get everybody to be available at the time."
[102]Ms Maddison continued cross-examining Ms Cottrell about her concerns regarding feeling safe in the workplace. Ms Cottrell stated that for whatever Ms Maddison was complaining about regarding Ms Kline, Ms Kline was making a similar comment about Ms Maddison. In her view "it was a very complex situation".
Ms O'Connor's evidence
[103]Ms O'Connor is a member of the Board of Carers Qld and she is a friend of Ms Maddison's.
[104]Ms O'Connor's limited evidence is primarily as follows:
· That she did not dislike Ms Kline.
· That when Ms Kline was allocating work to the advocates she had not given enough work to Ms Maddison.
· That a client who was contacted by Ms Kline may have been a client of Ms Maddison.
· The Board's decision not to issue Ms Kline with a 'show cause' was a "cover up for the past two years".
· That Ms Maddison should not be told of Ms Kline's complaint to Fair Work Australia was part of a 'conspiracy'.
[105]Ms O'Connor's evidence is noted, but I am not convinced that there have been conspiracies at the hand of Carers Qld as an employer.
Mr Horne's Evidence
[106]Mr Horne worked at Carer's Queensland for nearly ten years.
[107]He held a view that it seemed impossible to resolve the conflict between Ms Kline and Ms Maddison [T2-58]. He said that both women were argumentative.
[108]Mr Horne stated that he noticed after Ms Maddison returned to work after the motor vehicle accident she "would go off the handle a little bit more easily"[T2-89].
[109]After observing these outbursts he counselled Ms Maddison about handling stress in the workplace [T2-89].
[110]Mr Horne said he had known Ms Maddison for many years and felt he would have acted if he thought Ms Maddison was not ready to return to her work duties after her motor vehicle accident.
Action taken by the Employer to resolve workplace issues
[111]In May 2011, Carers Qld engaged an external mediator, Mr Pink to attempt to resolve the differences between Ms Kline and Ms Maddison [T1-99]. His advice was to give Ms Kline KPIs to meet and counselled Ms Maddison about her anger and workplace communication [T3-56].
[112]After Ms Kline lodged her Fair Work Australia application in October 2011, a recommendation was made by that body for mediation between the two. The Department of Justice was recommended as the appropriate vehicle and mediation commenced on 24 October 2011 [T1-42].
[113]After a six hour session, Ms Maddison refused to further participate as Ms Cottrell had said she was not obliged to. One result out of all of this is that both persons refrained from further writing complaints about each other.
[114]Ms Slater replaced Mr Horne who had retired in 2012 and she was both a senior counsellor and a trained mediator.
[115]On 22 May 2012, Ms Slater held a meeting with Ms Maddison, Ms Kline and Ms Wolski in an attempt to resolve the conflict but no resolution was achieved [T3‑79].
[116]It is submitted by the Regulator that everything possible was done by Carers Qld to deal with this issue. It was further submitted that short of dismissing Ms Maddison and Ms Kline it would be impossible to envisage what other approach should be taken.
Conclusion
[117]From the evidence it strongly suggests that Ms Maddison had a propensity to overreact to events in the workplace. When cross-examined on many of the points (which constituted elements of stressors) she often conceded that the issues were not as she had first viewed them [see para 53, 62, 93, 100 by way of example]. In forming this view, I have taken into account Mr Perhouse's evidence of Ms Maddison's character traits.
[118]I have found nothing in the behavior of management and its responses to Ms Maddison's concerns that would equate to unreasonable management action taken in an unreasonable way.
[119]Ms Maddison's injury is excluded by the operation of s 32(5) of the Act because it arose out of or in the course of reasonable management action taken in a reasonable way by the employer in connection with Ms Maddison's employment.
[120]The appeal is dismissed. The decision of the Regulator is confirmed.
[121]The Appellant is to pay the costs of and incidental to the appeal.
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