Michael Rayner v East Gippsland Institute of TAFE

[2007] VMC 8

IN THE MAGISTRATES COURT OF VICTORIA

AT LATROBE VALLEY

WORKCOVER

Case No. W00134486

Michael Rayner	Plaintiff
v
East Gippsland Institute of TAFE	Defendant

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MAGISTRATE:	S Garnett
WHERE HELD:	LaTrobe Valley
DATE OF HEARING:	22, 23 & 24 October 2007
DATE OF DECISION:	8 November 2007
CASE MAY BE CITED AS:	Michael Rayner v East Gippsland Institute of TAFE
REASONS FOR DECISION

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Catchwords: Injury – disciplinary action - “serious and wilful misconduct” - S 82 (2A) Accident

Compensation Act 1985

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Carson
For the Defendant  HIS HONOUR:	Mr Batten

1.  Mr Rayner alleges he sustained a psychological injury, which arose out of or in the course of his employment with East Gippsland Institute of Tafe between 2004 and 2006.

2.  The Institute denies his claim on the basis that he did not sustain an injury, which arose out of or in the course of his employment and, in the alternative, if he did, it was due to his serious and wilful misconduct or S 82 (2A) applies.

Background History

3.   Mr Rayner commenced his employment with the Institute in August 1994 as a Fitting and Engineering teacher. His normal hours of work were 38 hours per week of which up to 30 hours could involve teaching and 8 hours non-teaching. He signed a formal contract on 20 December 1997 and was subject to the Institute’s Code of Professional Conduct. He gave evidence that he would regularly work 50-60 hours per week and that many of the additional hours involved him in obtaining equipment and materials for use by students in class.

4.  Mr Rayner suffered from a number of personal and medical problems over the years in addition to his alleged work related psychological condition. These included; a possible “heart attack” in 1998; coronary surgery in 2000; depression in 2001 for which he was prescribed anti depressant medication, cipramil; cervical spinal surgery and a possible further “heart attack” in 2002; a diagnosis of asthma in 2003; a collapse of uncertain cause in June 2004; stress arising from his father’s illness and hospitalisation in 2004; being hospitalised on two occasions for his asthma in late 2004; a further collapse of unknown cause in October 2005; a severe viral/upper respiratory tract infection in January 2006; a requirement to undergo a colonoscopy in June 2006; his daughter being diagnosed with Type 1 diabetes and concerns about the effects of prednisolone medication he was taking for his asthma resulting in osteoporosis.

Alleged Work Stressors

5.  Mr Rayner gave evidence of a number of work stressors over the years, which he alleges, culminated in him suffering a compensable psychological injury;

- In 2001 he was involved in counselling because of him using inappropriate
language to students;

- He alleged that the Institute lacked administrative support staff to assist with
mundane tasks such as computer entry;

- A lack of funding to enable his department to obtain the appropriate resources
hence the need for him to source the material outside of normal hours.

- Difficulties with his immediate Manager, Mr Hickey, the team leader in that;

o on many occasions Mr Hickey did not immediately respond to his calls and

was not easily contactable;

o he felt uneasy and upset when shown management bonus details by Mr

Hickey;

o he felt terrified when travelling in a car driven by Mr Hickey at 180kph to

attend a meeting in Melbourne;

o a lack of communication between them;
o Mr Hickey denied knowing of Mr Rayners regular attendance at Transfield

Group meetings to the CEO Angela Hutson despite organising for him to attend from 2003;

o he was concerned that some of his meetings with Mr Hickey may have

been taped without his knowledge;

- Being informed in Mid 2005 that he was no longer required to attend
Transfield Group meetings and the CEO would be his replacement;

- He was not informed of the increase in his departments teaching hours target and was under the impression that they had exceeded it and was criticised in front of others for not having achieved the target;

- He was informed that his extended absence on volunteer CFA fire fighting duties during the summer 2003/4 had to be used as annual leave or leave without pay;

- He was “spied on” by Mr Hickey and Mr Cooper when attending a hotel in Sale
on a Friday afternoon which he alleges he was entitled to do as it was in “his
time”;

- Unjustified criticism of him in July 2005 in relation to his training and supervision
of a student;

- The “failings” of a new teacher, Mr Burgess, who he alleged was not teaching
properly and complying with OHS issues;

- He was not given a letter of compliment directed to him for a number of months
after the Institute had received it;

- He was forced to take annual leave at an inappropriate time in late 2005;

- After he returned from leave at the beginning of 2006 he discovered his
personal equipment had been removed from the workshop;

- An OHS complaint lodged by him in early 2006 was circulated to those he was
critical of resulting in him receiving abusive emails from them;

- He was unjustly criticised for leaving his class unsupervised when he returned
late from a doctors appointment despite arranging for other staff members to
replace him;

- Whilst on sick leave in March 2006 he discovered Mr Burgess using his
computer and his office had been left open;

- On returning to the Institute in May 2006, he found his hydraulic equipment had
been removed from the workshop and left uncovered in the open.

6.   After considering the evidence, I accept that many of the issues complained of during 2004-6 did in fact occur. Mr Cooper, the Institutes Manager of Human Resources, supported Mr Rayners evidence that he had complained to him about a lack of administrative support and a lack of departmental funding. In addition, Ms Hutson, Mr Hickey and Mr Cooper all agreed that the Institute had to engage an independent consultant in mid 2005 to review the operations of the engineering department because of “communication issues” within it. The department was not meeting targets, there was staff unrest, and there was an “us versus them” mentality that existed between management and the rest of the team. Mr Hickey conceded the finger was being pointed at him and he had shortcomings as a manager. I also accept that Mr Hickey also had a relationship problem with another team member, Mr Turner and Mr Hickey acknowledged that his relationship with Mr Rayner had broken down by mid 2005.

7.  Although Mr Hickey denied showing Mr Rayner details of the management bonuses and the “speeding incident”, I accept and prefer the evidence of Mr Rayner. I also accept Mr Rayners evidence that Mr Hickey deliberately misled Ms Hutson of his knowledge of Mr Rayner attending the Transfield Group meetings. Ms Hutson also conceded that she probably did criticise Mr Rayner in front of the team in relation to not meeting the teaching target and Mr Cooper confirmed that Mr Rayner complained about Mr Burgess using his computer. Furthermore, Mr Hickey confirmed that Mr Rayner did have a perception over the last three years that management was “out to get him” and that Mr Rayner had regularly complained about being overworked, overloaded and not appreciated. Mr Patten, a teacher in the department since January 2005 also gave evidence that Mr Rayner thought they were all against him and that it was not a good team environment.

8.  Mr Rayner gave evidence that because of a cumulating of events he lacked confidence, had a reduced appetite, his drinking of alcohol increased; he was experiencing sleep disturbance and having family and relationship issues. Mrs Rayner confirmed that her observations of her husband between 2004 and 2006 were that he was becoming more agitated. Mr Rayners evidence was that these symptoms manifested themselves in him being angry, frustrated and easily upset.

9.  It is against this background that the court must also consider Mr Rayners involvement in a number of serious disciplinary issues and their effect, if any, on his psychological condition.

Disciplinary Issues

10.In July, August and October 2001, Mr Rayner received counselling in respect to questioning the integrity of staff and the Institute and using inappropriate language to students. In April 2004, he was counselled in respect to inappropriate behaviour towards a female staff member. In July 2005, he received his first written warning and put on formal notice in accordance with the Institutes Code of Professional Conduct concerning the lack of support he gave to a trainee, lack of record keeping and his general demeanour to a female employer representative from the company where the student worked. Subsequently, he was counselled further in relation to inappropriate use of emails at work and leaving his class unsupervised in early 2006.

11.More importantly, a formal investigation commenced in March 2006 in relation to his behaviour from January 2006, particularly towards Mr Burgess. Evidence was given of him engaging in inappropriate language, bullying, harassment and offensive conduct towards staff and students. In general, most of the allegations put to Mr Rayner were not denied by him.

12.After considering the evidence, I find that after resigning from being a sub team leader of the department in November 2005, Mr Rayner became obsessive, belligerent, and aggressive and had an attitude of “everyone is against me”. The documented criticism of him by his fellow workers, Mr Patten, Gary Widdowson, Dale Dye and Paul Burgess supports this finding. He was an obstructive and destructive influence in the department and, in my opinion, was quite properly subject to the investigation into his conduct and the disciplinary action that occurred. I accept the evidence of Ms Hutson and Mr Cooper that Mr Rayner was aware in March 2006 that an investigation into his behaviour had commenced. I also accept Ms Huston’s evidence that Mr Rayner believed she had “a set against him”. Mr Rayner conceded that his conduct in 2006 was unacceptable and regretful although “out of his control”.

13.The issues to be determined are; did he sustain an injury, which arose out of or in the course of his employment with the Institute? If so, was the injury due to his “serious and wilful misconduct” or, alternatively, did it arise wholly or predominantly from reasonable action taken in a reasonable manner by the Institute to discipline and/or dismiss him or his expectation of the Institute taking such action?

Medical Evidence

14.Mr Rayners treating medical practitioner, Dr Jarman, diagnosed a depressive illness with anxiety symptoms. He gave evidence that Mr Rayners various personal and medical conditions have contributed to his depression including work stressors and confirmed that Mr Rayner was first prescribed cipramil in 2001. He conceded that Mr Rayner did not give him a full account of his behaviour, particularly in 2006 but instead told him on 28 March 2006 that he was, “given a hard time at work, including being bullied and badgered and that his classes were being re-organised with an increase in students and felt the employer was trying to get rid of him”. He also conceded that the worsening of his condition in May 2006 might have been due to the disciplinary process that was underway. He sees Mr Rayner monthly and is of the opinion that his condition has improved and he would be fit for suitable work.

15.Associate Professor Mazumdar, psychiatrist, first treated Mr Rayner in June 2006 and diagnosed that Mr Rayner has Dysthymia with current exacerbation because of work stressors. He gave evidence that Mr Rayner is fit for suitable employment and conceded that he also relied on the history given to him by Mr Rayner concerning work issues.

16.A medical report from Mr Hodgson, treating psychologist, was tendered. He first saw Mr Rayner on 2 June 2006 and has diagnosed he suffers from an adjustment disorder with mixed anxiety and depressed mood. He is of the opinion that Mr Rayner was fit for suitable work in late 2006. The same diagnosis was made by Mr Gill, psychiatrist retained for medico legal purposes by Mr Rayner who consulted with him on 12 February 2007. He is also of the opinion that Mr Rayner is fit for suitable work.

17.Dr Douglas, psychiatrist consulted with Mr Rayner on 31 May 2006 on behalf of Allianz Australia and provided two reports dated 1st and 8th June 2006. He was also of the opinion that Mr Rayner suffers from an adjustment disorder with anxiety.

18.In determining the matter, the defendant urged me to place great weight on the fact that Mr Rayner failed to provide the doctors with full and accurate details of his behaviour from 2004 and in particular in 2006. In determining the claim, I have had regard to the observations and comments made by the Court of Appeal in Palmer Tubes Mills (Aust) and Anor v Semi[1] and City of Brimbank v Halilovic[2]. In Palmer Tubes, at page 448 the Court said; “Moreover, in serious injury applications the credit of the applicant is of great importance, not only directly but also indirectly. For so often, the opinions of medical witnesses or other experts depend upon what they have been told by the applicant and upon the applicant’s behaviour or performance on examination or upon testing. The bona fides of a deponent are best explored in cross examination: Re Smith and Fawcett Ltd (1942) Ch. 304 at 308 per Lord Greene M.R.

[1] (1998) 4 V.R 439.

[2] (2000) VSCA 12.

19.In City of Brimbank, the Court held; “An expert opinion is only as good as the foundation upon which it is based. For such an opinion to be of any value, the facts upon which it is based should be proved by admissible evidence (Ramsay v. Watson (1961) 108 C.L.R.642; Paric v. John Holland (Constructions) Pty. Ltd. (1985) 59 A.L.J.R.844). However, as the High Court pointed out in the latter case, "that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based". It is only the failure to prove data significant to the formation of the opinion, which will warrant its rejection”.”

20.In the present case, although finding that Mr Rayner did not disclose the nature and extent of his inappropriate behaviour to his doctors, there is sufficient evidence, as indicated earlier in this decision, that he had a number of ongoing work stressors which culminated in him suffering from a depressive illness with anxiety symptoms. It appears to me and I find accordingly, that his inappropriate behaviour, particularly in 2006, was due to his depressive illness. In making this finding, I am also of the opinion that the employer acted reasonably and responsibly in taking the disciplinary action against him.

“Serious and Wilful Misconduct”

21.The question of whether a workers conduct constitutes “serious and wilful misconduct” is a question of fact[3], with the burden of proof on the employer to demonstrate that the injury was attributable to the serious and wilful misconduct of the worker.[4] The employer must also show that the misconduct was one of the causes of the injury, and one for which the injury would not have occurred without it.[5]

[3] Johnson v Marshall Sons & Co Ltd (1906) AC 409.

[4] Hall v J & A Brown & Abermain Seaham Collieries Ltd (1953) 88 CLR 509.

[5] See: Millin v Fowler (1926) NZLR 372, McCaffrey v Great Northern Railway Co (1902) 36 Ir LT 27 and Leg

22.Mr Rayners conduct, whilst contravening the Institutes Professional Code of Conduct, does not constitute “serious and wilful misconduct” under the Act, the effect of which would disentitle him to compensation pursuant to S 82 (4). His misconduct was not one of the causes of his injury.

S 82 (2A)

23.Mr Rayners depressive illness with anxiety symptoms arose over a period of time. Although I have found that, he was aware in March 2006 of the investigation into his behaviour, his injury did not wholly or predominantly arise from that process and therefore, S 82 (2A) does not apply. He was experiencing anxiety symptoms from 2004 from a combination of personal, medical and work factors. In May 2006 upon discovering his equipment outside and uncovered resulted in further inappropriate behaviour by him and a worsening of his depressive condition.

ORDERS:

24.I find that Mr Rayner was fit for suitable employment in September 2006 based on his evidence and the evidence of Dr Jarman, Associate Professor Mazumdar and Mr Hodgson. Understandably, he has not been offered suitable employment by the Institute and has made some efforts to find alternate employment subject to medical advice. Accordingly, he is entitled to weekly payments of compensation at the appropriate rate in accordance with the Act together with reasonable medical and the like expenses.

Trap Hotel v Williams (1981) 48 SAIR 45.