Palmer & Ors v State of Queensland
[2015] QDC 63
•27 March 2015
DISTRICT COURT OF QUEENSLAND
CITATION:
Palmer & Ors v State of Queensland [2015] QDC 63
PARTIES:
TANYA PALMER
(plaintiff)v
STATE OF QUEENSLAND
(defendant)and
EDITH HARRIS
(plaintiff)v
STATE OF QUEENSLAND
(defendant)and
SAMANTHA CATHERINE HAYES
(plaintiff)v
STATE OF QUEENSLAND
(defendant)and
PAMELA GREENHALGH
(plaintiff)v
STATE OF QUEENSLAND
(defendant)FILE NOS:
D3224, D3226, D3251 and D3317 of 2012
DIVISION:
Civil
PROCEEDING:
Trial
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
27 March 2015
DELIVERED AT:
Beenleigh
HEARING DATE:
10-21 March, 9 April, 14 August 2014
JUDGE:
McGill DCJ
ORDER:
In each matter, judgment for the defendant.
CATCHWORDS:
EMPLOYMENT LAW – injury to employee – psychiatric injury – employee subject to complaint – investigation of complaint in conjunction with a large number of related complaints – whether duty of care in respect of psychiatric injury
EMPLOYMENT LAW – injury to employee – psychiatric injury – comments by superior – whether such injury a reasonably foreseeable consequence
EMPLOYMENT LAW – injury to employee – psychiatric injury – whether breach of duty – damages assessed
Amaca Pty Ltd v Ellis (2010) 84 ALJR 226 – cited.
Bonnington Castings Ltd v Wardlaw [1956] AC 613 – applied.
Hegarty v Queensland Ambulance Service [2007] QCA 366 – applied.
Henville v Walker (2001) 206 CLR 459 – applied.
Hirst v Nominal Defendant [2005] 2 Qd R 133 – cited.
Hogno v Racing Queensland Ltd [2013] QCA 139 – cited.
Hole v Hocking [1962] SASR 128 – considered.
Hunter and New England Local Health District v McKenna [2014] HCA 44 – cited.
Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64 – considered.
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44 – applied.
Malec v JEC Hutton Pty Ltd (1990) 169 CLR 638 – cited.
Marshall v Queensland Rehabilitation Services Pty Ltd [2012] QSC 168 – cited.
Medlin v SGIC (1995) 182 CLR 1 – cited.
Nationwide News Pty Ltd v Naidu (2007) 71 NSWLR 471 – considered.
New South Wales v Fahy (2007) 232 CLR 486 – cited.
New South Wales v Lepore (2003) 212 CLR 511 – cited.
New South Wales v Paige (2002) 60 NSWLR 371 applied.
New South Wales v Rogerson [2007] NSWCA 346 applied.
O’Leary v Oolong Aboriginal Corporation Inc [2004] NSWCA 7 – applied.
Purkess v Crittenden (1965) 114 CLR 164 – applied.
Queensland Corrective Services Commission v Gallagher [1998] QCA 426 – considered.
Ryan v Ann Street Holdings Pty Ltd [2006] 2 Qd R 486 – applied.
Sullivan v Moody (2001) 207 CLR 562 – considered.
Tame v New South Wales (2002) 211 CLR 317 – cited.
Wicks v State Rail Authority of NSW (2010) 241 CLR 60 – cited.
Wolters v University of the Sunshine Coast [2013] QCA 228 – considered.COUNSEL:
SD Anderson for the plaintiffs
R Morton and N Jarro for the defendantSOLICITORS:
Shine Lawyers for the plaintiffs
Crown Solicitor for the defendant
The plaintiffs were in 2008 working in the Maryborough Office of Disability Services Queensland (“DSQ”), in managerial or administrative positions. In late 2008 and early 2009 there was a dispute in Maryborough where a number of staff complained about a number of the managerial or administrative people in that office. An independent investigation was set up, which ultimately concluded that the complaints were not sustained. The plaintiffs allege that, as a result of the negligence of the people running the office in their treatment of the plaintiffs, they had in the meantime suffered psychiatric injury, for which they claim damages. Liability and quantum are both in issue.
These four proceedings were heard together pursuant to orders that I made, with the evidence being evidence in all of them. The parties agreed on certain facts for the purposes of these proceedings. These are set out in Exhibit 1, and are as follows:
“1.At all times material to the claims of the plaintiffs, the defendant provided disability services in Queensland under the name Disability Services Queensland (“DSQ”).[1]
[1]This was, or operated within, a government department which has had different names at different times, but was at the relevant time the Department of Communities. I shall refer to it simply as “the Department”.
2.The plaintiffs in these matters were employed by the defendant at the Maryborough Service Centre (“MSC”) at all times material to their claims.
3.The plaintiff Tanya Palmer (Ms Palmer) was born on 11 March 1960. She was employed by the defendant as an Administration Officer (Rosters) at the MSC.
4.The plaintiff Samantha Hayes (Ms Hayes) was born on 16 May 1969. She was employed to work as an Administration Officer at the MSC.
5.The plaintiff Pamela Greenhalgh (Ms Greenhalgh) was born on 29 May 1967. She was employed to work as an Administration Officer at the MSC.
6.The plaintiff Edith Harris (Ms Harris) was born on 6 November 1956. She was employed to work as an Administration Officer – Team Leader at the MSC.
7.The plaintiffs are female.
8.Between July 2008 and May 2010 the following events occurred with respect to activities at the MSC which the plaintiffs claim caused them to suffer psychiatric illness.
9.In July 2008 Ms Julie Johnson, a Team Leader for DSQ, made a complaint against Ms Hayes who was in the role of Services Manager, alleging workplace harassment and other issues.
10.In July 2008 Ms Johnson’s complaint was investigated by Lily Simpson (Ms Simpson) who was Acting Senior Manager at DSQ, MSC.
11.Ms Hayes was interviewed by Ms Simpson in July 2008.
12.In early September 2008 Ms Greenhalgh was asked to manage Ms Johnson by her line manager, Brendan Costello.
13.In September 2008 the Acting Director of MSC, Belinda Huig, notified Ms Johnson and Ms Hayes that the complaint by Ms Johnson was not substantiated.
14.On 26 October 2008 Ms Johnson lodged a fair treatment appeal with the Public Service Commissioner.
15.Ms Johnson’s appeal was supported by statements from 25 Residential Care Officers (RCOs) from the Maryborough DSQ.[2]
[2]A copy of the statements became Exhibit 18. I was not referred to any part of this exhibit in submissions and did not in fact look at it, as no need to do so emerged during my consideration of this matter.
16.On 19 January 2009 the complaint was referred to the Crime and Misconduct Commission (CMC) by the defendant.
17.The CMC initial assessment categorised the situation as:
(a) Workplace harassment;
(b) racial discrimination and vilification;
(c) document falsification and destruction; and
(d) maladministration.
18.The allegations were made against nine managers, service managers, team leaders, and an administration officer including [the plaintiffs].
19.In January 2009 Ms Pamela Steele-Wareham, Regional Executive Director, was appointed to oversight a “collaborative change process” for MSC.
20.The CMC referred the complaint of Ms Johnson back to the defendant for investigation.
21.Before the complaint was referred by the CMC, the defendant had determined that if it was referred back to DSQ for action it would conduct “an external and timely investigation”.
22.On 14 January 2009 the defendant by its agent, Ms Steele-Wareham participated in a hearing of the Industrial Relations Commission where Ms Johnson, the main complainant, was allowed to participate and make submissions to the Commission.
23.The defendant made no application to the Commission for any of the plaintiffs to participate in the hearing.
24.On 16 January 2009 the Acting Director General of the Department of Communities, Betty Kill, informed the Acting Secretary for the AWU, Gary Ryan and its advocate, Peter Eldon, that Ms Greenhalgh had been recently permanently appointed to the position of Resource Officer, Specialist Response Service, to commence on 19 January 2009 and that she would not have any line management responsibility for ‘this group of staff’.
25.Additionally, Ms Kill informed Messrs Ryan and Eldon that Ms Hayes’ request for a secondment had been approved in the role of Community Resources Officer in the Maryborough Regional Office from 27 January 2009.
26.Furthermore, Ms Kill advised on 16 January 2009 that Ms Palmer’s duties were changed back to her substantive position as Resource Officer, so as to remove her responsibility for:
(a)Direct contact to and from RCOs concerning the filling of shifts;
(b)linking resource officer rosters around the technical aspects of the roster;
(c)direct communication to RCOs and service managers concerning the filling of shifts;
(d)liaising directly with the manager of MSC concerning any decision making of contentious issues emerging from roster or maintenance tasks.
27.On 18 January 2009 Ms Harris left work until 25 January 2009.
28.On 19 January 2009 the defendant was aware by its agent, Ms Steele-Wareham, that the AWU was planning to hold a protest picket at the MSC.
29.The AWU distributed a notice which claimed the 39 members of the AWU who worked under accommodation, support and respite services made a vote of no confidence in six persons in management positions inside the MSC. The notice named Ms Palmer, Ms Hayes and Ms Greenhalgh as three of them.
30.In February 2009 investigators were appointed and conducted an investigation into the complaint.
31.In March 2009 interviews were conducted with complainants.
32.On 17 March 2009 Ms Palmer left work until 17 April 2009. Ms Palmer was also absent from work from 20 April 2009 to 17 May 2009.
33.On 16 January 2009 Ms Hayes left work at the MSC and did not return.
34.In April and May 2009 interviews were conducted with Ms Harris, Ms Greenhalgh and Ms Palmer. The interviews were conducted by Mr F Albietz and Mr G Smith.
35.On 4 December 2009 Ms Cuskelly and Colleen Bruce were asked by Shirley Witta, Manager AS and RS to attend the house of another Manager, Edith Harris. Ms Cuskelly and Ms Bruce found Ms Harris sobbing on her kitchen floor.
36.Ms Greenhalgh left work between 12 May 2010 and 8 June 2010.
37.On 7 July 2010 Loraine Stokes (Ms Stokes) chaired a meeting with four of the managers who had been the subject of allegations.
38.The parties agree that the defendant is vicariously liable for the acts or omissions of Julie Johnson, Pamela Steele-Wareham, and other staff where those acts or omissions were committed in the course of employment of those persons.”
I am conscious of the fact that these proceedings arise out of a fairly lengthy and heated dispute between management and at least some of the residential care officers (“RCOs”) working for the MSC. That dispute has already been the subject of proceedings in the Industrial Relations Commission, and complaints which related to it have been investigated independently. I am only concerned with the issues that arise in the proceedings brought by the four plaintiffs, but inevitably those issues are closely related to the development and course of that dispute, particularly because there are significant issues in this matter as to the question of causation. However, it is important for me to emphasise that I am only concerned with resolving the matters in issue in this action, and I am not conducting some sort of commission of inquiry into the events at the Maryborough Service Centre.
I am also conscious of the fact that I have had relatively limited evidence, in that there were a lot of other people involved in the broader dispute from whom I did not hear evidence. As I will indicate, the immediate trigger for the dispute appears to have been a particular employee, Ms Johnson. She was not called as a witness; the evidence suggested that she is still working for the Department, although in a different position.[3] The defendant may not have been concerned to defend her position. There may be other explanations. I have in those circumstances not had the opportunity to make my own assessment of her. There are however in evidence a number of documents, including a statutory declaration, which she wrote, and I have read these.[4] To some extent these provide evidence of her position in relation to the dispute, and also seem to throw some light on her personality. In any case, I can only deal with the issues on the basis of the evidence before me.
[3]Hogan p 8-42.
[4]Documents 10 (which includes the original complaint), 13, 16A, 40. Exhibit 2 is a 2 volume bundle of documents made one exhibit: I shall refer to documents in Exhibit 2 just as “document x”.
Background
One of the functions of DSQ in Maryborough was to manage a number of residential homes for persons with an intellectual disability, who as a result needed assistance in caring for themselves. These homes were staffed by RCOs with a Team Leader in charge of several homes. RCOs were rostered so that one of them, and at one home two, would be there at all times. This was necessary to enable care to be provided to the residents. Groups of homes and the RCOs staffing them were then managed by one of two Service Managers at Maryborough, under the control of an overall Manager who at the relevant time was Mr Costello. Ms Hayes, one of the plaintiffs, was one of the Service Managers at the time. She was responsible for managing three of the homes, one of which was a respite care home.[5]
[5]Hayes p 1-33.
Ms Hayes had been in her position since late 2006, initially in an acting capacity.[6] She had joined the service in an administrative role a few years earlier, and had worked her way up. She had not herself worked as an RCO. In her position she had to ensure that the standards and procedures of the service were implemented in the homes she managed. She was involved in the induction of new RCOs, and in the course of doing this she met Ms Johnson when she was inducted as an RCO, and she managed Ms Johnson.[7] She was initially happy with Ms Johnson’s work, and supported her promotion to the position of Team Leader: p 1-35. The relationship soured however in March 2008 when she refused to socialise with Ms Johnson and her husband: p 1-36.
[6]Her permanent appointment was in February 2007: p 1-32.
[7]Hayes p 1-34.
Ms Greenhalgh began to work for the Department in 1994 as an RCO: p 2-53. She then became a resource officer, and then an acting unit manager, a team leader and then an acting service manager. She knew Ms Johnson from 2007 (p 54) and in 2008 she had a couple of issues with her, including in July Ms Johnson’s telling staff that if they had a problem not to go to management and report but to go over their heads: p 2-55.[8]
[8]See also Exhibits 19, 20.
Ms Palmer had considerable experience as an officer handling rostering at the Ipswich office of DSQ: p 3-59. She had worked in rostering for upwards of 10 years, and was quite good at it. She had been involved in developing rostering programmes, and had been sent to various offices to assist them in the implementation of these programmes. She moved to Maryborough in 2007,[9] and found that there were problems with the roster then in place: p 3-60. Given that one or two RCOs had to be rostered to be at each home at all times, there was a system of having a rotating shift pattern for each of the homes, which took into account a number of factors which I need not go into; there was some complexity about the process. There were however not enough permanent RCOs then employed to fill the roster when it was prepared properly, with the difference being made up by permanent RCOs working overtime.
[9]She handled rostering and payroll for the office: p 3-92. The move was prompted by her husband’s work: p 5-46.
At that stage there was quite a lot of overtime being worked, partly because there were not enough permanent RCOs, and partly because the rostering system which had been in use at Maryborough was obsolete: p 3-61. Ms Palmer brought the rostering system up‑to‑date, and there were a number of additional permanent and casual RCOs employed, changes which brought the rosters under control, and the amount of overtime work was significantly reduced: p 3-62. This was beneficial for the budget of the office, but had the consequence that a number of RCOs suffered a reduction in the overtime available for them, and some were unhappy about this.[10] The RCOs also had less control, losing the ability to pick which shifts they would work.[11] In addition the implementation of this roster required some greater degree of flexibility from the RCOs, for example having to work at times at different houses, which some RCOs were unhappy about.
[10]See document 2, p 4, 5; Hayes p 2-51, 52. There was pressure from the department to reduce overtime to cut costs: Smith p 6-22, 23.
[11]Wheldon p 7-45.
About the same time, there were moves within the department to improve the quality of life for the people living in the houses.[12] There was new legislation, which identified this as an objective, and steps were taken to give effect to this, including by monitoring conditions in the homes, ensuring that the progress and activities undertaken by the residents were properly documented, and encouraging them to engage in additional activities. This involved some additional work for, and closer supervision of, the RCOs, which would have been problem for any RCOs who were not conscientious in performing their work.[13] The management structure had changed with the creation of the position of team leader, a position which involved closer supervision of the RCOs as the team leaders would regularly visit the homes.[14] Overall there were a number of changes which could be expected to give rise to some discontent on the part of those who preferred the old ways.
[12]See Harris p 4-66.
[13]Document 2 p 5; Hayes p 4-66.
[14]Smith p 6-23.
Ms Hayes felt that initially she had a good working relationship with Ms Johnson,[15] but said that that changed when she rejected a suggestion from Ms Johnson that they meet socially: p 36, p 2-17. This was not long before the first complaint. Ms Palmer never got on with Ms Johnson whom she regarded as difficult to work with, loud, pushy and overbearing: p 3-65, p 4-24. She filled out a couple of workplace injury report forms because of her behaviour, but nothing changed.[16] Ms Greenhalgh had known Ms Johnson from 2007, having worked with her at times, and described her as not a nice person, with respect to co‑workers, being very vocal and inclined to raise her voice, and tending to stand up so that she could lean over the person she was talking to rather than sit face to face across a desk or a table: p 2-56.
[15]Although as service manager she received a lot of comments from other staff that Johnson was loud and overbearing: p 1-35.
[16]Palmer p 3-65-68; documents 12, 15. There were difficulties getting Johnson to put in proper documentation for leave, etc.
Ms Harris joined DSQ in 1995 as an RCO and became a team leader in about 2007, presumably when the position was created: p 4-54. She was responsible for three houses, with five regular staff plus casuals and relieving staff. After Ms Johnson became a team leader they had workstations together in the MSC: p 4-57. She also described Ms Johnson as being loud, and inclined to talk over people, being a dominant personality, but she said that she had no issues with her until an occasion when Ms Johnson was complaining about her workload, and asked Ms Harris whether she agreed that the workload of team leaders was too great: p 4-58. Ms Harris did not agree and said so, and she said that Ms Johnson appeared hostile towards her from then on. She said that thereafter she found her hard to work with, and that Ms Johnson would not follow established procedures. She spoke to her manager, Mr Costello, about Ms Johnson, but was told in about December 2008 that something would be done and to stop worrying about the matter. Ms Johnson became worse in 2009, angry with everyone, and Ms Harris avoided her: p 4-59. This was not hard, as she was hardly ever in the office. She also complained to Ms Steele-Wareham: p 9-54.
The initial complaint
In May 2008 Ms Hayes took some leave: p 1-36. While she was away, a residential resource officer who had occasion to visit a particular house at La Frantz Drive for which Ms Johnson was responsible complained about the state of the house, particularly in relation to cleanliness. At that stage Ms Hayes’ work was being covered by Ms Greenhalgh, who in cooperation with the manager Ms Chaplin[17] arranged a planning day, that is a meeting, for the team after Ms Hayes returned. At the meeting, held on 21 May 2008, Ms Johnson was very defensive in disputing the detail of the complaint, and critical of the officer who had made it. That this was so is supported by the content of an email from Ms Johnson of 3 September 2008 to Ms Hayes, in response to one of 28 August 2008 complaining that there were aspects of the same house that were still not properly cleaned, and that other matters arising from the planning day had not been addressed: document 13, which is also defensive and aggressive. At that meeting Ms Johnson also complained about the workload she had been given: p 1-37.
[17]She preceded Mr Costello as manager of this unit.
Later Ms Harris took over as the team leader in charge of the house at La Frantz Drive, and found when she did so that the folders and documentation in relation to the residents had not been kept up to date by Ms Johnson, so she had a lot of work to do to bring it all up to date: p 4-68. Ultimately cleaning contractors were brought in to clean the house,[18] suggesting persistent resistance by the RCOs.
[18]Document 73, p 24.
On 8 July 2008 Ms Johnson provided to the regional executive director Ms Steele‑Wareham a written complaint alleging workplace harassment against Ms Hayes: document 11.[19] This complaint went for nine pages, but little of it referred to any conduct by Ms Hayes in relation to Ms Johnson. There was a reference to an occasion when Ms Hayes had spoken to her about an allegation that had been made to her by someone else, in a way which was entirely appropriate; one occasion when she was speaking about RCOs but in a way which could not possibly be interpreted as harassment of Ms Johnson; an occasion in May 2008 when Ms Hayes had been asking her to gather some information required by someone more senior, which was obviously unexceptional; one occasion later in May when Ms Johnson raised a complaint about the workload and was told that that was a management issue and if she had a problem to put it in writing; and that Ms Hayes appeared to become angry when told about problems with morale among RCOs. This turned into an exercise of Ms Johnson telling Ms Hayes how to do her job, but Ms Hayes responded not with harassment but by being silent and walking away.
[19]Ms Steele-Wareham was not the appropriate person to whom to address such a complaint, an example of Johnson not following correct procedures: p 9-20.
There was a good deal of how Ms Johnson felt about things, and things that other people said to her, or other exchanges with Ms Hayes which could not possibly constitute harassment. The only matter referred to in the complaint requiring any real consideration was an incident said to have occurred on 11 June 2008 when Ms Hayes supposedly challenged her about her having criticised Ms Hayes and Ms Greenhalgh behind their backs. According to the complaint Ms Johnson responded by saying that she wanted a complaint in writing, and otherwise objecting to the conversation.[20] If Ms Hayes had been told something to this effect I think it would be natural enough for her to raise it informally with Ms Johnson, and I find it difficult to believe that that could amount to harassment.
[20]Ms Hayes version of the conversation, in document 73 pages 13,14, 20 was significantly different, with Ms Johnson being much more aggressive and Ms Hayes ending the conversation. It strikes me as more plausible, and was supported by a contemporaneous file note: p 21.
The complaint was passed on to someone else,[21] who referred it to Ms Simpson, an acting senior manager, who prepared a report: document 10.[22] According to the report Ms Simpson was asked to travel to Maryborough to further explore the complaint and report on the matters raised: p 8-82. She interviewed 10 staff at the MSC and summarised their responses in attachments to her report. It is apparent from this document, and from the evidence of Ms Simpson, that as an investigation this was very badly handled. No attempt seems to have been made to identify relevant incidents as potential incidents of harassment, or to find out what happened during those incidents, and there was no consideration of whether what occurred amounted to harassment for the relevant purpose: p 8-88.
[21]Ms Steele-Wareham referred it to Ms Davis who was more senior: p 9-66.
[22]The first page of this bears two dates, one at the top “July 2008” and one in a footer “16 September 2008”. For part of the referral process, see document 11.
The then manager was asked about things other than the behaviour of Ms Hayes,[23] and a number of other people were asked whether they had ever been subject to or witnessed workplace harassment or bullying by Ms Hayes; all denied that they had ever seen any such thing. There was an interview with Ms Johnson when she complained about the tone of Ms Hayes’ voice, and about an aggressive look, and also commented about tennis balls being thrown on a wall, although it is not clear whether this was something supposedly done in her presence. According to the attachment to the report Ms Simpson did not ask Ms Hayes about any of the specific incidents referred to in the complaint, but merely asked in a general way about her behaviour in the workplace. As an exercise in investigating the complaint, this was useless.
[23]The complaint was characterised as extending beyond the behaviour of Ms Hayes to some aspects of general management process, and morale.
The report stated that Ms Johnson had the perception that Ms Hayes was undertaking workplace harassment/bullying during their interactions within the workplace, and that Ms Hayes did not consider her behaviour as harassing or bullying. In the summary it was said that Ms Johnson did not provide enough evidence to substantiate “beyond reasonable doubt” that Ms Hayes’ behaviour could be classed as workplace harassment or bullying, which is obviously not the test.[24] Finally she recommended that an investigation into the alleged workplace harassment/bullying be undertaken, which I suppose amounted to an admission that what she had undertaken was not a proper investigation.[25]
[24]Ms Simpson claimed she said this on advice from Human Resources: p 8-88. That seems quite implausible.
[25]She said in evidence she was not conducting an official investigation: p 5-82. If she was not investigating the complaint, there was no point in her doing anything else about it.
One thing she does seem to have achieved however was to leave both Ms Hayes and Ms Johnson with the clear impression that she was upholding the complaint. Ms Hayes said that Ms Simpson came back to the Maryborough office in August 2008, spoke to her and told her that she was upholding the bullying and harassment allegation, on the ground of Ms Johnson’s perception: p 1-39.[26] Ms Simpson denied that she said this (p 8-84), but I prefer the evidence of Ms Hayes, partly because her evidence struck me as generally reliable, and partly because it is clear that Ms Johnson was given the same impression by Ms Simpson, as appears from a document Ms Johnson later wrote, which stated that on 1 August 2008 in a meeting with Ms Simpson she was told that her complaint was substantiated: document 16A. I cannot accept that both parties to the dispute would have obtained the same, incorrect interpretation of the situation if Ms Simpson had in fact said what she claimed in evidence to have said.[27] Given what subsequently happened, and that Ms Simpson obviously made a mess of the investigation, it is not surprising that she would not be frank about the situation. Whatever she was doing, to make any such comments to the parties was gratuitous, inappropriate and very damaging in its consequences.
[26]This would have been wrong, since the test for bullying and harassment is objective: Smith p 6-50; Exhibit 13, Exhibit 14.
[27]Simpson p 8-83 line 1, p 8-85 line 43, p 8-86 line 6. As well, Ms Simpson conceded Ms Hayes became upset when she spoke to her, more consistent with Ms Hayes’ version: p 8-84. That Ms Hayes was quite upset was confirmed by Ms Cuskelly: p 5-67. See Hayes p 1-40.
Ultimately however the complaint was dealt with by someone more sensible; by a letter dated 30 September 2008 both parties were advised that the complaint of workplace harassment or bullying was not substantiated: document 16, Exhibit 8. Other matters raised in the nine page complaint, about management decisions being influenced by relationships and team leader workload, were not substantiated, but a complaint about low morale within RCOs was referred to the manager at Maryborough to be addressed. This came as a great relief to Ms Hayes, who had been most concerned about what she was told by Ms Simpson: she was very upset and had gone home immediately after that conversation: p 1-40. She had foreshadowed an appeal but was persuaded to wait until the formal letter. As well she had asked that a different service manager take over the management of Ms Johnson (p 1-43) and Ms Greenhalgh was asked to do this, although she insisted that another more senior manager be present during any meeting she had with Ms Johnson: p 2-56.
On one occasion after there was such a meeting, and the manager had left, Ms Johnson put her hand on Ms Greenhalgh’s shoulder and said, “Don’t worry, Pam, I’m not after you”: p 2-57. Ms Greenhalgh found this very disconcerting (p 3‑28), understandably because it contained an implied threat that the situation might change. As a result she spoke to her manager Mr Costello, and to Ms Cuskelly: p 2-58. She then arranged for an appointment with the Employee Assistance Scheme (EAS): p 3-30. She said that in fact she had little contact with Ms Johnson after September 2008, when she was supposed to be managing her: p 2-62.
Escalation
After Ms Johnson received the rejection of her initial complaint, she evidently set about canvassing support, in the form of lining up other people, mainly RCOs, who were prepared to criticise Ms Hayes and other members of the management team at Maryborough. She was quite effective at this, helped no doubt by the dissatisfaction within the RCOs at the changes referred to earlier. It is not entirely clear from the material I have seen whether there was one or more than one process of appeal, but one step adopted by Ms Johnson was to give notice of a fair treatment appeal under the Public Service Act 2008: document 16A. This was dated 26 October 2008, but was not the document which led to the major investigation.[28] Ms Johnson provided material from other residential care staff in support of her position. This came to be assessed by the Department’s Misconduct Prevention Unit: document 56.
[28]G Smith p 6-42. In document 78 Johnson referred to lodging it on 18 December 2008, but that seems to have been an error. It was heard on 13 January 2009 and resolved on the basis that the decision on the original complaint was withdrawn and it would be covered by the larger investigation: document 56.
In January 2009 the plaintiffs found out that there had been the further complaint by Ms Johnson. Ms Hayes was told in a meeting on 5 January 2009, and that the complaint related to bullying and harassment, but no other details: p 43, 46, p 2-23. Ms Greenhalgh was also told in January 2009 by Ms Steele-Wareham that there had been allegations made, but only in a general way: p 2-62, p 3-33.
In January 2009 the Acting Director-General was Ms Kill.[29] On 8 January 2009 the head of the Misconduct Prevention Unit of the Department briefed her about the complaints from nine Maryborough staff. He had assessed the complaints and was referring them to the CMC;[30] at that stage he did not assess any significant risk issues with regard to placement of employees: document 20. The Acting Deputy Director-General proposed that the complaints be the subject of an external investigation.[31] Ms Kill agreed with the proposal for the external investigation, in order to be seen to be providing natural justice: p 8-54. Presumably the concern was to remove any appearance of bias.
[29]She has since retired, and gave evidence by telephone from California: p 8-50.
[30]The text suggests that this was separate from the Fair Treatment Appeal. Ms Kill regarded this as a clear case to refer the material to the CMC: p 8-58.
[31]She was not called, but I suspect that this conclusion was based on the number and (superficial) seriousness of the complaints.
Ms Johnson also stirred up the Australian Workers Union which represented the RCOs. The union wrote to the Director-General on 8 January 2009 seeking a meeting about what action the Department was proposing to take about what was said to be a number of witness statements containing various allegations: document 56 p 8.[32] Ms Kill received the letter from the AWU, and she interpreted this as indicating that the union regarded these as very serious matters: p 8-52. There was a meeting between Ms Kill and officers of the Union on 9 January 2009, an event which she said in her experience was not uncommon: p 8-52. The union position was that efforts to deal with the situation thus far had been inadequate and ineffectual and more substantial efforts had to occur otherwise there would be substantial union action. She took the union’s position seriously. Specifically the union wanted a number of staff removed from positions in the Maryborough region.[33]
[32]Document 21 is another version of the letter, dated 10 January 2009, but the letter was sent on 8 February, as appears from the reply. Ms Harris said this letter was sent to the MSC where it was seen by her and faxed on by her to head office at Mr Costello’s direction: p 4-60; p 5-25. Despite p 5-38, I suspect she in fact saw document 37 on 17 January 2009. Document 56 p 8 has the fax number obscured, but document 21 has a Brisbane fax number, whereas document 37 was sent to Ms Steele-Wareham who was in Maryborough.
[33]Kill p 8-53, 55, 62 – that is to say, dismissed.
In response on 12 January 2009 Ms Kill wrote to the union, pointing out that the complaints had been referred to the CMC for independent consideration and assessment, and that there would be an external and timely investigation process if the matter was referred back to the Department for action: document 56 p 6. She proposed to ensure that the “impacted staff” were reminded of their obligations under the Department’s Code of Conduct, and to make a particular person in Human Resources available who could support staff and discuss concerns they might have during the period until the investigation was finalised.[34] In addition, Ms Steele-Wareham was assigned to provide support for all staff and monitor the operations of the MSC[35]: document 25, which drew attention to the Employee Assistance Service. For practical purposes, she took over management of the MSC: documents 47, 48; p 9‑28.
[34]To give effect to this, a senior executive sent a circular to all staff (including the plaintiffs) at MSC the same day: document 22. It drew attention to the EAS.
[35]Ms Steele-Wareham maintained that this occurred on 16 January 2009: p 9-10, but see p 9-22. Document 25 shows it had occurred by 13 January 2009.
On 13 January 2009 Ms Johnson wrote to the CMC, enclosing 68 pages of supporting material; they referred the complaints back to the defendant for investigation.[36] This led in March 2009 to the appointment of an external investigator, Mr Albietz, a former ombudsman, who was subsequently joined by Mr Smith, a principal investigation officer at the Misconduct Prevention Unit of the Department, for the purpose of an independent inquiry into the complaints: document 2 p 9.
[36]A letter by Johnson to the CMC Exhibit 32 dated 19 January 2009 enclosing the statutory declaration document 10 was referred to the department: Smith p 6-41. The department had already referred the complaints it had to the CMC. A copy of the 25 statements sent became Exhibit 18.
Early on 14 January 2009, Mr Costello sent an email to the plaintiffs and three other people, emphasising some (unidentified) directions given to them earlier in the week, drawing attention to the memo document 22, stating that it was of the utmost importance that they act in line with the Code of Conduct at all times, and requesting them to refrain from discussing this matter generally with any other employees: document 29.[37]
[37]Neither this email nor document 26 could have been in response to document 37, as they preceded it. It is possible that they were a response to document 56.
There was a stop work meeting organised on 14 January 2009,[38] at which 38 members of the AWU carried a vote of no confidence in a number of people, starting with the Acting Director-General but including Ms Hayes, Ms Greenhalgh and Ms Palmer: document 28.[39] There was also a conference held at the Industrial Relations Commission on that day,[40] although I have little evidence about what happened there.
[38]Document 31; document 28
[39]Ms Kill took this as a sign that they took the dispute seriously, but said it did not affect her decisions: p 8‑56.
[40]Document 91; also on 21 January 2009, and see document 52.
The plaintiffs other than Ms Hayes, and some other people, were sent an email by Ms Steele-Wareham late on that day advising that the conference finished at about 4.30 p.m., that Ms Johnson and one other person participated with the union, and a number of additional statements were presented which would be provided to the Department for its response, but there was no further action to be taken: document 26. The email continued:
“Each of you is requested not to discuss these matters with any RCO or other staff. Should anyone want to discuss matters with you they are to be referred directly to Brendan [Costello] and if they feel uncomfortable speaking with Brendan they are to be referred to me. You are also requested not to seek out any information on these matters from any staff. I will ensure people are kept up to date with information as it becomes available. Should staff wish to meet as a group via union or other meetings to discuss these matters you are requested not to participate.”
The email also drew attention to the availability of the employee assistance scheme. The plaintiffs interpreted these emails[41] as an instruction that they were not to talk to each other, or other management staff, or their own union.[42] This left them feeling isolated and unsupported by the Department. The AWU released information to the media: documents 34, 36, 46.[43] The AWU was also actively seeking statements from members in pursuit of its campaign: document 35.
[41]Correctly, in the case of document 26: Steele-Wareham p 9-22, 23.
[42]Hayes p 1-53, p 2-31.
[43]Hayes p 2-44.
There was a further meeting of RCOs held at 10 a.m. on 16 January 2009, attended by 42 people, at which it was resolved that the Department be asked to stand down seven persons including three of the plaintiffs: document 37.[44] This meeting was organised by Ms Steele-Wareham, working with the local AWU organiser. The invitation sent out by Ms Steele-Wareham said that he was “supportive of working with [her] as an independent person to understand your concerns”: document 38. She attended the meeting, and said that there were a number of complaints voiced at that meeting, general comments about decision-making by managers, particularly in terms of promotions, and examples were given: p 9-81. The people raising issues seemed to be genuine about what they were saying, and appeared to be talking generally about matters that had some substance attached to them: p 9-82.[45]
[44]I suspect this was the letter Ms Harris saw on 17 January (a Saturday) and passed on to Brisbane: p 4‑60 but see p 5-38. On 16 January Ms Kill informed the union that Ms Palmer, Ms Hayes and Ms Greenhalgh would be moved to other duties: agreed facts 24-26; document 49, which is not accurate.
[45]This was in response to a question where I invited her to compare the complaints with paragraph 1 in appendix B to document 8, a complaint by someone else which is manifestly nonsense.
Ms Steele-Wareham said her purpose in calling the meeting was essentially to find out the scope of the unrest among the workforce (p 9-10) and she had made it clear that she was not there to make judgments or decisions about issues that were raised, but just to report back to the Director-General, as indeed she did: p 9-11. Her presence did not pacify the union, or was seen as a sign of weakness, because they proceeded to organise a picket of the MSC on 19, 20 and 21 January 2009.[46] There was shouting and at times placards were banged against the office windows.[47] There were no special security arrangements in place: p 5-63.
[46]See e.g. document 39, 43, 44. It may not have extended to 21 January: see Steele-Wareham p 9‑25. Cuskelly p 5-55, 60, 79.
[47]Palmer p 4-50; Greenhalgh p 2-68; Hills p 7-62; Byrnes p 7-25, 26; Sexton p 7-36.
Ms Kill said that she decided Ms Palmer and Ms Hayes would be moved from their current positions into different positions, and that Ms Greenhalgh would be moved to take up the position to which she was moving anyway as a result of an earlier decision: p 8-54. She did not identify when this decision was taken, but it was while she was Acting Director-General.[48] She said that her primary concern was about maintaining a quality service for the residents and remedying the conflict which had arisen, and she concluded that this would act as a circuit breaker: p 8-54, 55. It was not simply a question of doing the union’s bidding, particularly in circumstances where the union was seeking more substantial action against these and other officers, but her concern was that the service was at risk, the residents were at risk and there was a risk of harm to staff as a result of the conflict with other staff. No documentation in relation to this decision was produced.
[48]From other evidence it was taken at the latest on 16 January, and I suspect it was taken that day, after she had heard about the meeting that morning.
Ms Kill said that she would expect that, if staff were being transferred to another position pending the outcome of the investigation, the rationale for this move would be explained to the staff concerned, and that this did not mean that the Department had accepted that the complaints that had been made were justified: p 8‑63. She expected that the officers would be told that their redeployment was temporary, though indefinite: p 8-64. She said that she recalled instructing[49] that the staff be clear that the investigation was a separate matter that was not being prejudged, that they were employees in good standing, but that she had made the decision that these changes were necessary, in the interest of maintaining the service to the residents: p 8‑64. The things that she expected to be communicated were the decision which she had taken, and her rationale for taking it (that is to say because of the importance of continuing the service to the residents), that this decision was not related to the investigation that was underway, and that they were officers of good standing: p 8‑80.[50] It is clear from her evidence that the industrial relations situation was an important consideration in the decision to move the staff, though she was not prepared to say that if there had been no industrial relations issues they would not have been stood aside simply because of the nature of the complaints themselves; that was an issue which would be decided on a case by case basis in the light of the specific complaints: p 8-65.
[49]Her directions in this regard would have been given to Ms Davis: p 8-66.
[50]The plaintiffs’ evidence indicates that these instructions were not complied with. See also Steele‑Wareham p 9-35. Clearly they ought to have been, but this was not relied on as a particular of negligence.
Ms Kill said that she did assess the risk to the plaintiffs, but she did not consider that that was something that ought to have been communicated to them when they were told of the decision to move them: p 8-69. The risk to the relevant officers that she had in mind was that hostility which had developed and conflict as a result of that hostility could be harmful to them: p 8-80. She was told by senior executives that managerial staff were being treated dreadfully, and that it was sustained. The union was told that these staff were to be moved, and they were not consulted about whether the union would be told: p 8-73. Ms Kill was not convinced that the MSC would be able to arrange adequate coverage for all of the houses in the event of a strike: p 8-75.[51] She knew that in a heated industrial dispute the requirement that RCOs not leave a resident without care might not be complied with, having had experience in the past where that had occurred: p 8-76. These steps would not necessarily prevent industrial action: p 8-77.
[51]The MSC had plans to deal with strikes but they seemed to me to be limited only to short strikes: Palmer p 3-63; Steele-Wareham p 9-54; Greenhalgh p 2-53.
Effect on the plaintiffs
About 15 January 2009 Ms Hayes was told that she was being moved to a different position,[52] because the RCOs were not happy about her going to the homes, and she was given a position as community resources officer, which she was told was the only role available: p 48, 49.[53] She was not happy about this because, although her pay was not reduced, this was a lower status position and she felt as though she was being punished: p 49. She said she was told that this had to be done pending the investigation, became upset and went home. The combination of things left her feeling unable to continue at work: p 2-33. Ms Steele-Wareham said she told her it was not in her best interests to be continuing to deal with the workforce given their attitude; she regarded it as unsafe: p 9-12.[54] Ms Hayes subsequently consulted a doctor, and went off work with stress: p 53. She put in a claim for workers’ compensation: p 54.
[52]Probably on 17 January, since the decision was apparently taken on 16 January, and Ms Steele-Wareham was told after the meeting on 16 January: p 9-11; but see p 9-32, where she appears to have accepted the contrary, I think incorrectly.
[53]Ms Steele-Wareham did not consider that it was viable for her to continue as a service manager but without contact with RCOs: p 9-33. The point was probably academic: p 9-34.
[54]See also p 9-31, p 9-33.
According to Ms Greenhalgh she was told by Ms Steele-Wareham that she and the others against whom the complaints had been made were not allowed to talk to each other in relation to the dispute: p 2-63. She did not ask any questions. They were told it was a union dispute. The next day she was asked by Mr Costello whether she was still happy to act in the service manager’s position and she said she was,[55] but the following day she had a phone call from Mr Price, another manager, advising that she was to move immediately to a position that she had previously applied for with a different team: p 2-64. She had been advised in November that she had been successful in this application (document 17), but had stayed on in her position because of a need for some continuity because of difficulties posed by a particular resident who had challenging behaviours. No doubt this move was somewhat disruptive for her given that she was being kept on in the former position specifically to deal with this task, but it could hardly be characterised as some form of disciplinary action or unfair treatment. Nevertheless, she saw this as a process of giving in to the RCOs, since she knew that they had wanted her and other managers moved away: p 2-66. She started in her new position on 2 February 2009: document 101.
[55]See the exchange of emails on 15, 16 January 2009, document 33.
When she moved into her new position Ms Greenhalgh did some training, which involved going to Brisbane: p 2-91. She was told at some point at a meeting[56] that she would receive details of the process of investigations that she would be involved in, but at that stage no details of the allegations.
[56]Presumably on 16 April 2009: document 62, when she was given a letter to her about the enquiry dated 15 April, document 59.
In January 2009 Ms Palmer was told by Mr Price that some allegations had been made against her and as a result she was being stood aside from her position, but he did not say what the allegations were.[57] For that purpose she was also required to leave her usual work station, and was given a different desk: p 3-74. Her work station had been especially set up with appropriate aids because of a shoulder problem that she had: p 3-69.[58] Although Ms Palmer had been removed from her position, and from her desk, she was not given anything else to do: p 4-4. Someone else who had had some training but whom she did not regard as up to speed was given her job to do, and she had to spend some time helping that person or dealing with queries from that person.
[57]Page 3-73, p 4-34; he seems to have said very little about why she was being stood aside.
[58]There was no evidence of a recurrence of the shoulder problem despite this, presumably because she did so little work at this desk. Otherwise, this was clearly negligent: Steele-Wareham p 9-43, 44, 51.
Ms Palmer was concerned to receive the email about the proceedings in the Industrial Relations Commission (document 26), particularly because of concern about what Ms Johnson would be saying to them: p 3-71. She also understood the email as indicating that they were not allowed to talk about the matter with anyone: p 4-9. She also received the email from Mr Costello dated 14 January, document 29: p 4-8.
Ms Palmer was in the office on one occasion when there was picketing organised by the AWU and she was terrified by it: p 3-74. At the time of the picketing, while she was in the office she saw on a table some documents from the AWU which had her name on them: p 3-75.[59] She put in a workplace injury report form in relation to this.[60] She said that during the picketing there was chanting and at times placards were being banged against windows: p 3-76. She thought that the picketers were angry and that they seemed to be out to hurt someone, which particularly frightened her: p 3-77. She was too frightened to stay in the building and she was escorted out to her car through the back door by Ms Greenhalgh, and went home: p 3-77. She complained at the time to Mr Price: p 3‑78.
[59]This referred to the motion of no confidence in her and others passed at the meeting on 14 January: document 28.
[60]Document 41; Cuskelly p 5-56. The form would have gone to Mr Price: p 5-63.
Ms Greenhalgh was then still working from the same office building, though in a different section, so that she was aware of the picketing, she thought, on 19-21 January 2009: p 2‑67. She was upset by it, particularly when they were hitting the windows with their placards, and she was told that one of the picketers, a Mr Smith, had entered the foyer of the building: p 2-68.[61] She submitted workplace injury report forms as a result of her feeling stressed, harassed, intimidated and bullied by the picketers: documents 44, 51. She did not receive any feedback in relation to those forms. She felt a lack of management support in the building, although at the time she was being managed by the Sunshine Coast office: p 2-69.
[61]As well, Ms Johnson, who was picketing, came into the office at times: Cuskelly p 5-63.
Ms Greenhalgh said that during or just after the picketing she was speaking with Ms Steele‑Wareham, in the course of which Ms Steele-Wareham had asked, how could 60 RCOs be wrong: p 2-70, p 3-35. She replied that they could be wrong if they want what they want, not being happy with the fifth line rostering system referred to earlier.[62] Ms Steele-Wareham denied she said this: p 9-15, 53.
[62]Ms Greenhalgh told Ms Hayes of this, which upset Ms Hayes: p 2-8, 9.
At about this time Ms Steele‑Wareham told Ms Greenhalgh that there had been a complaint of racial vilification by her, supposedly at a team planning day which Ms Greenhalgh had run, and asked her what she had said at the meeting. Ms Greenhalgh said that she gave an account of a discussion in relation to the management of the processes for recording a client’s financial matters in circumstances where the client was visiting members of an extended family within the Aboriginal community: p 2-71. According to her Ms Steele-Wareham spoke about some other matter, and then told her that she would have to go and do cultural training,[63] because she had vilified. Ms Greenhalgh felt that she was being dealt with unfairly, because she was essentially being punished without there having been any proper investigation of the complaint, and without her having had the opportunity to tell her side of the story. She felt that Ms Steele-Wareham was treating her and the other managers as guilty, because of that comment and because she was not doing anything to help them.[64]
[63]To this point, this paragraph is uncontroversial: Steele-Wareham p 9-15. Something different was put in cross-examination: p 3-40, 41.
[64]Ms Steele-Wareham said this was not her decision: p 9-39. She understood it was part of an agreement Ms Kill made with the AWU. Ms Kill said nothing about this. Whoever took the decision, it was clearly wrong to pre-empt the decision of the enquiry in this way. (See Steele‑Wareham p 9-77.)
On 2 February Ms Palmer met with Ms Steele-Wareham, and had a discussion, the content of which Ms Palmer could not now recall, except that at the end of the conversation Ms Steele-Wareham said: “How can all those people be wrong?”: p 4‑7.[65] She was most upset about this because it appeared that Ms Steele-Wareham had decided that the allegations, the details of which Ms Palmer at that stage did not know, were justified: p 4-8. Ms Palmer cried, and that was the end of the meeting.
[65]See also cross-examination p 4-40. Ms Steele-Wareham denied saying this: p 9-15, 53.
Apart from a bit of helping out, and a trip to Townsville for work, Ms Palmer did not have any particular function until 17 February 2009 when the job that she was previously doing was split, another person was given responsibility for rostering, and she was to take care of payroll matters, though she was still not to have any contact with RCOs: p 4-13. This did not occupy her whole time, or close to it, in spite of the fact that nominally she had a long list of duties: document 54, p 4-14. Ms Palmer had been on a working party which was preparing a new rostering system, and she had some papers associated with this at her old desk: p 4-15. On 17 March 2009, she sought to retrieve them, and was told by the person who had taken over her rostering role that she had thrown them away. This interfered with that work and left her feeling very upset, as though she had been sabotaged. She was so upset that she went home. She saw a GP as soon as she could, and completed a workers compensation form, but her application was not immediately accepted: p 4‑16, document 70.
On 9 March 2009 Ms Greenhalgh was sent an email by Ms Steele-Wareham referring to the investigation process: document 57. At the time Ms Greenhalgh was on a training course, and did not in fact have access to her emails, and when she eventually discovered that the email had been sent she was upset that she had not been advised more promptly: p 3-7. In April 2009 Ms Greenhalgh had a conversation with Ms Harris who was complaining about the way the RCOs were behaving at a house at which she was working: p 3-8. She told her to speak to her manager, and subsequently had a conversation with Ms Steele-Wareham about the matter. Shortly after that, she was spoken to by her manager in her new position who instructed her that she was not to have any contact with people from the previous section. Up to then she understood that she was not to have contact with RCOs and residents, and she was quite upset that she was not allowed to have any contact, which indeed was not really consistent with the requirements of her new position.[66]
[66]Greenhalgh p 3-11; Steele-Wareham, p 9-41.
Ms Greenhalgh became so upset by this that she left the building and went home. Later she had an informal conversation with Mr Costello and after that when she happened to see Ms Steele-Wareham she had an anxiety attack: p 3-12. Subsequently, when Ms Steele-Wareham moved to Brisbane she felt better. Nevertheless, it appears that her stress reaction became more severe during 2010, to the point where in May she was unable to work at all.[67] She began a graduated return to work in August, and eventually she got back to full time work, but she still has anxiety symptoms at times, particularly when she sees certain RCOs: p 3-13. She is now working in a different building, which helps.
[67]Greenhalgh p 3-13. Earlier questions suggest that she was speaking of 2009, but other evidence confirms that she stopped work in May 2010.
Ms Harris was on leave from 18 to 26 January 2009.[68] When there were reports in the press she rang a couple of times, but was told, first by Mr Costello and then by Ms Steele-Wareham, that she was not involved in what was going on, and to enjoy her holiday.[69] At one stage she was told by another team leader that she had heard from an RCO that they were now out to get her as well, and she spoke again to Ms Steele-Wareham who again told her there was nothing to worry about: p 4‑62.[70] After her holiday she resumed her work as a team leader, but saw her GP complaining about stress from problems at work: p 5-35. She was prescribed medication.
[68]Agreed fact no 27; at p 4-61 she accepted that she left on 12 January, but I assume that was an error.
[69]This was not true, as Ms Steele-Wareham knew Ms Harris was involved at least by 14 January 2009: statement of claim para 5(w), admitted from para 4(a).
[70]See also Steele-Wareham p 9-13, 55.
In March 2009 Ms Harris had a week off work because she was upset about not being told anything, but she did want to work and she went back to work after that: p 4-72, p 5-35. On 15 April 2009 Ms Harris was given a letter about the investigation: document 61, p 4-63. It was shortly before this that she was first told by Ms Steele‑Wareham that she was involved, and that she was to be given the letter. She was quite upset about the letter, particularly about an allegation of racial discrimination; she found that particularly upsetting, because her husband, and her two children, are Aborigines. There was an occasion in April 2009 when there was a meeting with Ms Steele-Wareham during which Ms Harris became quite upset, and she later prepared a record of the meeting: document 7, p 4-67. She saw her GP again on 14 May, complaining of stress from work: p 5-35.
The independent inquiry promised by the Department got underway in March 2009,[71] but it was some time before they interviewed the plaintiffs. The plaintiffs were not given details of the specific complaints made against them prior to the time when they were interviewed.[72] Ms Palmer was interviewed on 27 April 2009: document 65, which she verified: p 4-17. Ms Palmer had subsequently a further interview: document 75, p 4-18. This further interview was because on the first occasion she did not have documents available to answer the charges, not having been given particulars of them beforehand, so a second interview was arranged for that purpose. Ms Harris was interviewed on 29 April 2009 (document 66) and again on 28 May 2009 (document 74). Ms Hayes was interviewed on 26 May 2009 (document 73). Ms Greenhalgh was interviewed on 28 May 2009: document 76.
[71]Exhibit 29, dated 12 March 2009.
[72]See their enquiry notice letters documents 59 (Greenhalgh), 60 (Palmer), 61 (Harris) and 63 (Hayes), all dated 15 April 2009.
On the whole I think this plaintiff’s psychiatric condition is currently not as bad as that of Ms Palmer, but Ms Greenhalgh is younger and in all the circumstances I assess damages for pain and suffering and loss of amenity at $60,000, of which I would apportion $22,000 to past loss. The psychiatric injury developed over a period of time, but for ease of calculation I would allow interest for six years at 2%, an amount of $2,640.
With regard to past economic loss, it appears that for at least most of the period the plaintiff was off work she was receiving workers’ compensation payments, so that the amount of her refundable compensation payments would be a starting point for past economic loss. For the plaintiff it was submitted that there was some continuing loss of income in the form of $50.00 a week because there were some managerial duties that she had previously been performing which she was not now able to handle. It is not clear however that that is supported by the evidence.
Document A19 suggests that there was some loss of a net income in 2010, 2011 and 2012: the net income in 2009 was $54,725.00, in 2010 only $50,495.00, in 2011 a total of $49,914.00, and in 2012 a total of $49,548.00. That suggests a net loss of about $5,000.00 per annum apart from the loss of earnings made up by workers’ compensation payments, but I do not know even whether that loss continued. This may be a reflection of the loss of the managerial role; it does appear that her position changed from Service Manager to Specialist Response Officer on 12 September 2011, and I would expect there would be some change in her pay rate associated with this, though I have no evidence of it. Indeed, it is not clear whether, when Ms Greenhalgh was working just four days a week in late 2011 and early 2012, this was because her psychiatric injury effectively prevented her from working longer hours, though given the evidence about the severity of that injury I would expect that it was for that reason.
The position is quite unsatisfactory, but I am not going to speculate about the periods of time not covered by the evidence before me. In relation to the three years however where there is a loss of net income of about $5,000 a year suggested by document A19, I would allow that sum of $15,000, together with the workers’ compensation refund of $50,614.77: Exhibit 6, document A13, p 11. This gives a total for past economic loss of $65,614.77, and I would allow interest on the out of pocket loss of $15,000 for four years at 10%, in the amount of $6,000. There should be a further amount of 12% of past loss allowed for loss of superannuation entitlements, which comes to $7,874.
As to future economic loss, I assume at the present time the plaintiff is not suffering any economic loss; at least, the evidence does not demonstrate to the contrary. She loses some time due to the effect of her psychiatric injury, but there was no evidence that this cannot be accommodated in the sick leave available to her. I suppose there is some risk that her condition would deteriorate to the point where she would be no longer able to work, or to keep working for this employer, but given that her work is continuing, that chance would appear at the moment to be fairly slight. Of greater significance perhaps is that she appears to have lost interest in her career, is probably not interested in pursuing promotion which may otherwise have come her way, and now has in mind retiring much earlier than she otherwise would have.
For the plaintiff it was submitted that a global sum of $150,000 should be awarded to accommodate this, though that was obviously not particularly related by any calculations to her current level of income, or any particular potential level of income. If she is retiring earlier because of the effect of her psychiatric injury is to cause her to lose interest in work, the economic loss she will suffer because of the earlier retirement is compensable.[166] Using a current net income of $1,000 per week, the loss of 10 years work beginning in 10 years’ time has a present value of $250,000.[167] There is a chance that she may work for longer than this, but there is a chance that her condition may deteriorate and she may not work that long, and this factor does not make any allowance for any loss of the chance of improved earnings from promotion. In those circumstances, it is probably conservative, and I will not discount it further for vicissitudes of life. For future economic loss I would have allowed $250,000, and 12% of that should be allowed for loss of superannuation, a further $30,000.
[166]Medlin v SGIC (1995) 182 CLR 1; Hirst v Nominal Defendant [2005] 2 Qd R 133.
[167]The multiplier in Luntz, op cit, for 20 years, 666, minus the multiplier for 10 years, 143, gives a multiplier of 253.
A Fox v Wood allowance of $4,052 was not controversial. Expenses paid by WorkCover were rehabilitation expenses totalling $7,434.50, travel expenses of $675.30 and medical expenses including chemists’ expenses of $12,918.28.[168] In addition there was a further $5,054.80 medical expenses recoverable by Medicare.[169] This is a total of $26,082.88. In addition there was a claim for out of pocket expenses, essentially on a global basis, of $2,500, which appears to be not particularly contentious and I would allow it, together with interest on that sum for six years at 5% per annum, $750. There was evidence that the plaintiff requires further psychiatric treatment at a cost of $9,000, and despite the difficulties with antidepressants there may well be some further costs for medication, and some costs for other medical attendances; for future expenses I would allow a total of $12,000.
[168]Exhibit 6, document A13.
[169]Again this figure comes from the submissions, not document A17.
Accordingly my precautionary assessment of Ms Greenhalgh’s damages may be summarised as follows:
(a) General damages $60,000.00 (b) Interest on $22,000 $2,640.00 (c) Past economic loss $65,614.77 (d) Interest on past economic loss $6,000.00 (e) Loss of past superannuation $7,874.00 (f) Future economic loss $250,000.00 (g) Loss of future superannuation $30,000.00 (h) Fox v Wood $4,052.00 (i) Special damages $28,582.88 (j) Interest on out of pockets $750.00 (k) Future expenses $12,000.00 SUBTOTAL $467,513.65 Less WorkCover refund -$71,642.85 TOTAL $395,870.80
In each matter there will be judgment for the defendant. I will receive submissions as to costs after these reasons are delivered, but expect that they will follow the event.
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